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Cook, Madison & St. Clair Counties, Illinois

This trio of Illinois counties continues to be a preferred jurisdiction for plaintiffs’ lawyers thanks to no-injury lawsuits, plaintiff-friendly rulings in asbestos litigation, and the promise of a liability-expanding legislative agenda each and every year. Illinois is ground zero for no-injury lawsuits, thanks in large part to its Biometric Information Privacy Act and the courts’ expansive interpretation of the law. While 2020 did not bring the normal volume of litigation due to COVID-19 shutdowns, there is no reason to think it will not resume to normal levels once the pandemic has ended.

The Illinois General Assembly continues to look for innovative new ways to expand liability for businesses, increasing the financial burdens of doing business in the state. At a time when business is reeling from the economic impact of COVID-19, the legislature should consider enacting reforms to ease the economic burden caused by abuses of the state’s civil justice system. A recent report by The Perryman Group estimates that excessive tort costs to the Illinois economy result in $5.7 billion in annual direct costs and 99,966 jobs when dynamic effects are considered. These excess costs result in a “tort tax” of $761.81 per person.

"NO-INJURY" LAWSUITS FLOOD ILLINOIS JUDICIAL SYSTEM

BIPA LITIGATION SPREADING

Illinois lawmakers enacted the Biometric Information Privacy Act (BIPA) in 2008, but it lied dormant until 2015 when plaintiffs’ lawyers discovered its business potential. BIPA provides a private right of action to a person whose fingerprint, voiceprint, or hand or facial scan, or similar information is collected, used, sold, disseminated or stored in a manner that does not meet the law’s requirements. The number of BIPA class actions surged from just 6 in 2015 to 161 in 2019.

BIPA requires companies to inform an individual in writing and receive a written release prior to obtaining 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 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 work- places 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 attorneys’ 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. As a result of this decision, BIPA lawsuits, which were already flooding Illinois courts, surged.

Facebook, in January 2020, agreed to pay out a $550 million settlement of a BIPA lawsuit brought back in 2015. The class action alleged that Facebook violated BIPA by collecting facial recognition data of its users without disclosure. In 2019, the Ninth Circuit allowed the action to proceed, concluding that “the development of face template[s] using facial recognition technology… invades an individual’s private affairs and concrete interests.”

Since the settlement, similar suits are popping up – a class action complaint filed in July directs a similar facial recognition suit toward Microsoft.

In another example from 2020, a franchise owner of several Illinois McDonald’s was hit with a class action alleging its locations required employees to provide fingerprint scans to clock in and out and keep track of hours in violation of BIPA. The complaint, filed in Cook County Circuit Court, alleges the McDonald’s franchise failed to inform its employees why and how it was storing their biometric data, and did not get the employees’ statutorily-required informed consent to collect the data.

In another 2020 case, an employee filed a class action lawsuit under BIPA against Chicago’s Trump Tower Hotel in Cook County Circuit Court. Included in the complaint are allegations that the hotel did not obtain written consent for biometric scanning from its staff and did not publish a policy about collection, retention, use and dissemination of information. The workers also claim the hotel disseminated biometric information to third parties for “timekeeping, data storage, and payroll purposes.”

BIPA CLAIMS NOT PREEMPTED BY ILLINOIS’ WORKERS’ COMPENSATION LAWS

An Illinois appellate court ruled that claims for actual injury under BIPA are not preempted by the Illinois Workers’ Compensation Act (IWCA). Employees are not required to file a grievance through the workers’ compensation process, and can pursue litigation against their employer. As one litigator correctly pointed out, “The statute is largely shaping up to be, for all intents and purposes, largely a strict liability statute.” And given the significance of the decision, the Illinois Supreme Court is likely to hear an appeal and deliver the final word. Illinois’ BIPA litigation has immense economic consequences for employers, and if liability continues to expand, it will ultimately drive even more businesses out of the state.

CASE TO WATCH

The Illinois Supreme Court also is considering another line of “no-injury” litigation that could impact future BIPA cases. In Soto v. Great America LLC, a consumer brought a class action suit against an amusement park alleging a violation of the federal Fair and Accurate Credit Transaction Act (because more than five digits of her credit card number appeared on her receipt). The trial court dismissed the case for lack of standing. The appellate court reversed, however, finding that plaintiffs could bring the case because the statute provides for a private right of action for statutory damages where an individual willfully fails to comply. Accordingly, the Sotos were not required to even claim that they experienced an actual injury because they had sufficiently alleged that the amusement park had willfully failed to comply with FACTA’s truncation requirement. Despite FACTA being a federal statute, the Illinois Supreme Court will decide whether a willful violation (which the appellate court viewed as simply failing to follow a requirement that a company knew or should have known of), without actual injury, is sufficient to bring a lawsuit.

“The statute is largely shaping up to be, for all intents and purposes, largely a strict liability statute.”
– An Illinois litigator

ILLINOIS COUNTIES ARE A HOTBED FOR ASBESTOS LITIGATION

Madison County remains the preferred jurisdiction in the United States for plaintiffs’ lawyers to bring asbestos claims with 1,150 filings in 2019, a five percent increase from 2018 (1,095 filings). This represents 28.3 percent of all filings nationwide. Through the first half of 2020, 32.2 percent of new asbestos cases were filed in Madison County.

St. Clair County comes in at number two with 359 filings, a 35 percent increase from 266 filings in 2018. Rounding out the top 10 is Cook County, which ranked as the eighth highest jurisdiction with 132 filings. Plaintiffs flock to these county courthouses due to their plaintiff-friendly reputation, low evidentiary standards, and judges’ willingness to allow meritless claims to survive.

PLAINTIFF-FRIENDLY LEGISLATIVE AGENDA

Prior to adjourning due to the COVID-19 pandemic, the Illinois legislature was poised to consider bills that would expand the Biometric Information Privacy Act and increase data privacy litigation. These issues are expected to be considered again once the legislature resumes normal activity.

COVID 19 INFORMATION

Governor J.B. Pritzker (D) issued a series of executive orders throughout 2020 to provide liability protections for health care professionals, facilities and volunteers as they fought the COVID-19 epidemic. The protections remain in effect for the duration of the Gubernatorial Disaster Proclamations.

OTHER NEWS

In other legislative news, the Chicago Tribune has reported that Illinois House Speaker Michael Madigan, a longtime plaintiffs’ bar ally, is linked to a federal investigation of political corruption. U.S. Attorney John Lausch has charged ComEd, a utility company, with bribery for attempting to influence an unnamed Illinois legislator, fitting Madigan’s description, through the provision of “financial benefits.” The bribery scheme allegedly began in 2011 and lasted through 2019. Prosecutors estimate at least $150 million in “anticipated” legislative benefits were conferred. As part of a deferred prosecution agreement, ComEd has agreed to pay a $200 million fine. The federal investigation continues and Illinois Republican legislators created a special House committee to investigate Madigan’s activities.

Madigan has raked in hundreds of thousands of dollars in campaign contributions over the years from the Illinois Trial Lawyers Association PAC, and has served as an effective roadblock to civil justice reforms. The Illinois plaintiffs’ bar is one of the most powerful in the country, donating millions to the campaigns of Illinois office seekers. For example, between 2001 and 2016, the Illinois Trial Lawyers Association’s legislative political action committee contributed $6 million to Illinois candidates, while the top 25 largest Illinois plaintiffs’ firms, their lawyers, friends and family contributed $29 million.

SOME GOOD NEWS FROM THE ILLINOIS SUPREME COURT

The Illinois Supreme Court rendered a blow against litigation tourism that leads to Judicial Hellholes in its June 2020 ruling in Rios v. Bayer Corp. & Hamby v. Bayer Corp. In each of these cases a Madison County resident joined with scores of out-of-state plaintiffs to sue Bayer in Madison County over the safety of Essure, a permanent birth control product. The Illinois Supreme Court dismissed the claims of the out-of-state plain- tiffs for lack of jurisdiction because Bayer is not located in Illinois and does limited business there, the product was not manufactured in Illinois, and the plaintiffs experienced their injuries outside of Illinois. The Court recognized that Illinois had no interest in resolving these claims, and the nonresidents had failed to explain why Illinois was a convenient location for their litigation “when they were not implanted with their devices here and have identified no other activity that would connect their specific claims to Illinois.”

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