Cook County’s courts have again secured a dubious distinction, ranking near the top of America’s worst “judicial hellholes.”
On Dec. 8, the American Tort Reform Association placed Cook County, together with the courts in downstate Madison and St. Clair counties, at the No. 8 spot on its annual “Judicial Hellholes” list.
ATRA compiles and publishes the list each year to draw attention to some of the country’s most litigious and plaintiff-friendly court systems, where it believes business defendants are treated the most unfairly in the way judges apply and interpret the law and court rules.
Illinois trial lawyers have long been big financial backers of Illinois House Speaker Michael Madigan, and continued to give even after Madigan was implicated by federal prosecutors as a central figure in a bribery scheme involving ComEd.
“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,” ATRA wrote in its new report.
“… 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.”
Cook County’s high ranking on the list was particularly driven by its outsized role as “ground zero” for class action lawsuits brought under Illinois’ expansive biometrics’ privacy law.
Since 2015, hundreds of employers, tech companies and others have been targeted under the Illinois Biometric Information Privacy Act (BIPA) by a particular, but growing, group of trial lawyers.
While the lawsuits initially hit social media and tech titans, like Facebook and Google, the vast majority of BIPA-related class actions have since taken aim at employers of all sizes and types, who have required workers to verify their identities by scanning their fingerprints when punching in and out of work shifts.
The lawsuits typically have accused those employers of violating the BIPA law by not securing written authorization from workers, or providing them with certain required notices they say the BIPA law requires, before requiring the workers to scan their fingerprints.
While the law has been on the books since 2008, the class actions did not begin accumulating until seven years later, when Chicago class action firms began crafting lawsuits around the law’s technical notice and consent provisions.
The lawsuits, however, particularly piled up in 2019 after the Illinois Supreme Court ruled plaintiffs don’t need to show they suffered any actual harm – such as identity theft, or even an increased risk of identity theft from a data breach – to bring potentially massive lawsuits under the BIPA law.
The law allows plaintiffs to demand damages of up to $5,000 per violation, with violations tallied as each time a defendant allegedly scanned a biometric identifier. Against employers, this could be counted as each time an employee scanned a fingerprint.
With such potential damages on the line, settlements of a number of those legal actions have begun to land in court, with amounts ranging from hundreds of thousands of dollars to hundreds of millions.
Facebook, for instance, agreed to pay $650 million to settle claims against it for allegedly violating BIPA by creating templates of people’s faces from uploaded images, using the social media giant’s photo tagging technology.
Some employers, including restaurant chains and food suppliers, have settled for $1 million to $3 million.
A company that makes and sells fingerprint-scanning timeclocks has agreed to settle for $14 million.
And the class actions continue to mount by the week in Cook County court and elsewhere in Illinois.
“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,” ATRA wrote in their report.
ASBESTOS HOTBEDS
While BIPA litigation particularly drew the eye of lawsuit reformers this year, ATRA noted Cook County, along with Madison and St. Clair counties, continue to be “hotbeds” for asbestos-related personal injury lawsuits.
The report noted that the two downstate counties, just across the Mississippi River from St. Louis, remain the “preferred jurisdiction in the United States for plaintiffs’ lawyers to bring asbestos claims.”
In 2019, the report noted, asbestos filings increased in Madison County by 5%, with 1,150 new cases filed. Madison County alone accounted for more than 28% of all asbestos filings in the U.S. last year.
In St. Clair County, asbestos filings increased by 35%, to 395 filings.
Cook County logged 132 new asbestos lawsuits in 2019.
“Plaintiffs flock to these county courthouses due to their plaintiff-friendly reputation, low evidentiary standards, and judges’ willingness to allow meritless claims to survive,” ATRA wrote.
MADIGAN BACKERS
On the political front, ATRA said it expected little relief from Illinois lawmakers, who, they said, appear poised to further expand the scope and reach of the BIPA law and “increase data privacy litigation.”
The reform association noted trial lawyers remain some of the biggest campaign contributors to the Democrats who control Illinois’ state government.
“The Illinois plaintiffs’ bar is one of the most powerful in the country, donating millions to the campaigns of Illinois office seekers,” ATRA wrote
Illinois House Speaker and state Democratic Party Chairman Michael Madigan, for instance, “raked in hundreds of thousands of dollars in campaign contributions from the lawyers who fill Illinois courts with lawsuits every year.
In September 2020 alone, for instance, trial lawyers collectively donated $161,000 to Madigan’s personal political campaign committee, even after federal prosecutors implicated Madigan as the central figure in an alleged bribery scheme involving electrical utility ComEd. Leading figures in Madigan’s political organization and at ComEd have been indicted in connection with that scheme, though Madigan has not been charged.
Madigan has “served as an effective roadblock to civil justice reforms,” opposed by Illinois trial lawyers, ATRA said.
OTHER 'HELLHOLES'
Nationwide, the other top “hellholes” rounding out ATRA’s list include:
1. The Philadelphia County Court of Common Pleas and the Pennsylvania Supreme Court. This marked the second consecutive year Pennsylvania’s courts have ranked the worst on ATRA’s list. The Pennsylvania courts were dinged for high-dollar mass tort verdicts, expanding medical liability litigation and a lower reliability standard for expert witness evidence, among other issues.
The report cites “a pervasive, liability-expanding approach that has permeated through the state’s civil justice system”, featuring an open-door policy for out-of-state plaintiffs, large plaintiff jury verdicts, expansion of liability for medical and asbestos defendants and the retaining of the Frye standard in judging scientific expert witnesses, as just four reasons the Philadelphia County Court of Common Pleas and the Supreme Court of Pennsylvania are on top of the list.
2. New York City. ATRA cited the rescinding of COVID-19 protections against health care entities, alleged improper interpretation of the Americans with Disabilities Act of 1990 by plaintiffs’ lawyers, excessive and high-dollar injury verdicts damaging the state economy and the “legitimizing” of third-party litigation funding in its remarks about New York City.
“New York State buckles under the weight of increasing taxes, the highest tort costs per household, the exorbitant cost of living, the highest taxpayer exodus, and the devastating financial impact of COVID-19,” the report says. Moving up one place on the list, New York City was ranked No. 3 in last year’s report.
3. California. ATRA highlighted California’s implementation of Assembly Bill 5, which sought to decide whether a worker is classified as an employee or contractor, trial lawyers looking to exploit the state “Lemon Law” for maximization of attorney’s fee payouts and further exploitation of Proposition 65 by the plaintiffs’ bar, in its reasoning for including California on the list.
“In a year when many states saw a significant decrease in litigation, California plaintiffs’ lawyers continued to target businesses, while the legislature and judiciary pursued innovative new ways to expand liability. Businesses, small and large, are struggling to stay afloat, yet California’s leadership failed to ease unjust liability burdens and further stacked the deck against their survival,” per the report. Switching places with New York City this year, California was ranked No. 2 in last year’s report.
4. South Carolina Asbestos Litigation. ATRA almost exclusively looks to Judge Jean Toal’s handling of the state’s asbestos litigation as its reason for South Carolina being ranked No. 4 in its debut appearance this year, saying she “has shown a concerning pattern of allowing abuse of the discovery procedure, unwarranted penalties during trials and low standards for expert evidence.”
“South Carolina Asbestos Litigation was included on the Watch List in 2019, thanks to its reputation for pro-plaintiff rulings and unfair treatment of defendants in the court overseeing these cases. A concerning pattern of discovery abuse, unwarranted sanctions, low evidentiary requirements and multi-million-dollar verdicts solidified its position as a Judicial Hellhole.” As mentioned, South Carolina went officially unranked in last year’s report, but was included in its “Watch List.”
5. Louisiana. ATRA references lawsuit abuse and scams leading to increased auto insurance rates, abusive coastal litigation continuing to hamper the state’s economy, costly and widespread lawsuit advertising and scandals of judicial misconduct as reasons for Louisiana being ranked No. 5 in 2020.
However, ATRA also praised the enacting of the Civil Justice Reform Act of 2020 to address the state’s auto insurance crisis and COVID-19 liability protections for individuals, businesses, schools and manufacturers during the pandemic, calling them “the most significant legal reforms in Louisiana since the 1990’s.”
6. Georgia. ATRA states an increase of high-dollar jury verdicts and a continued expansion of both premises liability third-party litigation financing in securing Georgia’s second straight appearance on the list this year.
“The ‘Peach State’ once again finds itself on the Judicial Hellholes list thanks to a continued rise in nuclear verdicts, the increasing role of third-party litigation financing, and ever-expanding premise liability. Trial lawyers have spent millions of dollars on advertisements, publicizing their jackpot verdicts and looking for their next big pay day. And while the Georgia legislature seemed poised to address lawsuit abuse plaguing the state’s judicial system, its efforts were derailed by the COVID-19 pandemic,” the report states. Holding steady, Georgia was also ranked No. 6 in last year’s report.
7. City of St. Louis. ATRA highlighted an affirmation of a gigantic talc litigation verdict by the Supreme Court of Missouri and alleged “junk science” permitted in courtrooms as reasons for the City of St. Louis returning to the list yet again.
In July 2018, a St. Louis jury awarded $550 million in actual damages and $4.14 billion in punitive damages to a group of 22 plaintiffs, who claimed their ovarian cancer was caused by exposure to talc found in Johnson & Johnson’s baby powder.
In June, an appellate court upheld the verdict, but reduced the damages award from $4.69 billion to $2.12 billion – $500 million in actual damages and $1.62 billion in punitive damages. ATRA referred to the Supreme Court of Missouri’s order from last month, declaring its refusal to review the verdict as “very disappointing.”
“Personal injury lawyers flock to St. Louis to file their lawsuits to take advantage of the plaintiff-friendly judges. These out-of-state plaintiffs clog the city’s courts, drain court resources, and drive businesses out of the state leading to job loss.” Dropping down two slots on the list, St. Louis was ranked No. 5 in last year’s report.
9. Minnesota – ATRA referenced the ongoing impact of the Supreme Court of Minnesota’s decision in Warren v. Dinter, where the Court found that “a doctor can face a medical liability suit even when no traditional physician-patient relationship exists…even in the absence of a physician-patient relationship, if it is reasonably foreseeable that the third party will rely on the physician’s acts and be harmed by a breach of the standard of care”, in its reasoning for placement on the list this year.
ATRA further pointed to a sizable increase in third-party litigation financing and Minnesota Attorney General Keith Ellison’s taking aim at several oil companies in a lawsuit claiming they misled Minnesotans about climate change, taking what ATRA feels is an “activist” stance on the issue.
“The “Gopher State” once again finds itself on the Judicial Hellholes list thanks to liability expanding decisions by the Supreme Court of Minnesota, the courts’ loose application of jurisdiction laws, and Minnesota’s activist attorney general.” The Minnesota Supreme Court and Twin Cities were also ranked No. 9 in last year’s report.
Nicholas Malfitano, courts reporter for The Pennsylvania Record, contributed to this report.