A Chicago federal judge has pulled the plug on a lawsuit under Illinois' stringent biometric privacy law, ruling changes enacted by Illinois lawmakers earlier this year to limit potentially catastrophic payment demands should apply to lawsuits filed before the changes were made.
The ruling - which is seen as clear win for businesses operating in Illinois - is the first from a federal judge asked to consider the question amid a closely watched debate that could decide the fate of a host of lawsuits, with potentially millions or even billions of dollars collectively at stake.
On Nov. 13, U.S. District Judge Elaine E. Bucklo ruled in favor of trucking company Central Transport LLC, a trucking company based in Warren, Michigan.
The ruling has, for now, dispensed with a lawsuit brought by John Gregg, who worked for Central Transport at its facility in suburban Hillside for one month in October 2023.
Gregg filed suit in March 2024, represented by attorneys Adam J. Feuer, Majdi Hijazin, Samuel L. Eirinberg and Nick Wooten, of DJC Law PLLC, of Chicago and Austin, Texas.
Like thousands of other such lawsuits, Gregg accused Central Transport of violating the Illinois Biometric Information Privacy Act (BIPA).
Enacted in 2008, the Illinois BIPA law was ostensibly designed to safeguard the so-called unique identifying biometric information of employees and customers, including their fingerprints, facial geometry and other unique physical characteristics. Lawmakers at the time said the measure was inspired by the collapse of the company known as Pay By Touch, which had been among those pioneering the ability of consumers to pay for goods and services using fingerprint scanners.
Since 2015, however, the BIPA law has been used by a growing cadre of trial lawyers to target businesses of all types and sizes with an onslaught of thousands of class action lawsuits filed in Cook County and other courts in Illinois, and even in other states.
Some of the lawsuits famously targeted tech giants, resulting in headline-grabbing settlements worth hundreds of millions of dollars.
The overwhelming bulk of BIPA litigation, though, has landed on employers in Illinois, who have been routinely accused of wrongly scanning workers' fingerprints, faces, voices and other biometric characteristics, without first obtaining written consent or providing notices about how that information might be stored, used, shared and destroyed, among other technical provisions in the law.
In his lawsuit, Gregg claimed the company improperly required him to scan his fingerprints to prove his identity and track his work hours when punching the clock at the beginning and end of each work shift, without first complying with BIPA's stringent notice and consent provisions.
And like every other lawsuit brought under BIPA, Gregg sought potentially costly damages, demanding a payout of $1,000-$5,000 per violation, which he intended to multiply into a much larger payday, under an interpretation of the law granted by the Illinois Supreme Court.
In 2023, the state high court interpreted the law to define "individual violations" as each time a company scans someone's biometric data. The court also declared a five year statute of limitations.
The practical effect of that ruling was to ratchet up the financial risk to defendants.
To this point, the vast majority of the thousands of such BIPA lawsuits have been filed as class actions, as plaintiffs and their lawyers seek to multiply damages across entire workforces to generate massive paydays.
Judges and others have described such potential damage awards faced by defendants as "annihilative."
Noting the economically destructive nature of such lawsuits, justices on the Illinois Supreme Court joined with business advocates to call on Illinois lawmakers to bring balance to the law and rein in the ability of trial lawyers and their plaintiffs to bring potentially ruinous demands against businesses, when they cannot prove those businesses actually harmed anyone.
Following the most recent Illinois Supreme Court rulings, which made clear that businesses could face financial ruin under BIPA, Illinois state lawmakers this summer at last moved to rein in the law and at least blunt its worst possible outcomes.
A reform measure passed earlier this year formally declared that "individual violations" can only be counted once per person, not per biometric scan.
Thus, BIPA plaintiffs could only demand $1,000-$5,000 each, not multiplied against potentially hundreds or even thousands of potential biometric scans per plaintiff over five years.
That change will drastically reduce the financial risk faced by businesses under BIPA lawsuits going forward.
However, in the meantime, the courts must still address a mountain of hundreds of BIPA lawsuits still pending in court, which were filed before the BIPA law was revised.
In deciding the fates of those cases, courts in Chicago and elsewhere have been tasked with answering the question of whether the changes to the law should be read to apply not only to BIPA cases brought moving forward, but also to those already filed.
Those cases include a growing number of lawsuits brought by individual plaintiffs, rather than as class actions, as they seek to directly cash in on BIPA's potentially lucrative statutory damages entirely for themselves, rather than settling for a smaller cut of settlement funds paid out to dozens or hundreds of their coworkers.
Last month, in one of those individual BIPA cases, a Cook County Circuit Court judge agreed the reforms should apply retroactively.
That case, filed in April, was also brought by attorney Feuer and his colleagues, this time on behalf two plaintiffs, identified as Anthony Benson and Ulysses Ballard, against their employer, Freedman Seating Company, of Chicago.
In that ruling, Cook County Judge Catherine Schneider found that, because the reforms apply retroactively, the amount of damages in question in the case fall below $30,000 and don't qualify to remain to be heard in the county's Law Division courts. Rather, she agreed to send the case to small claims court in Cook County's First Municipal District.
In federal court, Bucklo also found the reforms should apply retroactively.
In her ruling, Bucklo declared she believed lawmakers did not necessarily change the law, but rather clarified their intent concerning how damages should be calculated by the courts.
Plaintiffs argued the Illinois Supreme Court's decision, which triggered the reforms, "left no room for clarification by the legislature" concerning the reforms' impact on pending cases.
But Bucklo said that assertion doesn't square with the Illinois Supreme Court's clear invitation to lawmakers to address the question of how to define individual BIPA violations.
"... By inviting the legislature to 'clarify' the issue of damages, the Illinois Supreme Court endorsed the view that the issue was unsettled and that the legislature could permissibly settle it," Bucklo wrote.
The BIPA reform law "does just that," Bucklo said. "Accordingly, the clarified intent enacted (in the new law) must be applied as if it were clear from the date of the BIPA’s enactment."
Bucklo said this drops the potential payout to less than $75,000, meaning Gregg's lawsuit cannot continue in federal court, under the law.
Gregg and his lawyers have not yet indicated how they may respond to Bucklo's ruling.
However, in Cook County court, Feuer and the plaintiffs have petitioned Judge Schneider to reconsider her decision.
They have also indicated they intend to appeal.
That could mean an Illinois appeals court - if not the Illinois Supreme Court once more - could have the final word on the question of how to apply the reforms to cases pending at the time the law was changed.