Illinois Cases To Watch In 2024

In this Law360 article on Illinois cases to watch in 2024, partner Martin Roth discussed his team's past victory for Blackstone in a Genetic Information Privacy Act (GIPA) case and how it may have inspired recent filings. 

One of the biggest players in Illinois politics faces a criminal racketeering trial, a host of lawsuits filed under a decades-old genetic information privacy law will advance and the state's high court is expected to further weigh in on insurance coverage for litigation under the state's biometric privacy statute in some of the Illinois cases to watch in 2024.

Former Illinois House Speaker Michael Madigan is set to go to trial in April on claims that he led a criminal enterprise for nearly a decade, in which he used his positions as a legislative leader, chairman of the Illinois Democratic Party, committeeman of Chicago's 13th Ward and partner of Chicago law firm Madigan & Getzendanner to solicit and receive financial benefits for himself and his associates.

The Illinois Supreme Court may want to set the record straight after an appellate panel ruled in late December that two insurers are not on the hook for part of a $19 million settlement in an underlying lawsuit filed under the Illinois Biometric Information Privacy Act, based on a broad violation-of-law policy exclusion that the Seventh Circuit has interpreted very differently.

And attorneys told Law360 they are watching for further case law developments not just in the BIPA landscape, but under a different Illinois privacy law at the center of a new wave of class action litigation targeting employers and insurance companies.

Here are some of the biggest Illinois cases to keep on your radar in 2024.

'Blockbuster' Corruption Trial Of Illinois' Most Powerful Politician

After former Chicago Alderman Ed Burke was found guilty of racketeering, extortion and bribery last month, Madigan will be the next powerful Chicago political figure to stand trial.

When Madigan faces a jury on racketeering, bribery and conspiracy charges this year, it's not just the man on trial, but Illinois politics itself, given his decades of considerable power and influence on all levels of government, experts say.

"The Madigan case is a blockbuster. I would venture to say this is the most significant case this decade," Chris Hotaling, a Nixon Peabody LLP partner who worked as an Illinois federal prosecutor for 16 years, said. "I'm not sure you're going to see anything more important, more wide-ranging, or more relevant in terms of a deep, insider look into the way Illinois government runs than this case."

Prosecutors allege Madigan agreed to use his political influence to secure lucrative political appointments, facilitate necessary zoning approval for a real estate project and push for the passage of a bill that would transfer a Chicago land parcel from the state to the city in exchange for legal work being steered to his law firm. And he used his position as head of the state's Democratic Party to influence and secure the loyalty of legislators by providing or withholding staff and money to those lawmakers and campaigns, the government claims.

The indictment also lays out Madigan's alleged role in Exelon Corp. subsidiary Commonwealth Edison's bribery scheme to push for favorable energy regulation, for which a former ComEd CEO and three of the utility's ex-lobbyists were convicted last year.

That conviction shows that for at least part of the Madigan case, the jury buys what the government is selling, Hotaling said.

"The government had an opportunity to test its evidence in the 'ComEd Four' case and had a chance to hear the types of defenses and arguments they might hear this time around," he said. "It gives them an opportunity to even further sharpen their direct examination and their arguments, looking forward to Madigan. They had a dry run. And in that dry run, the jury found the evidence compelling."

What is still untested after the ComEd trial is the 23rd charge Madigan was hit with in a superseding indictment, relating to a different state utility, Hotaling said. AT&T Illinois entered into a deferred prosecution agreement in October 2022, in which it admitted it arranged to pay a Madigan ally in order to win the Democrat's vote and influence over favorable legislation. The government will dismiss a one-count criminal information charge accusing AT&T Illinois of using an interstate facility to promote legislative misconduct after two years of deferred prosecution in exchange for cooperation and a $23 million fine.

While this team of prosecutors has seen success in getting corruption convictions, Madigan won't go down without a fight, and has some of the best attorneys available to mount his defense, Hotaling said, making it a particularly compelling trial to watch in a state that is no stranger to seeing its top officials in courtrooms.

"This is really going to be a clash of the titans, on both sides," he said. "We're going to see some top-notch lawyering."

The case is USA v. Madigan, case number 1:22-cr-00115, in the U.S. District Court for the Northern District of Illinois.

Broad Exclusions For BIPA Coverage

Affirming a lower court's finding that National Fire Insurance Co. of Hartford and Continental Insurance Co. owed Visual Pak no duty to defend an Illinois Biometric Privacy Act lawsuit under the terms of their policies, a First District Illinois Appellate panel in December acknowledged that the Seventh Circuit's interpretation of state insurance laws would reach the opposite result. But the panel said, "we believe that this federal decision was wrongly decided and decline to follow it."

In the underlying class action suit, lead plaintiff Luis Sanchez claimed his rights under BIPA were violated because Visual Pak and the staffing agency it used did not get his informed, written permission before requiring him to scan his fingerprint to clock in and out of work.

The insurers filed a declaratory judgment action arguing that they did not owe a duty to defend or indemnify Visual Pak, citing an exclusion in their policies that precludes coverage for violations of the Telephone Consumer Protection Act, the CAN-SPAM Act, the Fair Credit Reporting Act, and the Fair and Accurate Credit Transaction Act, and also contains a "catchall" provision that bars coverage for any other statute that governs "the dissemination, disposal, collecting, recording, sending, transmitting, communicating, or distribution of material or information."

The Illinois appellate court found that the exclusion bars coverage for liability arising from BIPA lawsuits. Months earlier, the Seventh Circuit took a different approach, ruling that Citizens Insurance Co. of America must defend an information technology company against two proposed BIPA class actions, concluding that the nearly identical language of that catchall exclusion was too ambiguous and "purports to take away with one hand what the policy purports to give with the other in defining covered personal and advertising injuries."

While Illinois state courts aren't bound by federal decisions, it's a matter that the Illinois Supreme Court is likely to settle given the differing perspectives, and Visual Pak is likely to petition for an appeal given the millions at stake, according to Jason Rosenthal of Much Shelist PC.

It's also worth noting that the Illinois appellate panel said that the Seventh Circuit improperly analyzed the state's insurance law, Rosenthal told Law360.

"If judges are reading a policy incorrectly, and incorrectly applying Illinois law to this policy language, how is the average policyholder supposed to coherently review the insurance contracts that they purchased?" he posed. "It's a question the Illinois Supreme Court needs to answer."

And there's a lot at stake financially, with BIPA providing up to $5,000 in damages for a violation. While the Illinois Supreme Court has held that BIPA damages aren't meant to be ruinous for defendants, given that the justices have largely favored plaintiffs in biometric privacy litigation, "insurance coverage is the best if not the only way out for some defendants," Rosenthal said.

It's an issue that will be important to plaintiffs as well, as an insurance policy may be the likely source of settlement or damages payouts, he said.

"I suspect this is one case in which both BIPA defendants and BIPA plaintiffs have aligned interests," Rosenthal said. "If plaintiffs and plaintiffs' counsel are able to secure a large judgment, they'll need to collect that judgment."

The case is National Fire Insurance Co. of Hartford et al. v. Visual Pak Co. et al., case number 1-22-1160, in the Appellate Court of Illinois, First District.

Voice Recognition Cases Could Expand BIPA's Scope

Amazon Alexa users' pending lawsuit alleging the device's voice identification technology unlawfully collects and handles their biometric voice data and similar cases could soon test the scope of what's really necessary to identify a person for the purposes of establishing a BIPA violation, according to Ken Suh, a privacy and technology attorney at Locke Lord LLP.

BIPA litigation has largely targeted the collection of employees' fingerprints for timekeeping purposes or the collection of facial geometric data through photographs and technology like virtual try-on options on retailers' websites. The relatively few cases centered around voice recognition haven't gotten as much attention, he said.

In the Amazon case, an Illinois federal judge in November denied a motion to dismiss and allowed the suit to move forward, but suggested that some of the allegations were thin and might not hold up at later stages of the case.

One plaintiff did not create a Voice ID on an Alexa device, but rather claims she spoke to a device on which another plaintiff had enrolled his face ID, and alleges Amazon still captured her voiceprint because it compared her voice to his to determine if it matched.

Reading BIPA to impose liability under these circumstances "would stretch BIPA far beyond its intended scope, place Amazon and other technology providers in an impossible position, and effectively outlaw most biometric technology in Illinois," Amazon had argued.

But the judge allowed the claim to move ahead for now, saying that whether the allegation is "borne out by the evidence is an issue for summary judgment, not a motion to dismiss."

Since voice recognition technology like what's at the center of the Amazon case relies on voice identifiers to improve command recognition, should appellate courts rule next year as these cases develop further that defendants are liable for tech beyond what affirmatively identifies a person, Illinois could see even more litigation under its biometric privacy statute, Suh said.

The case is Wilcosky v. Amazon.com Inc. et al., case number 1:19-cv-05061, in the U.S. District Court for the Northern District of Illinois.

GIPA Suits Ramp Up

Illinois has seen a proliferation of privacy class actions under BIPA for years, but in the last six months, filings have grown alleging violations of a different privacy statute: the Genetic Information Privacy Act, which bars employers from asking about genetic information and using it to make employment decisions.

Many of the suits have taken aim at companies that required physicals as a contingency for hiring workers, with candidates and employees claiming questions about their family medical histories during those doctor's appointments violated GIPA.

The Illinois law prohibits employers from directly or indirectly requesting that kind of information and using it in hiring, firing, demoting or determining work assignments or classifications of applicants and employees. It also provides that insurers can't use or disclose genetic information for underwriting purposes, such as determining eligibility for coverage or the computation of premium or contribution amounts, and suits have begun to be filed against major insurance companies like AIG and Prudential.

Martin Roth, a Kirkland & Ellis LLP partner, posits a case he argued for Blackstone Group at the Seventh Circuit last year could possibly have inspired some of the recent filings.

In that suit, Ancestry.com users alleged Blackstone compelled it to disclose the genetic information of its users as part of its $4.7 billion acquisition of the genetic testing company in 2020. The users argued that violated their rights under GIPA because the law prevents the disclosure, release or transfer of genetic information to unauthorized third parties without advanced written consent. 

"We argued the statute didn't allow that, and used employers and insurers as an example, focusing on the language of the statute," Roth said.

The Seventh Circuit rejected the attempt to revive what it called a "bare bones" complaint, and noted that provisions of GIPA expressly contemplate genetic testing or information that is "requested," citing as an example employers requesting it as a condition of employment, and not merely passed along in the context of a merger or acquisition.

In the same opinion, the appellate panel said there was a "dearth of Illinois precedent examining GIPA," which could change in 2024. 

"It is uncharted territory, and I think we'll see motions to dismiss, class certification and other issues come down in this next year," he said.