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Cook County, Illinois

Cook County is home to a disproportionate amount of the state’s litigation and nuclear verdicts®. No-injury litigation, including claims filed under the state’s Biometric Information Privacy Act and consumer protection laws, also contributes to Cook County’s sustained appearance on the Judicial Hellholes® report. Additionally, the county is a hotbed for asbestos litigation and Illinois plaintiffs’ lawyers contribute millions of dollars to campaigns to maintain the status quo.

According to the latest statistical study prepared by the Administrative Office of the Illinois Courts, plaintiffs’ attorneys filed 54,544 new civil cases each seeking over $50,000 in the Cook County Circuit Court in 2022—an astounding 91% of 59,925 filings of this kind statewide. Yet, Cook County’s 2022 population (5,109,292) is only 40.6% of the state’s total (12,582,032).Based on these statistics, plaintiffs’ lawyers filed one lawsuit seeking over $50,000 for every 94 Cook County residents in 2022.

Meanwhile, the circuit court for Illinois’s second most populous county, DuPage County (920,901), received just 59 new civil filings seeking over $50,000 in 2022 — one lawsuit filed per 15,608 residents. Lake County, the third largest county by population (709,150), had 303 new civil filings seeking over $50,000 in 2022 — one lawsuit filed per 2,340 residents.

Plaintiffs’ Lawyers Campaign Contributions

Plaintiffs’ lawyers are pouring millions of dollars into state political campaigns to preserve Illinois’ favorable civil justice environment. From September 2023 through September 2024, the Illinois Trial Lawyers Association PAC raised over $616,000. The PAC has raised over $11.8 million since 1994.

No-injury Lawsuits

BIPA

Abuse under the state’s Biometric Information Privacy Act hit a fever pitch in 2023 following landmark liability-expanding rulings by the Illinois Supreme Court. 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, 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.

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.

As detailed in the 2023 Judicial Hellholes® report, the Illinois Supreme Court issued two rulings that led to a dramatic increase in BIPA filings. First, the Court ruled that BIPA lawsuits are subject to the state’s “catch-all” statute of limitations, which provides five years to file claims with no defined period, as opposed to the state’s one-year default statute of limitations for privacy actions. The high court agreed with the Cook County Circuit Court, which had held that the five-year period applied. This facilitated substantially larger class actions.

Just a few weeks later, the Illinois Supreme Court issued another ruling that expanded liability for businesses under BIPA. In Cothron v. White Castle, the Court ruled that a BIPA claim accrues each time a business scans a person’s biometric information and each time it is transmitted to a third party, not only upon the first scan and first transmission.

In the two months following the White Castle decision, BIPA lawsuit filings jumped 65%. The lawsuits are brought primarily by small- and medium-sized law firms, with a sizable portion brought by Chicago- based firm Justicia Laboral LLC.

Companies targeted by BIPA litigation range from large national companies like Flowers.com and Krispy Kreme to local Chicago small businesses. This litigation has proven lucrative for these firms. In one case, plaintiffs’ lawyers received a nearly $100 million payday while their clients each received just over $400.

The Legislature Responds

During the 2024 legislative session, the legislature enacted a bill in direct response to the White Castle ruling. S.B. 2979, signed by Governor J.B. Pritzker in August, limits the number of violations occur- ring to a single instance, regardless of how many times a business scans or transmits a person’s biometric information.

S.B. 2979 marks a good first step towards addressing the series of abuses occurring under BIPA. However, concerns remain as “[e]ven at one statutory recovery per plaintiff, the liability implications for the statute are huge and outsized to any actual harm or injury in almost all conceivable situations,” said Matt Provance of Mayer Brown LLP. Just look at the $228 million judgment against BNSF in 2022 (which later settled for a mere $75 million). While it amounted to only one recovery per worker, more than 44,000 drivers included in the class were to receive $5.000 in damages.

Some recent BIPA litigation activity in Cook County include:

  • March 2024: A class action against Target accusing their surveillance systems of violating BIPA by collecting biometric data such as face recognition without the consent of the
  • July 2024: $2.4 million settlement with Crate & Barrel and its employees. The case involved an alleged BIPA violation stemming from the company’s collection of fingerprint/hand/palm data from employees as they clocked in and out of work between July 2013 and March 2024 without written consent. As a result of the settlement, each of the 1,796 class members will receive a payment of about $860. Meanwhile, the attorneys raked in about $847,000 — about 35% of the total award.

Healthcare BIPA Exception

In late 2023, the Illinois Supreme Court ruled that healthcare providers are exempt from BIPA liability based on a plain language reading of the Act. Section 10 of the Act provides that “biometric identifiers do not include information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996.”

Heathcare providers argued that the “or” before information establishes an entire category of information that is not limited to patients. Under this category, they argued that collection, use, and storage of their workers’ information is related to the treatment of their patients. The Illinois Supreme Court agreed and overturned a lower court decision that found otherwise.

An intermediate appellate court almost immediately restricted the application of this sound ruling. In August 2024, the First District Appellate Court upheld a Cook County Circuit Court decision and ruled that the patient-in-healthcare-setting exception to BIPA does not apply to an “online try-on” tool for nonprescription glasses. This ruling came about in a case in which a business sells nonprescription glasses online, with a feature allowing potential customers to use their facial geometry to try glasses on virtually before they make a purchase. The lawsuit alleges that collection of that facial geometry without “written, informed consent” violated BIPA.

The appellate court rejected the defendant’s argument that the healthcare-setting exception to BIPA applied. “We cannot agree that a person providing their biometric identifiers to obtain any of those products becomes a ‘patient in a healthcare setting’ under the Act and therefore falls outside of the Act’s protections,” the appellate court said.

GIPA

As we wait to see the impact of the BIPA legislative reform, the next wave of class action abuse has already arrived. The Illinois’ Genetic Information Privacy Act (GIPA), enacted in 1998, addresses the disclosure and use of an individual’s genetic information. It restricts employers from requiring genetic testing as a condition of employment and states that the results of genetic testing cannot be used to affect the terms of employment. Given their immense success under BIPA, plaintiffs’ lawyers will attempt to exploit GIPA’s broad definition of “genetic information” and the availability of substantial statutory damages.

Seyfarth Shaw LLP reports that over 60 GIPA suits were filed in 2023, and before then only 2 cases were filed under GIPA in the previous 25 years. The statute provides damages between $2,500 and $15,000 for each violation, depending on if the violation is deemed negligent or willful, respectively.

“[E]ven at one statutory recovery per plaintiff, the liability implications for the statute are huge and outsized to any actual harm or injury in almost all conceivable situations."
– Matt Provance, Mayer Brown LLP

Food and Beverage Litigation

Illinois once again ranked in the Top-4 states for the most food and beverage class action filings in 2023. Only fellow Judicial Hellholes® California, New York and Missouri are home to more. Illinois is a magnet for these types of lawsuits because it has one of the “broadest, most flexible” consumer protection laws which makes it ripe for abuse. The vast majority of these cases are filed in federal court in the Northern District of Illinois, which includes Cook County.

Spencer Sheehan, a prolific filer of no-injury consumer class actions in Illinois and elsewhere, slowed down his activity after being held in civil contempt in November of 2023 by a New York federal judge and will likely be even more cautious after a federal judge in Florida imposed $144,047 in sanctions on him in September 2024 for filing frivolous claims. According to one attorney’s count, “Between January 1, 2020 and April 7, 2023, Mr. Sheehan filed 553 complaints. Of those, 120 (21.6%) were dismissed outright…”

More Cases in Judicial Hellholes®?

The Illinois plaintiffs’ bar and Illinois Attorney General Kwame Raoul are leading an effort to abolish the doctrine of intrastate forum non conveniens in Illinois. This doctrine permits a court to transfer a case that is filed in an Illinois county with little or no connection to the allegations to a more appropriate county.

This most often occurs when plaintiffs’ lawyers file lawsuits in Cook County but their client lives, and the accident or injury occurred, elsewhere. The doctrine is an important check on blatant forum shopping by plaintiffs’ attorneys. It also protects the public’s interest in deciding local cases locally, and prevents burdening local jurors and courts with cases lacking a tie to their community.

In a case involving the legislature’s ability to set a specific venue for deciding lawsuits challenging state laws and regulations, the Attorney General filed a brief with the Illinois Supreme Court suggesting that it consider abolishing intrastate forum non conveniens. The Illinois Trial Lawyers Association then chimed in with an amicus brief urging such action, suggesting that the ability to conduct remote trials renders the doctrine unnecessary, while ignoring the vital public interests that the doctrine continues to serve.

Should the Court accept the plaintiffs’ bar’s invitation to abolish the doctrine, plaintiffs’ lawyers can be expected to file many more cases in Cook County and other plaintiff-friendly Illinois counties.

 

Nuclear Verdicts®

According to a recent report by the U.S. Chamber of Commerce, Illinois ranked 5th nationwide with 64 nuclear verdicts® in personal injury and wrongful death cases between 2013 and 2022. Over $2 billion was awarded during this time. Thirty-nine percent of the state’s nuclear verdicts® resulted from medical liability trials — which is nearly double the national average. The paper notes that “all but a handful of Illinois’ nuclear verdicts in state courts came from the Cook County Circuit Court.”

According to another study, Cook County hosted 79% of the state’s verdicts over $10 million against corporations between 2009 and 2022.

Asbestos Litigation

Plaintiffs’ lawyers filed 95 asbestos cases in Cook County in the one-year period ending July 31, 2024, compared to 71 at the same time last year. This marks a 33.8% increase in Cook County during a period in which asbestos lawsuits nationwide were up 8%. Only St. Clair County, Illinois experienced a larger increase. In 2023, Cook County was in the top-10 (#7) in asbestos lawsuit filings with 156, which was a 41.8% increase from the 110 lawsuits filed in 2022.

A $45 million talc verdict against Johnson & Johnson in Cook County in April 2024 showcased an imbalance in the latitude afforded to plaintiffs’ experts compared to those for the defense. The court allowed Dr. Steven Haber, serving as the plaintiff’s expert, to lecture the jury for four days on topics far outside his expertise as a pulmonologist, including geology and talc mining techniques. Dr. Haber admitted to taking “geology courses” just to testify, yet the court permitted him to opine on a wide range of technical subjects. The court wasn’t only lax in its gatekeeping functions – it failed in them altogether.

Meanwhile, Dr. Ed Kuffner, the company’s chief medical officer for consumer health products, was harshly restricted in his testimony despite personal knowledge of key issues. The court prohibited him from discussing the history of the company’s talc business, stating that he had “no fricking knowledge” of it. Dr. Kuffner also was prohibited from explaining how J&J addressed talc safety concerns, including his personal investigations and the established safety of J&J’s talc, the FDA’s 1976 finding that Johnson’s baby powder did not contain asbestos, the agency’s denial of a citizen’s petition seeking a warning label on Johnson’s Baby Powder, and evidence of talc safety from a 1994 symposium co-sponsored by the FDA.

Even more concerning, the court shut down testimony from Dr. Rachel Damico, a renowned Johns Hopkins pulmonologist and an expert in genetic causes of cancer. Dr. Damico was precluded from testifying about hereditary mutations that could have caused the plaintiff’s cancer, effectively dismantling the defense’s ability to offer alternative causation theories.

In July, the Cook County Circuit Court awarded $24 million to family of a janitor who contracted mesothelioma and alleged it was due to exposure while working at an Avon product facility. The verdict included $16 million for shortened life expectancy. Avon argued that the court should have entered a direct verdict in its favor due to the lack of evidence presented that Ramirez even worked at the Avon-owned facility, and because Ramirez could not name a supervisor that he claimed he worked with daily. The company also argued that evidence showed Avon had taken proactive steps to eliminate talc at least a decade before the plaintiff began working at the facility.

Asbestos-Related RICO Case

Simmons Hanly Conroy LLP, a frequent filer of asbestos lawsuits, has been accused of fraud and racketeering in a case filed in federal court for the Northern District of Illinois.

A complaint filed by J-M Manufacturing alleges that Simmons Hanly has engaged in practices involving “involving perjured testimony, suppressed evidence and baseless claims” to extract settlements from companies they are filing cases against. The complaint also alleges that the law firm uses a strategy when filing cases that involves looking into a client’s work history and the companies of products used by the client, then compiling a list of 70 defendants “regardless of whether there is any evidence of exposure to the defendant’s asbestos-containing product.”

In addition, the complaint indicates that the depositions used by Simmons Hanly allegedly involve statements from 30+ years earlier that are difficult to disprove.

Simmons Hanly, headquartered in Illinois with offices in New York, California, Missouri, and Massachusetts, has represented over 6,000 clients in asbestos cases, recovering over $9.3 billion.

Other Litigation Issues

Climate Change

In February 2024, the City of Chicago sued oil and gas companies, claiming that the industry falsely advertised their products as safe and promoted their use while knowing of potentially negative environmental effects. In so doing, the City joined other state and local governments attempting to regulate the energy industry through litigation. Piecemeal litigation in state courts is an inappropriate and ineffective way to tackle climate change, a matter of national and global significance deserving of a coordinated international response. In May, Chicago requested that the federal court in Northern Illinois transfer the litigation back to the Cook County Circuit Court, where it was originally filed. As of publication, the motion is pending.

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