From BIPA to GIPA: Another Four-Letter Word in Illinois Class Action Litigation, Part 1

This week, Baker Sterchi is dedicating this blog to a discussion of the Genetic Information Privacy Act (‘GIPA”). In a five-part series of posts, we examine GIPA’s background, key provisions of the Act, the remedies available under GIPA, certain types of GIPA cases being filed, and considerations for companies regarding GIPA litigation.

Today, we examine the background of GIPA:

As discussed in prior Baker Sterchi blog posts, including here, here, and here, the Illinois Biometric Information Privacy Act (“BIPA”) has dominated the Illinois class action landscape for several years. There are no signs of BIPA litigation slowing down.  Rather, five times as many BIPA lawsuits were filed in 2022 compared to 2018, and over 400 BIPA lawsuits were filed in Illinois in 2023.

There is another four-letter statute, however, of which companies doing business in Illinois should be aware:  GIPA.  GIPA, or the Genetic Information Privacy Act, was enacted in 1998.  GIPA was amended in 2008, in part, to align with certain provisions of the federal Genetic Information Nondiscrimination Act of 2008.  According to the legislative intent section of GIPA, many members of the public were deterred from seeking genetic testing because of fear that test results would be disclosed without consent in a manner not permitted by law or would be used in a discriminatory manner.  Additionally, the legislature stated an intent that disclosure of genetic information required under the Health Insurance Portability and Accountability Act (“HIPPA”) be performed in accordance with HIPPA’s “minimum necessary standard.” 

Until recently, few GIPA lawsuits were filed.  According to our research, only two GIPA class action lawsuits were filed in 2021, and zero were filed in 2022.  By contrast, 30 GIPA class action lawsuits were filed in 2023.  What led to this surge in filings?  Likely several factors, including the similarity of the right of action and remedy provisions in GIPA and BIPA, which we will further discuss later this week.  Another likely factor is the recent approval of a class and subclass of plaintiffs in a GIPA suit by the District Court for the Northern District of Illinois.  On August 3, 2023, the court granted the plaintiff’s motion for class certification in a case alleging that Sequencing, LLC violated GIPA by disclosing its customers’ genetic information to unknown third-party developers without first obtaining those customers’ consent.  Melvin v. Sequencing, LLC, 344 F.R.D. 231 (N.D. Ill. 2023).