Powered in large part by recent headline-grabbing decisions from the Illinois Supreme Court allowing trial lawyers to leverage Illinois' biometrics privacy law to extract massive settlements from employers and other businesses, Chicago's courts have fallen just short of claiming the top spot on the annual list of America's worst "judicial hellholes."
On Dec. 5, the American Tort Reform Association ranked Cook County No. 2 on its 2023-2024 "Judicial Hellholes" list.
ATRA compiles and publishes the list each year to draw attention to some of the country's courts that are the most welcoming to lawsuits and most hostile to businesses and employers in the way judges apply and interpret the law and court rules.
Phil Melin
| Illinois Citizens Against Lawsuit Abuse
The report points to research indicating those aspects of these legal systems produce big real world costs for Americans.
The report cited research from The Perryman Group, which indicated "lawsuit abuse and excessive tort costs" in Illinois alone cost the state economy more than $21 billion annually.
In Chicago and Cook County, ATRA and Perryman said these lawsuit costs drain $2.24 billion from personal income yearly, resulting in an estimated loss of more than 187,000 jobs, costing each Chicago resident about $2,300 per year in a so-called invisible "tort tax."
For the second consecutive year, the state of Georgia again claimed the No. 1 ranking in ATRA's report. This time, the Peach State shared that designation with two courts in Pennsylvania, that state's Supreme Court and the Philadelphia Court of Common Pleas.
Cook County occupied the No. 2 spot, followed by the courts of the state of California; New York City; South Carolina's asbestos courts; Lansing, Michigan; the state of Louisiana; and the city of St. Louis.
According to the report, Pennsylvania's courts were selected for their spot at the top of the list in part thanks to a recent controversial decision from the Pennsylvania Supreme Court. Reform advocates say that decision will open the floodgates to so-called "litigation tourism" and "forum shopping," in which plaintiffs - even those from out of state - choose to skip out of their home jurisdictions, and instead file lawsuits in Philadelphia's famously plaintiff-friendly courts, home of some of the country's most punitive "nuclear verdicts" against businesses.
The ATRA report said courts in Chicago and Cook County share many of those same notorious attributes.
The report's authors noted that Cook County is among the worst in the country for producing so-called "nuclear verdicts." The report notes that since 2022, Illinois courts have produced 13 "nuclear verdicts," ranging from $10.5 million to $363 million. All but one of those verdicts were produced by lawsuits filed in Cook County Circuit Court.
However, such verdicts are not the biggest problem facing Illinois courts, the report said.
'No injury?' No obstacle
Rather, ATRA said Cook County moved up the rankings this year from No. 5 to No. 2 on the threat posed to employers, businesses and Illinois residents from the state's encouragement of "no injury" lawsuits.
The report said this trend is seen most clearly through class action lawsuits flooding courts in Cook County and elsewhere in Illinois under the state's Biometric Information Privacy Act.
Enacted in 2008, the Illinois BIPA law states it is designed to safeguard the unique biometric identifying information of consumers and employees of businesses. These biometric identifiers can include fingerprints, retinas or facial geometry, among others.
The BIPA statute largely attracted little notice, however, until 2015, when a group of trial lawyers began using the law as a basis for a stream of class action lawsuits.
In the eight years since, a growing cadre of class action law firms have used the law to file thousands class action lawsuits and amass billions of dollars, collectively, in attorney fees from businesses who choose to settle rather than take the chance of being slapped with what Illinois Supreme Court justices and others have described as potentially "annihilative" and "catastrophic" payouts at the hands of juries.
The BIPA law allows plaintiffs to demand steep financial penalties of $1,000 or $5,000 per violation, depending on whether plaintiffs can prove the business was willful in not complying with the law.
The lawsuits to this point have largely centered on claims that businesses failed to provide certain notices to employees or customers when scanning their fingerprints or other biometric identifiers. The vast majority of those lawsuits have taken aim at employers who require workers to scan fingerprints to punch in and out of work shifts on so-called biometric timeclocks, or that use face- or voice-recognition tech to monitor employees on the job.
The vast majority of the class action lawsuits under BIPA also don't claim those plaintiffs were ever actually harmed by the biometric scans. Rather, they claim merely the technical violation of the law is enough to allow plaintiffs to demand potentially hundreds of millions or even billions of dollars in damages, depending on the size of a workforce or number of users.
The ATRA report pins much of the blame for the rise in BIPA litigation on the Democrat-dominated Illinois Supreme Court, which has issued a series of decisions since 2019 which has largely served to supercharge the litigation under BIPA.
After ruling in 2019 that plaintiffs don't need to actually prove they were harmed to bring suit under the BIPA law, the Illinois Supreme Court earlier this year added two more decisions, which, when taken together, allow plaintiffs to demand up to $5,000 for each time a worker scanned a fingerprint over a timespan beginning five years before a suit was filed.
In the two months following the final of those decisions this year, BIPA-related filings surged by 65%.
The Illinois Supreme Court granted a rare win to employers facing BIPA lawsuits in November, agreeing that the BIPA law doesn't allow plaintiffs to slam hospitals and health care tech vendors with massive lawsuits over claims nurses were improperly required to scan their fingerprints to prove their identity when accessing medication dispensing systems.
However, "this onslaught of litigation does not appear to have an end in sight, as the Illinois legislature has not yet taken any steps to amend the statute and prevent this 'annihilative liability' from being imposed," ATRA wrote. "The Illinois Supreme Court has made it clear they do not see this issue as some- thing they can remedy, saying that 'we continue to believe that policy-based concerns about potentially excessive damage awards under the Act are best addressed by the legislature.' "
“BIPA was well-intended, but now it’s just another tool in the trial lawyer playbook, exploited through abusive litigation,” said ATRA President Tiger Joyce. “While BIPA litigation is lucrative for a few select law firms, it undermines the well-being of middle-class families when Illinois businesses suffer under this law while lawyers profit at their expense.”
No relief in sight?
However, the "no-injury" standard is likely not going to be limited to BIPA cases.
The report notes that plaintiffs' lawyers are now also filling Cook County court dockets with dozens of class actions under Illinois' Genetic Information Privacy Act, mostly targeting employers, insurers and others with lawsuits asserting they violated the law by asking those applying for jobs and insurance coverage about their personal and family medical histories.
"Given their immense success under BIPA, plaintiffs’ lawyers will look to exploit GIPA’s broad definition of 'genetic information' and large damages provision," ATRA wrote.
The report further noted that federal courts in Chicago have become one of the country's hotbeds for lawsuits over food and beverage product labeling. Overall, Illinois ranked third for such lawsuits in 2022, behind New York and California.
"Illinois is a magnet for these types of lawsuits because it has one of the 'broadest, most flexible' consumer protection laws," ATRA wrote.
Cook County is only likely to further cement its ranking as one of the most unfriendly judicial jurisdictions in the U.S. for businesses, thanks to the actions of Gov. JB Pritzker and his Democratic allies who dominate the Illinois General Assembly and the state's courts, ATRA says.
They note the state in 2021 added a controversial and constitutionally-questionable provision, allowing plaintiffs to massively jack up court-ordered payouts through the use of so-called prejudgment interest of 6% per year, from the date the lawsuit was filed.
"This shift makes Illinois an extreme outlier when compared to the rest of the states as most cap or otherwise limit both punitive and noneconomic damages in some way, which Illinois does not," the ATRA report states.
The ATRA report noted the law was "pushed through at the last minute" in the General Assembly, over strong, unified opposition from the state's business communities, while offering "no time for businesses to provide input and suggested improvements."
ATRA noted trial lawyers are among the biggest, most consistent donors to the Democratic lawmakers who run Springfield, allowing them an outsized role in guiding the passage of such new laws to enhance their ability to sue businesses in the state.
Taken together, all of these recent changes to Illinois law and many of the recent decisions from the Illinois Supreme Court and other state courts means businesses will come under tremendous pressure to quickly settle a wide range of lawsuits, rather than look to the courts to protect them against potentially meritless rapacious claims.
"Cook County's designation as a 'Judicial Hellhole' should serve as a wake-up call," said Phil Melin, executive director of the reform group, Illinois Citizens Against Lawsuit Abuse.
"It's time for lawmakers, judges, and citizens to collaborate for meaningful reform. Reform is crucial to protect local businesses and consumers struggling under inflation from predatory practices, ensuring they can continue benefiting our communities."