Cook County’s courts have once again ranked high on the list of America’s worst “judicial hellholes,” thanks to a propensity for “nuclear verdicts” and a seemingly neverending stream of “no-injury” class action lawsuits targeting businesses of all types and sizes under Illinois’ stringent biometrics privacy law.
On Dec. 6, the American Tort Reform Association placed Cook County at the No. 5 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.
This year, ATRA particularly highlighted eight jurisdictions -state, county and city court systems – it believes should be considered the worst of the worst in the U.S. today for lawsuit abuse.
The state of Georgia claimed the No. 1 ranking in ATRA’s report. They were followed by the Pennsylvania Supreme Court and Philadelphia courts at No. 2; the state of California at No. 3; and the state of New York at No. 4.
Following Cook County at No. 5, ATRA selected South Carolina’s asbestos courts, the state of Louisiana and the city of St. Louis, Nos. 6-8.
According to the report, ATRA selected Cook County for the No. 5 slot for three primary reasons.
Topping the list, they said, was Cook County’s status as a top location for so-called “nuclear verdicts.”
In September, the U.S. Chamber of Commerce’s Institute for Legal Reform ranked Illinois sixth nationwide for “nuclear verdicts,” which it defined as jury verdicts in lawsuits worth $10 million or more.
The report tracked and analyzed 1,376 such verdicts nationwide from 2010-2019.
The ILR report found Illinois logged 75 such verdicts during that decade. And two-thirds of those came from trials in Cook County Circuit Court, according to the ILR, with another 25% coming from federal courts in Chicago.
Notably, in recent weeks, juries in Cook County court and Chicago federal court, have doled out so-called “mega nuclear verdicts” worth $363 million and $228 million, respectively.
In its latest Judicial Hellholes report, however, ATRA particularly singled out Cook County’s courts for their continued welcome of potentially ruinous class action lawsuits taking aim at businesses and employers under the Illinois Biometric Information Privacy Act.
While the law was enacted in 2008, the BIPA statute largely attracted little notice, until a group of trial lawyers began using the law as a basis for a stream of class action lawsuits in 2015.
Since then, however, a series of rulings from the Illinois Supreme Court and other courts have opened the spigot full, leading to a flood of class action litigation from a growing cadre of plaintiffs’ lawyers seeking relatively easy paydays.
The law allows plaintiffs to demand damages of $1,000 or $5,000 per violation, depending on if the plaintiffs can establish the company targeted by the lawsuit was merely negligent or intentionally violated the law.
But those damages can quickly and exponentially multiply.
The lawsuits typically center on “no-injury” technical violations of the BIPA law.
The lawsuits generally claim companies violate the law by, for example, scanning people’s faces in photos or by requiring employees to scan fingerprints when punching the clock, without first securing written consent from those people to conduct the scans and without first providing notices explaining why the company is scanning their biometrics and what the company intends to do with the scanned data.
Plaintiffs’ lawyers have argued the law should be interpreted to define individual violations as each time a company scans a biometric identifier, such as a fingerprint or facial geometry.
So, for instance, they have argued employers who require fingerprint scans to track work hours or to enter secure facilities in a workplace should be made to pay $1,000 or $5,000 each time an employee scanned their finger.
This could quickly cause damages to soar far into the millions or even billions of dollars, should such lawsuits and legal claims go to trial.
This effect was on display recently, as a Chicago federal jury ordered rail operator BNSF to pay $228 million to a group of 45,000 truck drivers who were required to scan hand prints to enter BNSF rail yards in Illinois.
The company has challenged that ruling. But plaintiffs’ lawyers have argued the award was too small. They estimated damages should have been actually closer to $800 million or more.
“The landmark verdict demonstrates that Illinois juries are willing and able to assess massive statutory penalties for BIPA violations, even when the plaintiffs did not allege any actual injury,” ATRA wrote in its report.
The ATRA report noted the Illinois Supreme Court has had opportunities to narrow the reach of the law, but has demurred, to this point.
ATRA noted the high court denied an effort by an employer to argue BIPA claims by workers against their employers should be interpreted as workplace injuries, subject to Illinois’ workers’ compensation law.
The court’s majority said the work of curtailing the law should fall instead to the Illinois General Assembly, not the courts.
ATRA cited a special concurrence in that decision from former Supreme Court Justice Michael Burke, who “pointed out the irony” inherent to BIPA class actions. In that concurrence, Michael Burke noted the plaintiff in the case could only sidestep the workers’ comp law by “denying the existence of an injury” – a move that would typically doom lawsuits altogether.
ATRA noted the state Supreme Court currently has two more cases pending before it, which could narrow the potential for catastrophic damages.
But if the Supreme Court again sides with trial lawyers, ATRA expressed doubt the Democratic supermajority in the state legislature would do anything to curtail the law’s impact on the state’s businesses.
“Unfortunately, the state’s General Assembly is one of the most plaintiff-friendly legislatures in the country and does very little to combat the pervasive liability-expanding agenda of the plaintiffs’ bar,” ATRA wrote.
In the past, Cook County has shared its ranking on the Hellholes list with downstate Madison and St. Clair counties. However, this year, the report said those counties in the St. Louis metropolitan area received only “dishonorable mentions,” as the litigation environment in those counties has “narrowed.” Now those counties only serve as the preferred destination for lawyers filing asbestos-related personal injury suits in Illinois, ATRA said.
ATRA noted Cook County’s courts also continue to serve as a safe harbor for asbestos litigation, ranking No. 7 in the nation for asbestos lawsuit filings in 2021, according to a report issued by tech consulting firm KCIC.