SPRINGFIELD – Associations representing companies that employ millions in Illinois are asking the state high court to take another look at a recent decision affirming fast food chain White Castle broke Illinois' biometrics privacy law every time it scanned workers' fingerprints, saying the high court's interpretation of the law will cripple and destroy businesses, putting many out of work, and harming Illinois' economy.
The associations pleaded for reconsideration last month as friends of the Court.
The justices ruled in February that liquidated damages of $1,000 for violation of the Biometric Information Privacy Act applied to every scan regardless of harm. That divided decision was authored by Justice Elizabeth Rochford, one of the state's newest Democratic justices, who was elected last November. Her campaign received large assistance from a political committee funded largely by trial lawyers. Rochford was not on the court when the case was argued months before the election.
As a result of the decision, restaurant chain White Castle faces potential liability of $17 billion.
White Castle's counsel, attorney Melissa Seibert, of the firm of Shook Hardy & Bacon, of Chicago, petitioned for reconsideration on March 10. Seibert, on behalf of White Castle, argued liquidated damages are intended to approximate small or uncertain damages.
She claimed legislators didn’t impose a penalty or provide statutory damages.
Siebert said she took no comfort in a statement of the state Supreme Court justices that judges could use discretion on damages, stating the Illinois Supreme Court had set a standard without guideposts.
On March 28, the Court received a brief from the Jackson Lewis firm of Chicago.
The firm represents the state’s retail merchants, the state health and hospital association, the national property casualty insurance association, state and national manufacturing associations, state and national trucking associations, the state’s chemical industry council, and Chicagoland Chamber of Commerce.
They defined the decision as annihilative liability.
The firm claimed their clients have 30,000 members and about 2.9 million employees.
They claimed more than 1,700 plaintiffs filed class actions since 2019 and the average class member received $885, while no plaintiff has ever alleged breach of privacy or theft of identity as a result of the alleged violations of the BIPA law.
The Jackson Lewis firm predicted catastrophic ramifications and offered an example of an employer scanning 50 workers 1,000 times a year with a statute of limitations at five years.
“A small business with 50 such employees would face statutory liquidated damages of $250 million,” they wrote.
They claimed Chicagoland Chamber of Commerce showed defendants in 47% of pending cases employed fewer than 500 workers.
They claimed companies would stop using technology, contrary to the legislature’s intent, rather than face the risk of lawsuits under the court's interpretation of the law.
They claimed companies would go out of business leading to rampant unemployment.
On the same date Restaurant Law Center, Retail Litigation Center, and National Retail Federation, all of Washington, filed a friendly brief for reconsideration.
Their counsel at Skadden Arps in Chicago and New York described damages under the decision as crippling, disproportionate and business ending.
They claimed the law wasn’t designed to impose extraordinary damages on businesses that adopted good faith measures to enhance the security of employees’ information, “particularly where no one was harmed.”
“Nor was the Act designed to be a vehicle for entrepreneurial litigants to leverage the exposure of windfall statutory damages to extract massive settlements,” they wrote.
They claimed small businesses are coerced into large settlements when faced with insolvency.
“A per scan theory doesn’t remedy the evil the legislature sought to address,” they wrote.
The restaurant and retail associations claimed legislators adopted the Act to protect a secrecy interest.
“No new information is being collected in subsequent scans so there is no new violation to which a penalty could attach,” they wrote.
On the same date counsel at Mayer Brown of Chicago filed a friendly brief for reconsideration on behalf of the state and national chambers of commerce.
“Hundreds of pending cases involve similarly gigantic damage claims that could toll the death knell for even large, financially secure businesses,” they wrote.
They claimed the Court’s statement that courts had discretion to fashion appropriate awards left a staggering degree of uncertainty.
They stated that if the justices don’t reconsider their decision, they should change it.
They added that the justices should first determine an amount necessary to compensate plaintiffs for harm they suffered and should next assess an amount for deterrence.
“If an award is financially crippling, it likely far exceeds the amount needed to deter the defendant and others from reengaging in similar conduct in the future,” they wrote.