News & Events
Skarzynski Marick Secures Appellate Win In $20 Million BIPA Settlement Claim
Skarzynski Marick & Black LLP secured an appellate victory involving coverage for a $20 million settlement under an AXIS Pro TechNet Solutions Technology Professional Services Liability Policy for alleged violations of the Illinois Biometric Privacy Act. Thornley et al. v. AXIS Insurance Co., 2025 IL App (1st) 241480-U. On October 15, 2025, the Appellate Court of Illinois, First Judicial District affirmed the lower court’s judgment in favor of AXIS. Skarzynski Marick also represented AXIS Insurance Company in the trial court.
In December 2019, the insured, Wynndalco Enterprises Inc., a technology services company, allegedly published a database containing biometric information of Illinois residents in violation of the Illinois Biometric and Information Privacy Act (“BIPA”)(740 ILCS 14/a et seq. (West 2020)). The underlying plaintiffs filed a class-action lawsuit against Wynndalco and CDW-Government alleging a violation of Section 15(c) of BIPA as well as claims for unjust enrichment and invasion of privacy. AXIS declined coverage under the claims-made and reported technology professional policy. Wynndalco settled with the Class for $20 million and assigned its rights under the AXIS policy to the Class. The Class then filed a declaratory judgment action in the Circuit Court of Cook County, Illinois, seeking to recover the full settlement value under various causes of action.
AXIS successfully moved for judgment on the pleadings, arguing it did not owe a duty to defend under the policy where the alleged “Wrongful Act” or “Enterprise Security Event” (as those terms were defined by the policy) occurred prior to the “Retroactive Coverage Date” (the inception of the policy, February 20, 2020). There was no dispute that the alleged publication occurred in December 2019 when Wynndalco allegedly purchased and resold the Clearview database. The Appellate Court agreed, concluding that, whether the publication constituted either a “Wrongful Act” or an “Enterprise Security Event”, the action indisputably took place before the policy’s Retroactive Coverage Date. Writing for the panel, Justice Martin rejected the argument by the Class to rewrite the policy and reasoned, to “take the ‘deem to occur’ language found in the policy’s claims-reporting section and apply that language to the policy’s claims-coverage section. Plaintiffs are essentially asking this court to rewrite the policy. We refuse to do so.”
In December 2019, the insured, Wynndalco Enterprises Inc., a technology services company, allegedly published a database containing biometric information of Illinois residents in violation of the Illinois Biometric and Information Privacy Act (“BIPA”)(740 ILCS 14/a et seq. (West 2020)). The underlying plaintiffs filed a class-action lawsuit against Wynndalco and CDW-Government alleging a violation of Section 15(c) of BIPA as well as claims for unjust enrichment and invasion of privacy. AXIS declined coverage under the claims-made and reported technology professional policy. Wynndalco settled with the Class for $20 million and assigned its rights under the AXIS policy to the Class. The Class then filed a declaratory judgment action in the Circuit Court of Cook County, Illinois, seeking to recover the full settlement value under various causes of action.
AXIS successfully moved for judgment on the pleadings, arguing it did not owe a duty to defend under the policy where the alleged “Wrongful Act” or “Enterprise Security Event” (as those terms were defined by the policy) occurred prior to the “Retroactive Coverage Date” (the inception of the policy, February 20, 2020). There was no dispute that the alleged publication occurred in December 2019 when Wynndalco allegedly purchased and resold the Clearview database. The Appellate Court agreed, concluding that, whether the publication constituted either a “Wrongful Act” or an “Enterprise Security Event”, the action indisputably took place before the policy’s Retroactive Coverage Date. Writing for the panel, Justice Martin rejected the argument by the Class to rewrite the policy and reasoned, to “take the ‘deem to occur’ language found in the policy’s claims-reporting section and apply that language to the policy’s claims-coverage section. Plaintiffs are essentially asking this court to rewrite the policy. We refuse to do so.”