MARCH 2024  11 
THE STATUTORY 
VIOLATION EXCLUSION
Certain statutes are well-known for 
spawning litigation. To that end, in­
surers have noted their unwillingness 
to insure against such claims. In a 
typical policy, the Statutory Violation 
exclusion would mean the insurance 
did not apply to any injury arising 
out of a violation of:
	
p. Recording And Distribution 
Of Material Or Information In 
Violation Of Law
	
Personal and advertising injury 
arising directly or indirectly out 
of any action or omission that 
violates or is alleged to violate:
	
(1) The Telephone Consumer 
Protection Act (TCPA), including 
any amendment of or addition to 
such law;
	
(2) The CAN-SPAM Act of 2003, 
including any amendment of or addi­
tion to such law;
	
(3) The Fair Credit Reporting 
Act (FCRA), and any amendment of 
or addition to such law, including the 
Fair and Accurate Credit Transac­
tions Act (FACTA); or
	
(4) Any federal, state or local 
statute, ordinance or regulation, oth­
er than the TCPA, CAN-SPAM Act 
of 2003 or FCRA and their amend­
ments and additions, that addresses, 
prohibits, or limits the printing, 
dissemination, disposal, collecting, 
recording, sending, transmitting, 
communicating or distribution of 
material or information.[12]
	
In Krishna, the Illinois Supreme 
Court reviewed a “very similar” 
exclusion and found the BIPA statute 
was not “a statute of the same kind 
as the TCPA and the CAN-SPAM 
Act,” since the Act does not regulate 
methods of communication.[13] 
	
For those courts finding the 
Statutory Violation exclusion does 
not apply, BIPA is simply not the 
same kind of statute as the TCPA, 
the CAN-SPAM Act, or the FCRA.
[14] These statutes regulate methods 
of communication (the TCPA and 
CAN-SPAM) and the use of materials 
(the FCRA).[15] BIPA, by contrast, 
“regulates the collection, use, storage, 
and retention of biometric identifiers 
and information.”[16] At best, it is 
unclear whether BIPA is sufficiently 
similar to the listed statutes; at worst, 
it is different in kind.[17] For those 
courts finding the Statutory Violation 
exclusion does apply, BIPA “is of the 
same kind, character and nature as 
the enumerated statutes” because 
all the statutes “protect and govern 
privacy interests in personal infor­
mation.”[18]
BIPA Lawsuit?
	
In Visual Pak, the First District 
Court of Appeals found the exclusion 
language before it was broader than 
that found in the Krishna case.[19] 
The Visual Pak court also noted that 
it was “simply impossible to deny that 
it [the statutory exclusion violation] 
describes BIPA.”[20] On this issue, 
the Illinois Court of Appeals dis­
agreed with the Seventh Circuit’s de­
cision in Wynndalco, finding the fed­
eral court had given “too little credit 
to the reasonable person purchasing 
this business liability policy.”[21] All 
of the statutes listed in the exclusion 
dealt with issues of personal privacy, 
which meant “an underlying lawsuit 
alleging a violation of BIPA would 
fall under the catchall phrase of the 
violation-of-law exclusion” found in 
paragraph 4.[22]
EXCLUSIONS FOR 
EMPLOYMENT-RELATED 
PRACTICES AND ACCESS 
OR DISCLOSURE
In light of this ruling, the Visual 
Pak court declined to address either 
the Employment-Related Practices 

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