Who Pays for the Face Scan? Insurance Coverage for Biometric Privacy Claims After the 2026 BIPA Exclusion Rulings

Cort T. Malone, Shareholder | Anderson Kill P.C
Cort T. Malone is a shareholder in Anderson Kill’s New York and Stamford offices and co-chair of the firm’s Biometric Liability Insurance Recovery Group. An insurance coverage litigator, he represents policyholders in disputes under commercial general liability, cyber, employment practices liability, advertising injury, directors and officers, and property policies, and he has obtained insurer defense and indemnity contributions toward the settlement of BIPA class action claims.

• Education & Credentials

He received his J.D. from Fordham University School of Law, where he served on the Moot Court Board and earned several awards for oral argument and brief writing in inter- and intra-school competitions, and his B.A. from Brown University. He is admitted to practice in New York and Connecticut and before the U.S. District Courts for the Eastern and Southern Districts of New York and the U.S. Court of Appeals for the Sixth Circuit. He returned to Fordham Law as an adjunct professor, teaching the first-year Legal Writing course for five years.

• Recognition & Leadership

He has been a shareholder at Anderson Kill since June 2011, when the firm promoted him in its New York office, and now co-chairs the firm’s Biometric Liability Insurance Recovery Group, a practice he has led since before John Leonard joined him as co-chair in 2023. Within the American Bar Association’s Insurance Coverage Litigation Committee, he co-chairs the Advertising Injury Subcommittee and previously co-chaired the Computer Technology Subcommittee. His biometric coverage work has been featured on the Emerging Litigation Podcast (June 2024) and in Risk & Insurance’s coverage of biometric settlements (2024). He is a member of the Federal Bar Council and the New York State and Connecticut Bar Associations.

• Professional Involvement

He has spoken on biometric coverage at the RIMS RISKWORLD Conference (2023 and 2022) and HB Litigation Conferences (2024), and on AI and insurance at the National Association of Public Insurance Adjusters (2023) and Anderson Kill’s 2025 program on the intersection of AI and insurance. His biometric writing includes “Insurance Considerations for Claims Involving Facial Recognition and Other Biometric Technology” (Policyholder Advocate, 2025), “Six Tips for Managing Liability and Insurance for Facial Recognition and Other Biometric Technology” (New York Law Journal, 2025), an alert on the Seventh Circuit’s Wynndalco decision (2023), “Insurance Considerations for Biometric Liability” (Risk Management Magazine, 2023), and “A New Frontier: Insurance Coverage for Violations of Biometric Privacy Acts” (New York Law Journal, 2021). He is a member of the Federal Bar Council and the New York State and Connecticut Bar Associations.

• Experience

His biometric matters include securing insurer defense and indemnity contributions toward the settlement of BIPA class action claims against a transportation company. He has also procured insurance reimbursement for companies that suffered cyber hacking and ransomware losses, negotiated specially endorsed COVID-19 coverage for a nationwide hospitality company, defended D&O policyholders against rescission attempts, and obtained a jury verdict in favor of coverage for California’s clean-up of the Stringfellow Acid Pits.

Jamie O’Neill, Attorney | Anderson Kill P.C.
Jamie O’Neill is an insurance recovery attorney in Anderson Kill’s New York office who represents policyholders exclusively, with a developing focus on artificial intelligence and emerging technology risk. She co-chairs the firm’s Artificial Intelligence Group.

• Education & Credentials

She received her J.D. from Fordham University School of Law, where she was a Crowley Scholar in International Human Rights, a research assistant at the Leitner Center for International Law and Justice, Online Editor of the Fordham Intellectual Property, Media & Entertainment Law Journal, and a participant in the Mediation Clinic. She earned her B.S., magna cum laude with Honors Research Distinction, from The Ohio State University. She is admitted in New York and New Jersey and before the U.S. District Courts for the Southern District of New York and the District of New Jersey.

• Recognition & Leadership

She co-chairs Anderson Kill’s Artificial Intelligence Group. At Fordham Law she was named a Crowley Scholar in International Human Rights, and she graduated magna cum laude with Honors Research Distinction from The Ohio State University. Her LexisNexis primer on AI’s technical foundations, legal implications, and insurance coverage is described as the publisher’s first insurance-focused generative AI publication.

• Professional Involvement

She presented “Who’s Watching? AI Identification, Biometric Privacy, and the Coverage That Responds” at the 2026 WTW Retail & Distribution Division Annual Conference and spoke on the legal risks of implementing AI systems at an Association of Corporate Counsel Nevada CLE in 2026. She co-authored a LexisNexis primer on AI’s technical foundations, legal implications, and insurance coverage, and her articles include “Meta Coverage Ruling Could Erode Broad Duty To Defend” (Law360, 2026), “Mind the Agent: The Hidden Risks of Agentic AI for In-House Counsel” (New York Law Journal, 2026), “Testing the Boundaries of Product Liability for AI Products” (Mealey’s Emerging Insurance Disputes, 2025), “Insurance for AI Liabilities: An Evolving Landscape” (Dataversity, 2025), and “Trends in AI Insurance Coverage and Claims Handling” (Risk Management Magazine, 2025).

• Experience

Her practice centers on recovering insurance for policyholders facing AI and emerging technology claims, drawing on an undergraduate background in computational and statistical methods, including machine learning, data visualization, and algorithmic analysis. She has spoken at Anderson Kill’s Cyber Insurance Recovery Conference (2025) and its Policyholder Advisor Conferences (2025 and 2026), including an update on the cyber insurance and ransomware claims environment (2022), and has written on New York Insurance Law § 3420(d)(2) disclaimer requirements, the pollution exclusion, AI-driven loss prevention in retail, and PFAS exposure under CGL policies.

SESSION 1 – Biometric Privacy Claims in 2026: The National Patchwork, the Litigation Landscape, and Which Policies Respond | Cort T. Malone & Jamie O’Neill | 2:30pm – 3:30pm

This session examines how biometric privacy exposure has spread across the country and how insurance responds to it. Attendees will learn how Texas’s Capture or Use of Biometric Identifier Act (CUBI) and Colorado’s new employer requirements have extended biometric risk beyond Illinois, how the 2024 BIPA amendment has reshaped exposure, and why mass arbitrations and attorney general enforcement have become the new front lines. The session then turns to coverage: which policy lines may respond to a biometric claim, how biometric data flowing through vendors (timekeeping systems, security cameras, customer apps) complicates the question of whose policy responds, and how to tender a biometric claim effectively.

BREAK | 3:30pm – 3:40pm

SESSION 2 – The Coverage Fight: Litigating the BIPA Exclusions, Preserving Coverage, and the Facial Recognition Frontier | Cort T. Malone & Jamie O’Neill | 3:40pm – 4:40pm

This session examines how coverage disputes over biometric claims are being decided. Attendees will learn how Illinois federal courts applied the access-or-disclosure and statutory-violation exclusions in Sentinel v. Majestic Auto Glass (N.D. Ill. 2026), JJM Group v. West Bend (N.D. Ill. 2025), Harleysville v. Thermoflex (N.D. Ill. 2025), and Phoenix v. Ackercamps.com (S.D. Ill. 2025); why the Seventh Circuit’s Wynndalco decision and the Illinois Appellate Court’s Visual Pak decision still point in opposite directions; and how Thornley v. Citizens Insurance (N.D. Ill. 2026) revived a $20 million BIPA settlement claim under the mend-the-hold and waiver doctrines after the insurer raised its exclusion late and relied on a general reservation of rights. The session then turns to the policyholder’s playbook for tendering a biometric claim and answering a reservation of rights, and closes with the next frontier: facial recognition and voice-cloning claims that sit at the intersection of biometric privacy and AI, where ISO’s January 2026 generative AI endorsements, carriers’ absolute AI exclusions, and the new AI sublimits all come into play.