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Cook, Madison and St. Clair Counties, Illinois

The powerful plaintiffs’ bar continues to dominate Cook, Madison and St. Clair Counties, and the legal climate has further deteriorated following the 2018 elections. The three counties are on the forefront of “no-injury” lawsuits and remain hotspots for asbestos litigation. Not only are the prospects for reform grim, but the state legislature passed an aggressive pro-plaintiff agenda in 2019 with more of the same expected in 2020.

This is disappointing news for a state in desperate need of economic growth and job creation. Excessive tort costs to the Illinois economy result in $4.5 billion in annual direct costs and 81,685 jobs when dynamic effects are considered, according to a Perryman Group study. Excessive tort litigation costs the Chicago-Naperville-Elgin metro area $3.8 billion in direct costs and 68,024 jobs alone. These excess costs result in a “tort tax” of $811.13 per person. Chicago has the second worst financial condition among the 75 most populous cities in the country.

ILLINOIS SUPREME COURT OPENS THE FLOODGATES TO “NO-INJURY” BIPA LAWSUITS

Illinois lawmakers enacted the Biometric Information Privacy Act (BIPA) in 2008, which provides a private right of action for those whose biometric information is collected, used, sold, disseminated or stored in a manner that does not fully comply with the state law. This made businesses vulnerable to massive potential liability in Illinois. Just since January 2018, more than 250 lawsuits have been filed.

BIPA requires companies to inform an individual in writing and receive a written release prior to taking or retaining his or her biometric data. If a company fails to follow this procedure or meet other requirements, then any “aggrieved” person can seek the greater of $1,000 or actual damages for each negligent violation, and the greater of $5,000 or actual damages for each violation they allege was recklessly or intentionally committed.

Following BIPA’s enactment, class action trial lawyers immediately sought to cash in by targeting businesses that use iris scans, fingerprints and facial recognition data that are used increasingly to keep physical workplaces and sophisticated communications and cyber systems safe. These lawsuits do not allege any harm from collection of the information (which is encrypted) but seek substantial civil penalties along with attorney’s fees and litigation costs.

In January 2019, the Illinois Supreme Court issued its long-awaited decision in Rosenbach v. Six Flags Entertainment. The court found that a plaintiff does not need to have suffered actual harm to maintain and win a lawsuit filed under BIPA. This liability-expanding decision immediately led to a flurry of BIPA class action filings.

In Rosenbach, the plaintiff sued the amusement park company for BIPA violations after the park collected and stored his son’s fingerprints when they purchased a season pass so that they could easily enter and reenter the park. In a unanimous decision, the Court held that the mere violation of the statute was sufficient, meaning that a plaintiff only needs to show that a company took and stored biometric information without following the law’s consent and disclosure rules.

Following the Rosenbach decision, BIPA lawsuits against Walmart and Whole Foods were filed by their employees. Employees in both suits allege that the employer improperly collected and stored employee fingerprint data. It is common practice for employers to collect this data when employees “clock-in,” to keep track of hours worked. Plaintiffs simply allege that that they weren’t properly notified by the company before their fingerprints or handprints were scanned. They do not allege real world harm – i.e. the companies disclosed, profited from, or failed to secure the information.

Recently, the U.S. Court of Appeals for the Ninth Circuit made a similar ruling against Facebook, handing plaintiffs’ lawyers a big win. A three-judge panel ruled in August 2019 that three lawsuits using BIPA to target Facebook’s photo tagging tool could move forward as a consolidated class action, despite class members not suffering any actual harm. The risk of future harm, the Ninth Circuit found, was sufficient to provide the plaintiffs with standing to proceed in federal court.

The Illinois Supreme Court and Ninth Circuit rulings open the door to even more aggressive no-injury class actions and may discourage development and use of innovative technology.

For additional information about the growing liability concerns around BIPA and data privacy, see the “Closer Look” section later in the report.

A HOTBED FOR ASBESTOS LITIGATION

Madison County remains the preferred jurisdiction in the United States for plaintiffs’ lawyers to bring asbestos claims, with 1,091 filings in 2018, a slight decrease from the 1,129 in 2017. It still has almost three times the number of filings than its next closest competing jurisdiction, New York (347). Madison County makes up twenty-seven percent of 2018 filings nationwide, an increase in the concentration from 2017, despite the overall decrease in concentration in the Top 15 asbestos jurisdictions.

The playing field was further stacked against defendants when judges appointed Barry Julian as an Associate Judge on the Circuit Court that hears Madison County cases. Julian is a founding partner of Gori Julian & Associates, one of the top asbestos filers in the nation. He was appointed to the bench to fill a vacancy in 2019 despite the fact that he had become a Florida resident.

St. Clair County also continues to rise up the ranks as filings once again increased from 207 cases in 2017 to 268 in 2018. This marks a 30% increase, largely due to a thirty-five percent increase in lawsuits by the Gori Julian law firm claiming that asbestos is to blame for a client’s lung cancer. Plaintiffs flock to both the Madison County and St. Clair County courthouses due to their plaintiff-friendly reputation, low evidentiary standards, and judges’ willingness to allow meritless claims to survive.

“NO-INJURY” CONSUMER CLASS ACTION LAWSUITS

Illinois attracts consumer class action lawsuits targeting the food and beverage industry. Its courts are among the most popular in the United States for lawsuits alleging that something about a product’s labeling or packaging could mislead a consumer.

For example, a class of consumers recently targeted Barilla in Illinois federal court over its “no preservatives” label on its Tomato Basil Sauce, asserting that the presence of citric acid makes this marketing misleading. While the lead plaintiff purchased the sauce in New York, he filed his lawsuit in Illinois. The plaintiff is represented by C.K. Lee of Lee Litigation Group, who has filed numerous lawsuits targeting food companies across the country. Reason prevailed in that case, as the judge ruled that the plaintiff could not apply Illinois Consumer Fraud and Deceptive Business Practice Act claims to consumers nationwide.

Another significant type of food lawsuit filed in Illinois is one in which plaintiffs assert that a company falsely claims that the food is “natural” or contains no artificial ingredients. For instance, a plaintiff sued National Beverage Corporation in October 2018 over the “100% Natural” label on its LaCroix Sparkling Water. The company pushed back, arguing that its products were tested at an independent lab and were found to be “biobased” and “sourced entirely from plants.” The court, however, denied the company’s request for sanctions in July 2019, allowing the litigation to continue.

Slack fill lawsuits—those that allege that a product’s box, bag, or container has space that could fit more food— are also popular. This year, an Illinois federal court dismissed a lawsuit alleging that consumers are entitled to more Junior Mints. The court’s March 2019 ruling found that even if large boxes led consumers to buy the candy, the complaint did not claim that consumers overpaid.

Plaintiffs’ lawyers know that while some of their lawsuits will fail, in many cases, companies will settle even some of the most ridiculous claims to avoid the expense of litigation. Even an Illinois case claiming that consumers may think that Dunkin’ Donuts’ glazed blueberry donuts contain real blueberries led to a private settlement in October 2018, after a court denied a motion to dismiss the lawsuit.

ILLINOIS SUPREME COURT EXPANDS LIABILITY OF NON-MANUFACTURERS

Businesses that sell products in Illinois face heightened liability exposure in the state, following a state high court ruling that subjects sellers and distributors of products to product liability actions when a plaintiff is unable to collect a judgment against the responsible foreign manufacturer. Illinois, like many states, has an “innocent seller” law, which protects companies that merely sell or distribute a product, but play no part in designing, manufacturing, or labeling it, from claims alleging a product defect. To obtain this protection, the seller or distributor must identify the manufacturer so that the plaintiff can seek recovery for the injury from the responsible party.

The Illinois Supreme Court previously interpreted an exception in that law to allow suits against a non-manufacturer when the manufacturer is bankrupt or no longer exists. In Cassidy v. China Vitamins, however, the Court found “other circumstances that effectively bar recovery of the full measure of judgment damages awarded” from the manufacturer permit an action to proceed against any non-manufacturer in the chain of distribution of the product. In that case, an injured worker obtained a $9 million default judgment against a Chinese manufacturer in the Cook County Circuit Court, but was unable to collect the judgment. The court allowed the plaintiff to proceed with an action against the New Jersey company that imported the product.

This decision will have a large impact on non-manufacturers in the state – $2.9 trillion in products are imported from foreign manufacturers into the United States, and almost 80% come from Asian countries. This decision increases the risk of liability for companies who have an otherwise faultless role in the chain of commerce.

LEGISLATURE FOCUSES ON ‘PRO-PLAINTIFF’ AGENDA

The Illinois plaintiffs’ bar is one of the most powerful in the country. From 2001 to 2016, trial lawyers donated more than $35 million to campaigns of Illinois office seekers. The Illinois Trial Lawyers Association’s legislative political action committee contributed $6 million, while the top 25 largest Illinois plaintiffs’ firms, their lawyers, friends and family contributed the remaining $29 million. The trial bar looked to cash in on these donations after Governor J.B. Pritzker’s 2018 election. Following his victory, the floodgates opened and the legislature pursued an aggressive liability-expanding agenda in 2019.

The following bills were enacted:

SB 1596 – Eliminates the statute of repose for asbestos-related occupational diseases and excludes the cases from the Illinois Workers’ Compensation Act to allow them to sue employers.
HB 2233 – Places the use of special interrogatories at the discretion of trial judges, places inconsistent verdicts back into the hands of juries, and provides discretion to trial court judges to order new trials if there are inconsistencies between interrogatories and verdicts. The legislation seeks to “fix” a problem that did not exist.
HB 2472 – Expands liability under the Illinois Consumer Fraud and Deceptive Business Practices Act (CFA). The new law carves out from the statute’s regulatory compliance exemption claims alleging that the manufacture, distribution, or sale of product or service caused or contributed to cause bodily injury, death, or property damage. This change is an invitation to plaintiffs’ lawyers to use the state’s consumer protection law, which is intended to provide compensation for economic loss stemming from misleading advertising, to circumvent traditional requirements for product liability and other personal injury actions. The law guts the CFA’s existing safe harbor. Now, a defendant will no longer be able obtain dismissal of a CFA claim when a government agency specifically approved the practice or labeling at issue, if the plaintiff alleges the product contributed to personal injury.

The legislature considered additional bills that would expand liability. While they did not pass in 2019, they are expected to once again be introduced next year. This includes multiple bills that would expand liability under Illinois’ problematic BIPA law.