BSCR Firm News/Blogs Feed Sep 2019 00:00:00 -0800firmwise of "Confidential" Co-Defendant Settlement Prove Party Bad Faith and Earn Counsel a Disciplinary Referral Sep 2019Illinois Law Blog<p>A well-established and often referred to as sacred part of American jurisprudence is the confidential nature of settlement negotiations and terms. In a recent opinion, Illinois&rsquo; First District Appellate Court reminded litigants that such confidentiality, in fact, can be lost.&nbsp;</p> <p>In <i>Chernyakova v. Puppala, et al.</i>, 2019 IL App (1st) 173066, Plaintiff Elena Chernyakova sued Northwestern Memorial Hospital, McGaw Medical Center of Northwestern University and Vinaya Puppala, M.D. alleging that while she was hospitalized at Northwestern for alcohol intoxication, Dr. Puppala, an employee of McGaw, electronically accessed Plaintiff&rsquo;s medical chart and took and posted photos of her on social media.&nbsp;Plaintiff and Dr. Puppala knew each other socially, and while she was admitted, Dr. Puppala visited Plaintiff twice just hours after admission.&nbsp;He used his credentials to view Plaintiff&rsquo;s electronic medical chart and spoke with Plaintiff&rsquo;s treating physicians regarding her progress and possible discharge.&nbsp;On his second visit, Dr. Puppala took photographs of Plaintiff in what was still an intoxicated state and posted them to Facebook and Instagram.&nbsp;Plaintiff contested that she had consented to Dr. Puppala accessing her medical records, speaking to her treating physicians, or taking and posting her photograph.</p> <p>The Cook County Circuit Court granted summary judgment to Northwestern and McGaw, and Plaintiff proceeded to trial against Dr. Puppala.&nbsp;During trial, Plaintiff settled with Dr. Pappula and the parties requested an on the record &ldquo;hearing&rdquo; wherein the attorneys outlined the terms of the &ldquo;confidential&rdquo; settlement for the trial judge.&nbsp;Separately, Plaintiff pursued an appeal of the summary judgment in Northwestern and McGaw&rsquo;s favor.</p> <p>During the pendency of the appeal, Northwestern and McGaw&rsquo;s counsel obtained information that the terms of the &ldquo;confidential&rdquo; settlement called in question the validity of the factual underpinnings of the lawsuit.&nbsp;Defense counsel moved the trial court to unseal the transcript of the settlement hearing so that it might be considered by the appellate court on a motion to dismiss the appeal even though those proceedings had no direct connection to the summary judgment proceedings.&nbsp;The trial court ultimately unsealed the transcript, and the parties agreed it would be filed in the appellate court under seal.</p> <p>While generally the appellate court&rsquo;s review of summary judgment orders is strictly limited to the materials of record before the Circuit Court at the time the summary judgment was entered, this case presented a unique situation.&nbsp;As the appellate court noted, it implicated the appellate court&rsquo;s responsibility to &ldquo;strive to enhance and maintain confidence in our legal system.&rdquo;&nbsp;The appellate court found the contents of the settlement transcript lead to the inescapable conclusion that the appeal was frivolous and being pursued in bad faith.&nbsp;The transcript disclosed that at the hearing counsel stated the amount Dr. Puppala agreed to pay and that Plaintiff agreed to write favorable letters on the doctor&rsquo;s behalf stating that her underlying allegations were &ldquo;mistaken&rdquo; and that she consented to the photos and postings.&nbsp;Significantly, the appellate court learned that after the Circuit Court ordered the settlement hearing transcript unsealed, Plaintiff&rsquo;s counsel had nevertheless instructed the court reporter to not provide a copy to Defendants.</p> <p>On appeal, Plaintiff argued there is a presumption that favors the validity of confidentiality provisions in settlement agreements such that the settlement hearing transcript could not be unsealed as a matter of law.&nbsp;The appellate court explained that Plaintiff&rsquo;s argument demonstrated a misunderstanding of the confidentiality protection afforded to settlement agreements.&nbsp;Once Plaintiff&rsquo;s counsel described the terms of the settlement to the trial judge, any confidences evaporated and sealing the confidential terms did nothing to save them.&nbsp;By informing the trial judge of the settlement terms on the record, counsel made those terms a part of the public record which could not be sealed.</p> <p>The appellate court also found Plaintiff&rsquo;s counsel was incorrect in his assertion that Illinois Supreme Court Rule 408 protected the confidential nature of the settlement terms.&nbsp;Rule 408 provides that evidence of &ldquo;furnishing or offering or promising to furnish &ndash; or accepting or offering or promising to accept &ndash; a valuable consideration in compromising or attempting to compromise the claim&rdquo; and &ldquo;conduct or statements made in compromise negotiations regarding the claim&rdquo; is inadmissible &ldquo;to prove liability&hellip; or to impeach through a prior inconsistent statement or contradiction[.]&rdquo;&nbsp;Such evidence may, however, be admissible to establish bad faith.&nbsp;Here, the inquiries into settlement negotiations was to establish wrongdoing and Rule 408 offered no protection to Plaintiff.</p> <p>The appellate court found it significant that Plaintiff did not directly question the substantive accuracy of the settlement terms, which on their fact are irreconcilable with Plaintiff&rsquo;s continued pursuit of her claim against the Defendants.&nbsp;Plaintiff, through counsel, affirmatively agreed to fully exonerate Dr. Puppala by providing a letter completely contradicting the factual bases of the lawsuit.&nbsp;She knew those letters would be sent to favorably influence regulatory or financial decisions involving Dr. Puppala, while simultaneously continuing her quest for money damages against the Defendants under theories she asserted were &ldquo;mistaken.&rdquo;</p> <p>The appellate court dismissed the appeal as frivolous and not pursued in good faith.&nbsp;Further, it found Defendants entitled to their reasonable attorney fees and costs incurred as a result of defending against the frivolous appeal.&nbsp;The court also concluded that it could not turn a blind eye to Plaintiff&rsquo;s counsel&rsquo;s instruction to the court reporter to not provide the Defendants will a copy of the hearing transcript in contravention of the trial court order.&nbsp;As a result, the court instructed the clerk of the appellate court to forward a copy of the opinion to the Attorney Registration and Disciplinary Commission.</p> <p>The decision corrects any misconceptions that settlement negotiations and terms are absolutely protected.&nbsp;One must question how far this holding might reach as there are many proceedings which are held &ldquo;on the record&rdquo; but with the transcripts later sealed.&nbsp;Perhaps more importantly, the opinion cautions counsel against showing a lack of respect for the Circuit Court and for the appellate process in a blind drive for a successful outcome.</p> of Lost Wages Awards Under the FELA: the Illinois Appellate Court Applies Loos v. BNSF Aug 2019Illinois Law Blog<p>In <i>Munoz v. Norfolk Southern Railway Company</i>, 2018 IL App (1<sup>st</sup>) 171009 (<i>Munoz I</i>), Plaintiff Munoz sued his railroad employer under the FELA for an on-duty personal injury. A jury awarded Munoz a large sum attributed to past and future lost wages.&nbsp;After the verdict, the railroad moved for a setoff, claiming Munoz owed taxes on the lost wages award under the Railroad Retirement Tax Act (RRTA).&nbsp;Munoz argued that the award of lost wages should be treated the same as personal injury awards that are not subject to income taxes.&nbsp;</p> <p>The trial court denied the railroad&rsquo;s motion, relying on the Missouri Supreme Court&rsquo;s opinion in <i>Mickey v. BNSF Railway Co., </i>437 S.W. 2d 207 (Mo. banc 2014).&nbsp;In <i>Mickey</i>, the Missouri Supreme Court held that, like the exclusion for personal injury awards under Internal Revenue Code &sect; 104(a)(2), an FELA lost wages award does not constitute income.&nbsp;Therefore, lost wages do not qualify as taxable compensation under the RRTA.</p> <p>The railroad appealed, arguing that the plain language of the RRTA, when read in conjunction with the Railroad Retirement Act, supports a finding that an FELA lost wages award is compensation subject to withholding taxes.&nbsp;The Illinois Appellate Court disagreed and affirmed the trial court.&nbsp;The Appellate Court found that the RRTA defines &ldquo;compensation&rdquo; as money paid to an employee for &ldquo;services rendered&rdquo; and lost wages cannot be paid to an employee for &ldquo;services rendered&rdquo;.</p> <p>Shortly thereafter, the U.S. Supreme Court considered the same issue in <i>BNSF Railway Co. v. Loos</i>, 129 S. Ct. 893 (2019), and held that FELA lost wages awards are compensation subject to taxation.&nbsp;The Illinois Supreme Court then directed the Appellate Court to vacate its initial judgment in <i>Munoz I </i>and consider the effect of the <i>Loos</i> case.&nbsp;Upon reconsideration, the Appellate Court concluded that Munoz&rsquo;s lost wages award was taxable compensation under the RRTA.&nbsp;<i>Munoz v. Norfolk Southern Railway Company</i>, 2019 IL App (1<sup>st</sup>) 171009-B (<i>Munoz II</i>).</p> <p>The <i>Munoz II</i> &nbsp;Court observed that in <i>Loos</i> the Supreme Court looked to the Social Security Act (SSA) and the Federal Insurance Contributions Act (FICA) for guidance as to the meaning of &ldquo;compensation.&rdquo; &nbsp;The Supreme Court found that the RRTA&rsquo;s definition of compensation was &ldquo;materially indistinguishable&rdquo; from FICA&rsquo;s definition of &ldquo;wages&rdquo;, to include remuneration for &ldquo;any service, of whatever nature, performed . . . by an employee.&rdquo;</p> <p>Previous Supreme Court cases held that &ldquo;wages&rdquo; under the SSA and FICA included awards of backpay and severance payments. &nbsp;These cases held that such awards represented pay for active service, in addition to pay for periods of <i>absence </i>from active service. &nbsp;As a result, the Supreme Court held that &ldquo;compensation&rdquo; under the RRTA can encompass pay for periods of <i>absence </i>from active service, as long as the remuneration in question &ldquo;stems from the employer-employee relationship.&rdquo;</p> <p>The Supreme Court found that damages for lost wages awarded under the FELA &ldquo;fit comfortably&rdquo; within these parameters.&nbsp;Wage loss damages compensate an employee for time during which he or she is &ldquo;wrongfully separated&rdquo; from employment, and this is akin to an award of back pay.&nbsp;An award of back pay that compensates an employee for wrongful discharge constitutes wages under the SSA, even though the wages were awarded because of the employer&rsquo;s wrongdoing. &nbsp;Based on this reasoning, &ldquo;there should be no dispositive difference between a payment voluntarily made and one required by law.&rdquo;</p> <p>The <i>Munoz II</i> Court reiterated the distinction between personal injury damages that are not taxable under the Internal Revenue Code with FELA lost wage awards.&nbsp;Personal injury damages are excluded from &ldquo;gross income&rdquo; by the Code.&nbsp;And, &ldquo;gross income&rdquo; cannot be conflated with &ldquo;compensation&rdquo; under the RRTA, which Congress treated as discrete tax bases.</p> <p><b>CONCLUSION</b></p> <p>The Illinois Appellate Court is likely the first of many courts that will apply the <i>Loos</i> decision and find that an award of lost wages in an FELA case is subject to taxation.&nbsp;The resolution of the split on this issue will have practical ramifications in FELA litigation, including modification of jury instructions and, potentially, attempts to allocate settlement proceeds to sources other than lost wages.<br /> <br /> <br /> <em>* Kelly M. &ldquo;Koki&rdquo; Sabat&eacute;s, Summer Law Clerk, assisted in the research and drafting of this post. Sabat&eacute;s is a 3L student at the University of Missouri-Columbia.</em></p> a Long, Strange Trip It's Been: Illinois Supreme Court Upholds Decision That Res Judicata Does Not Apply to Involuntary Dismissal of Multiple Prior Complaints Spanning Ten Years Jul 2019Illinois Law Blog<p>Plaintiff Gerald Ward originally sued Decatur Memorial Hospital in 2009 alleging medical malpractice in the treatment of his brother who developed a post-surgery bed sore that became infected. Plaintiff alleged that his brother died from complications associated with a bacterial infection approximately one month after the Hospital discharged him.</p> <p>Plaintiff initially filed a nine-count complaint against the Hospital, Decatur Memorial Hospital Home Health Services, and unknown employees of the Hospital.&nbsp;The trial court granted the Hospital&rsquo;s Motion to Dismiss the majority of the counts but gave Plaintiff permission to refile.&nbsp;Plaintiff then filed first and second amended complaints.&nbsp;The court again dismissed both but with permission to refile.&nbsp;After plaintiff filed a third amended complaint, the Hospital filed responsive pleadings and the parties continued with discovery towards trial.&nbsp;</p> <p>In 2015, nearly four years later and only twenty days before the scheduled trial, the Hospital learned that the plaintiff intended to call a rebuttal expert not previously disclosed.&nbsp;The Hospital moved to bar the newly disclosed rebuttal expert, arguing that plaintiff had ample time during the six-year pendency of the case to obtain and properly disclose experts.&nbsp;Before the trial court ruled on the motion to bar, plaintiff moved for leave to file a fourth amended complaint to &ldquo;more correctly and succinctly describe the alleged negligence of defendant&rsquo;s nurses as a result of facts developed throughout discovery.&rdquo;</p> <p>Taking the motions together, the trial court granted the Hospital&rsquo;s motion to bar the proposed rebuttal expert witness and denied plaintiff&rsquo;s motion for leave to file a fourth amended complaint.&nbsp;The court cited the age of the case and noted that the allegations in the third amended complaint were substantially different from those in the proposed fourth amended complaint. &nbsp;Plaintiff then voluntarily dismissed the action.</p> <p>Four months later, plaintiff refiled the action and asserted nearly identical allegations as those set forth in the disallowed fourth amended complaint in the prior action.&nbsp;The Hospital moved to bar plaintiff from disclosing witnesses who had been barred in the previous case and to limit other witnesses to the opinions they gave in the initial action, arguing that plaintiff violated Illinois Supreme Court Rule 219(e) by using the dismissal and refiling to avoid having to comply with the previous court&rsquo;s order.&nbsp;The trial court partially granted the Hospital&rsquo;s motion and limited the opinions of witnesses to those provided in the prior case, but denied the Hospital&rsquo;s request to bar the rebuttal witnesses.&nbsp;</p> <p>The Hospital then moved for summary judgment on the basis of <i>res judicata</i>, arguing that the trial court had dismissed &ldquo;numerous counts of various iterations&rdquo; of plaintiff&rsquo;s complaint in the prior action and that he elected not to replead the counts.&nbsp;The Hospital asserted those dismissals constituted final adjudications on the merits as the complaints had been dismissed because of legal impediments, such that it was entitled to summary judgment on the basis of <i>res judicata</i>.&nbsp;</p> <p>Plaintiff opposed the motion, asserting that medical negligence was the sole cause of action in all the iterations of the complaint and no final judgment had been entered in the first action.&nbsp;The trial court ultimately granted the Hospital&rsquo;s motion for summary judgment based on <i>res judicata</i> after initially denying the motion.</p> <p>On appeal, the Fourth District Appellate Court reversed the trial court&rsquo;s grant of summary judgment.&nbsp;It concluded that &ldquo;by granting the plaintiff permission to file an amended complaint, the trial court vacated any suggestion of &lsquo;with prejudice&rsquo; in its dismissal of individual counts of the original complaint.&rdquo; &nbsp;The appellate court further observed that the trial court had permitted the plaintiff to amend &ldquo;over and over again, all the way to the third amended complaint&hellip;which remained pending and completely unadjudicated at the time of the voluntary dismissal.&rdquo;</p> <p>The Illinois Supreme Court <a href="">affirmed</a> the decision of the appellate court, concluding that <i>res judicata</i> was inapplicable and did not prohibit plaintiff&rsquo;s refiled lawsuit because there had not been a final judgment on the merits.&nbsp;Each previous dismissal had been dismissals without prejudice and with permission given to refile.&nbsp;As such, the dismissals were not final, did not terminate the litigation, and did not firmly establish the parties&rsquo; rights.&nbsp;</p> <p>Despite affirming the decision, the Court criticized the &ldquo;tortured history of litigation&rdquo; and lack of urgency on the part of the parties and the trial judge to resolve the matter in a timely or efficient manner.&nbsp;Additionally, while conceding that a plaintiff has the absolute right to refile a dismissed complaint, the Court cited the admission made by plaintiff&rsquo;s counsel on the record that he voluntarily dismissed the initial action because of his disagreement with the trial court&rsquo;s rulings.&nbsp;Noting that Rule 219(e) &ldquo;strikes the delicate balance between preserving a plaintiff&rsquo;s absolute right to refile, while discouraging noncompliance with the trial court&rsquo;s orders,&rdquo; the Court commented that while the Rule does not change the existing law as to a plaintiff&rsquo;s right to seek a voluntary dismissal, &ldquo;this paragraph does clearly dictate that when a case is refiled, the court shall consider the prior litigation in determining what discovery will be permitted, and what witnesses and evidence may be barred.&rdquo;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Thus, while the Supreme Court reaffirmed a plaintiff&rsquo;s absolute right to refile a dismissed complaint, the Court&rsquo;s dictum regarding the applicability of Rule 219(e) offers hope to litigants defending refiled actions regarding the potential for limiting the scope of evidence in the face of demonstrated noncompliance with prior orders.</p> Counties Remain Top Jurisdictions for Asbestos Litigation in 2018 Jul 2019Illinois Law Blog<p><b>Asbestos litigation in Illinois is generally trending down.</b></p> <p>Although 2018 data is still populating, according to the <i>KCIC Asbestos Litigation: 2018 Year in Review</i>, asbestos litigation, overall, is in a downward trend. Filings are down approximately 11% from 2017 and 17% from 2016. Even though many of the main venues for asbestos litigation saw major decreases, the only notable increase occurred in St. Clair County, IL. St. Clair County experienced a 30% increase with 207 cases filed in 2017 to 268 in 2018. Madison County, IL remains the epicenter for asbestos litigation making up 27% of all 2018 filings.</p> <p>Mesothelioma remains the main disease type, but it did experience about a 6% decrease; however, the largest decreases were from non-malignant and other cancer filings, which are down 40% and 31%, respectively, compared to 2017. Of note, even though asbestos filings as a whole are decreasing there is a notable increase in the number of females filing suit and not only in talc cases.</p> <p><b>Madison and St. Clair County remain popular venues for asbestos filings.&nbsp;</b></p> <p>Even with the slight decrease in filings, Illinois, specifically Madison and St. Clair Counties, remains the most popular venue.&nbsp; The vast majority of those claims filed in Illinois are &ldquo;tourist filings&rdquo; with only 7% of the complaints filed in Illinois by Illinois residents, with the remaining 93% of filings by non-residents. According to KCIC, although &ldquo;tourist filings&rdquo; are still the norm they have noticed the same plaintiff filing multiple lawsuits, for the same claim, in several jurisdictions which may be the result of recent personal jurisdiction rulings.&nbsp; While KCIC states that this has not become common practice, should it become more common&nbsp;it does have the potential to increase the number of asbestos lawsuits filed.</p> <p><b>Bankruptcy and recent legislation regarding trust claims may be impacting the number of asbestos filings.</b></p> <p>Bankruptcy and recent legislation addressing trust claims could be another reason we are seeing a decrease in asbestos filings. Many asbestos claims are now paid out through post-bankruptcy trusts as many of the original asbestos defendants have declared bankruptcy. This has brought attention to how the bankruptcies affect solvent defendants left in the litigation and the recovery plaintiff&rsquo;s collect. Unlike the tort system, these trusts may have as many as 18,000 non-malignant claims per year. The higher volume of claims is attributed to lower evidentiary standards and transactional costs. Therefore, State legislatures have focused their attention on BTT litigation by creating a more transparent trust claim submission process. This process requires plaintiffs to share certain information in the torts system regarding their trust filing history and, sometimes, even mandating certain time restrictions for such filings. These submissions include listing all personal injury claims they have made or anticipate making against a trust and require the plaintiff to consent to discovery of trust information. In some jurisdictions, including Kansas and Michigan, failure to comply with these requirements is sanctionable conduct. Kansas, North Carolina, and Michigan are the latest states enacting legislation, bringing the total count to sixteen states nationwide.&nbsp;</p> <p><b>Talc litigation is bucking the trend.</b></p> <p>Talc litigation is the one area of asbestos litigation that is not decreasing.&nbsp; There was a 68% increase in filing of Talc claims from 2017 to 2018.&nbsp; Talc use is widespread; therefore, it carries a risk of an enormous potentially exposed population. There are claims that the cosmetic use of the talc itself caused ovarian cancer; while, there are also claims that asbestos within talc caused mesothelioma or lung cancer. It has been easier for courts to focus on personal jurisdiction in these types of cases because there are fewer defendants. Therefore, suits tend to be filed where defendants do business rather than forum shopping as they do in Mesothelioma cases. Still,&nbsp;the top venue for Talc litigation is St. Louis, MO, with Madison and St. Clair County close behind.</p> <p><b>The plaintiffs&rsquo; bar continues to find ways to keep asbestos litigation alive.</b></p> <p>Original forecasting models did not consider alternative or non-traditional routes of exposure; therefore, there has not been the reported decrease that historical studies initially predicted. While overall mesothelioma incidence is decreasing, the propensity to sue, especially for females, is actually increasing which can be attributed to increase in cosmetic talc exposure and it allegedly causing ovarian cancer. KCIC reports that women make up the majority of secondary exposure claims with Madison County, IL, becoming the top jurisdiction for female claimants alleging secondary exposure only. Madison County is also the top jurisdiction for claims of non-occupational exposure filed in 2018.</p> <p>While 2018 showed the usual course for asbestos litigation, there were some fluctuations. The most significant change is the potential effects of talc-related filings and state legislatures taking an active role in BTT litigation.<br /> <br /> For more details and statistics regarding asbestos litigation in 2018, read the industry report from KCIC <a href="">here</a>.<br /> <br /> <em style="color: rgb(0, 0, 0);">* Kelly M. &ldquo;Koki&rdquo; Sabat&eacute;s, Summer Law Clerk, assisted in the research and drafting of this post.&nbsp;Sabat&eacute;s is a&nbsp;rising 3L student at the University of Missouri-Columbia.</em></p> Awards Nearly Twenty Times Damages in Illinois Wage Payment Act Case May 2019Illinois Law Blog<p>On December 27, 2018 the Illinois Appellate Court for the First District affirmed an award of attorney&rsquo;s fees and costs to plaintiff which was nearly twenty times the damages awarded at trial for an Illinois Wage Act claim. The Court ruled that the trial court did not abuse its discretion by awarding $178,449.97 in attorneys&rsquo; fees after a trial ending in a $9,226.52 judgment against the defendant.</p> <p align="center"><u>Facts</u></p> <p>Plaintiff Raymond Thomas sued defendant Weatherguard Construction Company, Inc. for $47,666.00 in commissions for contracts that he had procured on Weatherguard&rsquo;s behalf.&nbsp;A key issue at trial was whether Weatherguard employed Thomas.&nbsp;Plaintiff claimed violations of the Illinois Sales Representative Act and the Illinois Wage Payment Act, breach of contract and unjust enrichment.&nbsp;The trial court granted summary judgment to Weatherguard on one count, and, after nearly ten years of litigation, the matter proceeded to trial on the remaining claims.&nbsp;The trial court found that Thomas was indeed an employee of Weatherguard, but awarded Thomas only $9,226.52. The verdict was upheld on appeal but remanded to the trial court for a determination of an attorneys&rsquo; fee award to Plaintiff pursuant to the Wage Payment Act.&nbsp;Upon briefs submitted by the parties, the trial court awarded plaintiff $178,449.97 in attorney&rsquo;s fees and $1,124.68 in costs.&nbsp;Weatherguard appealed the award arguing that the award by the trial court was &ldquo;excessive.&rdquo;&nbsp;The Court of Appeals affirmed the award.</p> <p align="center"><u>The Attorney Fee Award</u>.</p> <p>On appeal, Weatherguard argued, amongst other things, that the fee award was excessive because it represented work for claims for which there was no basis for Thomas to recover attorney fees.&nbsp;Weatherguard contended the recovery of fees should be limited only to work done to further the Wage Payment Act claim.&nbsp;Additionally, Weatherguard argued that the disparity between the amount of the damages award and the amount of the fee award constituted an abuse of discretion by the trial court.&nbsp;The Court rejected Weatherguard&rsquo;s argument that Thomas was entitled only to fees for his statutory Wage Payment Act claim.&nbsp;The statute allows for employees successfully recovering under the Act to &ldquo;also recover costs and all reasonable attorney&rsquo;s fees.&rdquo;&nbsp;Weatherguard argued that, because attorney fees are ordinarily not recoverable without contract or statutory authority, plaintiff should only be entitled to recover for work by his attorney directly attributable to pursuing the statutory Wage Act Claim.</p> <p>The Appellate Court found that Thomas could recover fees and costs for all of his claims involving a common core of facts and related legal theories, even where he was successful only on some of the claims.&nbsp;The Wage Payment Act calls for recovery of &ldquo;all reasonable attorney&rsquo;s fees&rdquo; in a &ldquo;civil action.&rdquo;&nbsp;The Court noted that the only limiting language in the statute was that the attorney fees be &ldquo;reasonable,&rdquo; and concluded that the statute did not contain an exception to the rule allowing for attorney fees for claims stemming from the same common core of facts and related legal theories. The Court stated that an exploited worker ordinarily would not be in a position to bring a civil action against his employer without the statutory incentive of fee recovery by the prevailing attorney.</p> <p>The Court also determined that legislative history of the Wage Payment Act supported the finding that Thomas was entitled to fees for all of his claims.&nbsp;The Illinois legislature contemplated that litigation costs associated with bringing claims under the Act would not be borne by plaintiff employees.</p> <p>The Court rejected Weatherguard&rsquo;s argument that the vast difference between the amount of the damages award and the amount of the fee award constituted an abuse of discretion.&nbsp;Noting that in a matter involving fee shifting either by contract or statute an abuse of discretion does not automatically justify rejection of the amount sought in fees, the Court considered the conduct of Weatherguard in making the choice &ldquo;to aggressively litigate the case&rdquo; for ten years on a suit seeking &ldquo;only $47,666 in commissions.&rdquo;&nbsp;While courts may look to whether there is a reasonable connection between the fees and the amount involved in the litigation, the Appellate Court found that the &ldquo;years of attorney time expended and the amount at issue was deemed reasonable by defendant&rdquo; in defending the claims, and defendant &ldquo;cannot be heard to complain now.&rdquo;</p> <p>Weatherguard also argued that Thomas only received a fraction of the recovery that he sought and should receive only a fraction of the fees incurred.&nbsp;While the Appellate Court agreed that the amount of the fees in relation to the benefit is a relevant consideration, it noted that Thomas was successful on the primary issues of employment and compensation.&nbsp;Accordingly, the Court found no abuse of discretion.</p> <p align="center"><u>Guidance for the Future</u></p> <p>This case underscores that when litigating cases involving either contractual or statutory fee-shifting provisions, it is possible that fees may be awarded far exceeding the damages award.&nbsp;This possibility should be considered when assessing case value.</p> Legislature Proposes to Amend the Biometric Informational Act, Deleting Private Right of Action May 2019Illinois Law Blog<p>Proposed amendments to Illinois&rsquo; Biometric Information Privacy Act &ldquo;BIPA&rdquo; are welcomed by employers who have been bombarded with class action lawsuits in Illinois since the <i>Rosenbach </i>decision. SB 2134 provides that any violation resulting from the collection of biometric information by an employer for employment purposes is subject to the authority of the Department of Labor and must be enforced by the Attorney General.&nbsp;The proposed amendments would likely eliminate the influx of class action litigation into our court system, shifting the claims for violations to the Illinois Department of Labor from the State and Federal Courts.&nbsp;</p> <p>This is not the only proposed amendment to BIPA, which shows the legislators&rsquo; realization of much needed clarification to the Act.&nbsp;HB3024 was introduced to further define biometric identifier as to include electrocardiography results from a wearable device.&nbsp;&nbsp;</p> <p>Until the proposed amendments to BIPA are passed, stripping an individual&rsquo;s right of action and clarifying the definition of biometric identifiers, Illinois employers will likely face a slew of class action lawsuits.&nbsp;&nbsp;</p> <p>The proposed amendments to the BIPA are referred to committee but no hearing dates have been set at this time. We will follow the process of the proposed amendments and update this post as necessary.</p> Appellate Court Affirms Double Whammy Dismissal of Medical Negligence Case Based on Statute of Limitations and Statute of Repose May 2019Illinois Law Blog<p>The Illinois First District Appellate Court recently affirmed a Cook County Circuit Court&rsquo;s dismissal of a medical negligence action as time-barred by both the statute of limitations and the statute of repose. In reaching its <a href="">decision</a>, the appellate court relied upon long-standing Illinois case law as to when a medical negligence action accrues in a wrongful death action.&nbsp;</p> <p>In January 2017, plaintiff Joseph M. Osten (Osten), surviving husband of Gail Osten (decedent), filed a Complaint alleging medical negligence.&nbsp; In the Complaint, Osten alleged that defendant physician, one of decedent&rsquo;s treating doctors, ordered a screening mammogram on April 21, 2011, which was subsequently conducted by defendant radiologist technician and interpreted by defendant radiologist.</p> <p>According to the Complaint, a non-party technologist noticed a slightly inverted left nipple with a brown discharge, which decedent specifically denied she had ever seen. The mammogram revealed a bilateral benign calcification with no masses or other findings suggestive of malignancy. The results of the mammogram were not transmitted to the defendant physician, the screening mammogram was not converted to diagnostic mammography, and no ultrasound tests were ordered. &nbsp;&nbsp;Decedent was diagnosed with breast cancer in December 2011 and passed away in March 2015.</p> <p>Plaintiff&rsquo;s Complaint asserted five counts of professional negligence and wrongful death against defendants, alleging negligence in (1) failing to convert the screening mammogram to a diagnostic mammography, (2) failing to perform an ultrasound, and (3) failing to recognize the risk factors for breast cancer of an inverted nipple and brownish discharge.</p> <p>Defendants filed motions to dismiss plaintiff&rsquo;s Complaint, asserting plaintiff&rsquo;s claims were time-barred by both the two-year statute of limitations and the four-year statute of repose applicable to medical negligence claims. Defendants contended the statute of limitations began to run on decedent&rsquo;s medical negligence claims in April 2011, when the screening mammogram was performed or, at the latest, in December 2011, when she was diagnosed with breast cancer. &nbsp;Defendants argued that, under either date, the statute of limitations expired on the medical negligence claims no later than December 2013.</p> <p>Defendants also asserted the four-year repose period on any medical negligence claims began to run on the date of the alleged negligence, and therefore the repose period lapsed on April 21, 2015. Defendants further argued the plaintiff could not bring a wrongful death claim premised on defendants&rsquo; alleged medical negligence because the statute of limitations on those claims expired before decedent&rsquo;s death in March 2015.</p> <p>In response, the plaintiff argued his Complaint was timely because it was filed within two years of decedent&rsquo;s death, the same date plaintiff contended was the date the statute of limitations and statute of repose began to run on his wrongful death claims. Plaintiff argued defendants advanced no facts to show that in December 2011, decedent knew or reasonably should have known of defendants&rsquo; alleged negligence, making the date of death the only relevant date for measuring the timeliness of his claims.</p> <p>The appellate court held that:</p> <p style="margin-left: 40px;">&ldquo;[i]n a wrongful death action, the cause of action is the wrongful act, neglect, or default causing death and not the death itself.&rdquo; <i>Wyness v. Armstrong World Industries, Inc.</i>, 131 Ill. 2d 403, 411 (1989). Claims under the Wrongful Death Act must be commenced within two years of the person&rsquo;s death. 740 ILCS 180/2 (West 2016).&nbsp; Under the Wrongful Death Act, there can be no recovery &lsquo;where the decedent once had a cause of action, but was not entitled to maintain that action and recover damages at the time of [her] death.<i>&rsquo; Lambert v. Village of Summit</i>, 104 Ill. App. 3d 1034, 1037-38 (1982).</p> <p>With respect to the statute of repose issue, the appellate court held that the Illinois Supreme Court:</p> <p style="margin-left: 40px;">has observed that &ldquo;the statute of repose is triggered by the &lsquo;act or omission or occurrence&rsquo; causing an injury, rather than by the patient&rsquo;s discovery of the injury,&rdquo; and that &ldquo;the statute of repose cannot start to run until the last date of negligent treatment.&rdquo; <i>Cunningham v. Huffman</i>, 154 Ill. 2d 398, 405-06 (1993); see also <i>Kanne v. Bulkley</i>, 306 Ill. App. 3d 1036, 1040 (1999) (&ldquo;In failure-to-diagnose cases *** where a plaintiff blames a defendant&rsquo;s omission for his injury, the omission at issue is deemed to have occurred on the date defendant rendered his final treatment.&rdquo;).</p> <p>Based upon the above case law, the appellate court found that both the statutes of limitations and repose began to run either in April 2011 or, based on the allegations in plaintiff&rsquo;s Complaint, no later than December 2011.</p> <p>The <i>Osten</i> court noted multiple times that its decision was based solely upon the allegations contained in plaintiff&rsquo;s original Complaint and &ldquo;at no point did plaintiff seek leave to amend his Complaint to allege any additional facts to defeat the motion to dismiss.&rdquo;&nbsp; The opinion goes so far as to point out that &ldquo;[p]laintiff failed to allege a single fact that might allow an inference that defendants provided [decedent] with any treatment&mdash;negligent or otherwise&mdash;after April 21, 2011.&rdquo;&nbsp;</p> <p>Presumably, the Court was insinuating plaintiff could have potentially defeated the motions to dismiss if he had shown an &ldquo;ongoing course of continuous negligent medical treatment&rdquo;, which the Illinois Supreme Court found in <i>Cunningham v. Huffman</i>, 154 Ill. 2d 398, 609 N.E.2d 321 (1993), could extend the start date for the statute of repose.</p> <p>The<i> Cunningham</i> court concluded the statute of repose does not bar a plaintiff's action if s/he can demonstrate an ongoing course of continuous negligent medical treatment. To prove such, the plaintiff must demonstrate: (1) the existence of a continuous and unbroken course of negligent treatment, and (2) the treatment was so related as to constitute one continuing wrong. Thus, under <i>Cunningham</i>, not only does there need to be treatment, but the treatment must be negligent, a continuous and unbroken course, and so related as to constitute one continuing wrong. Whether plaintiff could have asserted facts to support such an argument is unknown.</p> <p>Although the <i>Osten</i> decision does not plow any new ground for calculating when Illinois&rsquo; statutes of limitations and repose issues begin to run, a consistent approach and analysis by the Illinois appellate courts should be reassuring to our healthcare industry clients on what will undoubtedly continue to be a frequently litigated issue in medical negligence cases.</p> <p><strong><i>Osten v. Northwestern Memorial Hospital</i>, 2018 IL App (1st) 172072</strong></p> Appellate Court Holds Employer's Alleged Biometric Information Privacy Act Violation Is Not Subject to Arbitration Apr 2019Illinois Law Blog<p>Not all employment-related claims are subject to an employment agreement&rsquo;s mandatory arbitration clause, according to the Illinois Appellate Court for the First District.</p> <p>In <i>Liu v. Four Seasons Hotel, LTD.</i>, 2019 IL App (1st) 182645 (April 9, 2019), the plaintiffs, all employees of the defendant hotels, filed a class action alleging their employer violated the Biometric Information Privacy Act (740 ILCS 14/1 et seq. (West 2016)) in their method of collecting, using, storing, and disclosing employees&rsquo; biometric data, namely fingerprints taken for timekeeping purposes.&nbsp; Defendants filed a motion to compel arbitration, arguing that each employee signed an employment agreement requiring &ldquo;wage and hour violation&rdquo; claims, as well as the initial question of arbitrability, be submitted to and decided by an arbitrator.&nbsp;</p> <p>Illinois enacted the Biometric Information Privacy Act in 2008 to help regulate the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.&nbsp; These identifiers include things like retina or iris scans, fingerprints, voiceprints, hand scans, or face geometry scans.&nbsp; The Act provides a private right of action that permits a prevailing party to recover damages of $1000 or actual damages (if greater) for negligent violation of the Act and $5000 or actual damages (if greater) for intentional or reckless violations, in addition to attorney&rsquo;s fees and costs.&nbsp;</p> <p>The plaintiffs, on behalf of themselves and all those similarly situated, claimed defendants scanned their fingerprints, placed and maintained that biometric data in a database, and then used it for timekeeping purposes.&nbsp; They alleged violations of the Act in defendants&rsquo; failure (1) to inform employees that it discloses fingerprint data to an out-of-state third party vendor; (2) to inform employees in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, and used; (3) to provide a retention schedule and guidelines for permanent deletion of biometric information; and (4) to acquire written releases from employees to collect biometric information.</p> <p>The trial court denied the defendant&rsquo;s Motion to Compel Arbitration, and the Appellate Court affirmed.&nbsp; The Appellate Court held the claims did not fit within the &ldquo;wage or hour violation&rdquo; category of disputes subject to mandatory arbitration under the employment agreements.&nbsp; The defendants argued the sole purpose for requiring employees to scan their fingerprints was to monitor the hours worked, which necessarily makes it a &ldquo;wage or hour violation&rdquo; claim.&nbsp; The Court, however, looked to how this phrase has been used in other contexts, such as under Illinois&rsquo; Wage Payment Act or Minimum Wage Law or the federal Fair Labor Standards Act.&nbsp; In all those enactments, wage and hour violation claims involve allegations of an employer wrongfully withholding compensation or failing to pay employees overtime rates.&nbsp; Plaintiffs here, in contrast, alleged nothing beyond violations of the Biometric Information Privacy Act.&nbsp; They made no claims of improperly withheld compensation or hours violations.&nbsp;</p> <p>The Court noted, citing to <i>Rosenbach v. Six Flags Entertainment Corp.</i>, 2019 IL 123186, that the Act is a privacy rights law that applies inside <i>and</i> outside the workplace.&nbsp; &ldquo;Simply because an employer opts to use biometric data, like fingerprints, for timekeeping purposes does not transform a complaint into a wages or hours claim.&rdquo;&nbsp;</p> <p>This opinion, as we noted in an <a href=";an=88848&amp;format=xml&amp;stylesheet=blog&amp;p=5258">earlier blog post</a> addressing <i>Rosenbach</i>, creates a strong incentive for employers to conform to the Act to prevent problems before they occur and subject them to potential civil litigation, as mandatory arbitration clauses may not cover the claims.&nbsp; &nbsp;</p> a case of first impression, the Appellate Court of Illinois allows counsel to withdraw previously disclosed testifying expert Apr 2019Illinois Law Blog<p>In a case of first impression, the Illinois Appellate Court, First District, applying federal law principles, held that a party who discloses a testifying expert may later redesignate that witness as a consultant whose opinions and work product are privileged and protected from discovery absent a showing of exceptional circumstances.</p> <p>In <i>Dameron v. Mercy Hospital and Medical Center,</i> plaintiff Alexis Dameron disclosed Dr. David Preston in her interrogatory answers as a testifying expert witness on May 30, 2017.&nbsp; She further disclosed, pursuant to the applicable rules, that Dr. Preston would provide testimony regarding the results of testing he was to perform on Ms. Dameron on June 1, 2017.&nbsp; Dr. Preston did perform tests of the Plaintiff and later prepared a report in which he discussed his findings and opinions, but the report was never disclosed, despite Illinois Supreme Court Rule 213(f)(3) requiring disclosure of &ldquo;any&rdquo; reports prepared by a controlled expert about the case.&nbsp;</p> <p>Almost two months later, on July 27, 2017, Ms. Dameron notified opposing counsel that she had &ldquo;inadvertently&rdquo; disclosed Dr. Preston as a testifying expert and amended her discovery answers excluding Dr. Preston as a testifying expert.&nbsp;</p> <p>On August 3, 2017, shortly after notifying opposing counsel of the inadvertent disclosure, Ms. Dameron filed a motion to designate Dr. Preston as a non-testifying expert consultant pursuant to Illinois Supreme Court Rule 201(b)(3), which states as follows:</p> <p style="margin-left: 40px;">A consultant is a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial. The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.</p> <p>The circuit court denied Ms. Dameron&rsquo;s motion to redesignate Dr. Preston and ordered Plaintiff to produce Dr. Preston&rsquo;s records and report regarding the testing he performed.&nbsp; Plaintiff refused, and the trial court found her in contempt, imposing a $100 fine. Plaintiff filed a motion to reconsider, which was likewise denied by the trial court, but reduced the fine to $1.&nbsp; Plaintiff then appealed the matter to the Appellate Court for the First Circuit.</p> <p>The Appellate Court ultimately reversed the circuit court&rsquo;s decision and held, as a matter of first impression, that where a previously disclosed testifying expert is <b>timely</b> withdrawn prior to disclosing his or her report in discovery, the expert may be redesignated as a Rule 201(b)(3) consultant and entitled to the consultant&rsquo;s privilege against disclosure, absent exceptional circumstances.</p> <p>Given it was a matter of first impression, the Appellate Court found sufficient similarities between Illinois and federal discovery rules and rendered federal case law on this issue persuasive.&nbsp; Federal case law supported the contention that both the disclosure of the expert as well as the expert&rsquo;s required report is necessary to fully disclose a testifying expert under Federal Rule of Civil Procedure 26.&nbsp; In this case, Ms. Dameron had only disclosed Dr. Preston&rsquo;s identity, but had not disclosed or identified his report because at the time she filed her answers to interrogatories, Dr. Preston had not yet conducted his testing.&nbsp;</p> <p>Defendants made several arguments in an attempt to gain access to Dr. Preston&rsquo;s examination results.&nbsp; They argued that Dr. Preston was a treating physician and, consequently, Plaintiff waived any right to withhold the results.&nbsp; The Appellate Court disagreed and found Dr. Preston was hired to testify, not to treat.&nbsp; They also argued that Ms. Dameron&rsquo;s disclosure of Dr. Preston was a judicial admission, but the court disagreed arguing Plaintiff was permitted to withdraw Dr. Preston as a witness and/or supplement her discovery answers.&nbsp;</p> <p>Defendants further argued that because Dr. Preston was initially disclosed as a testifying expert, Plaintiff waived any privilege to Dr. Preston&rsquo;s report.&nbsp; However, the court stated that the rules only required Plaintiff to turn over a report <i>if</i> Dr. Preston was going to testify at trial. &nbsp;&nbsp;Defendants also argued that they were entitled to the report because it contained relevant facts, but the court disagreed and found that Dr. Preston&rsquo;s report was protected by the consultant&rsquo;s work product privilege only subject to discovery upon showing of exceptional circumstances.</p> <p>Finally, Defendants argued that Plaintiff was attempting to subvert the legal process.&nbsp; The timeline of these events does appear to be highly suspicious in that the motion to redesignate Dr. Preston was filed after he presumably drafted his report and almost two months after disclosure.&nbsp; One may assume that Dr. Preston&rsquo;s report was unfavorable to Plaintiff and, consequently, prompted her to withdraw Dr. Preston as an expert.&nbsp; Nevertheless, the court found that Defendants failed to identify any evidence to support their claim of Plaintiff&rsquo;s subversion of the legal process.</p> <p>The Appellate Court ultimately held that where a previously disclosed testifying expert witness has been timely withdrawn prior to disclosing his or her report in discovery, the expert may be redesignated a Rule 201(b)(3) consultant and entitled to the consultant&rsquo;s privilege against disclosure, absent exceptional circumstances.&nbsp; The court found no exceptional circumstances in this case.</p> <p>The implications of this case are significant, and this is probably not the end of the story, as this issue will likely be relitigated in the future should parties employ this as a tactical litigation strategy.</p> Supreme Court Confirms State's Biometric Information Privacy Act Has Real Teeth Feb 2019Illinois Law Blog<p>In this age of face recognition, digital fingerprints, and iris scans, what allegations and proof of damages is sufficient to state a claim for the mishandling of biometric identifiers? Must the aggrieved party have suffered any actual damages beyond the improper collection, retention or disclosure of his biometric identifiers themselves?&nbsp;</p> <p>In <i>Stacy Rosenbach, as Mother and Next Friend of Alexander Rosenbach v. Six Flags Entertainment Corporation</i>, 2019 IL 123186, the plaintiff alleged violations under Illinois&rsquo; Biometric Information Privacy Act (740 ILCS 14/1 <i>et seq</i>. (2016)).&nbsp;The Act imposes restrictions on how private entities collect, retain, disclose, and destroy biometric identifiers, such as retina or iris scans, fingerprints, voiceprints, scans of hand or face geometry, or other biometric information.&nbsp;Under the Act, any person &ldquo;aggrieved&rdquo; by a violation of its provisions &ldquo;shall have a right of action&hellip; against an offending party&rdquo; and &ldquo;may recover for such violation&rdquo; the greater of liquidated or actual damages, reasonable attorney fees and costs, and any other relief, including an injunction, that the court deems appropriate.&nbsp;The issue in this particular case was whether a person qualifies as an &ldquo;aggrieved&rdquo; person and may seek liquidated damages and injunctive relief pursuant to the Act if he has not alleged some actual injury or adverse effect, beyond violation of his rights under the statute.&nbsp;The First District Court of Appeals answered this question in the negative, holding a plaintiff who alleges only a technical violation of the statute without alleging some injury or adverse effect is not an aggrieved person under the Act.</p> <p>Since at least 2014 defendant Six Flags has used a fingerprinting process when issuing season passes to its Great America theme park.&nbsp;Plaintiff alleged the system scans pass holders&rsquo; fingerprints; collects, records and stores biometric identifiers and information gleaned from the fingerprints; and then stores that data in order to quickly verify customer identities upon subsequent visits to the park.&nbsp;</p> <p>Plaintiff&rsquo;s 14 year old son was to visit the park on a school field trip in May or June 2014, and plaintiff purchased a season pass for him online.&nbsp;When he arrived at the park with his class, he had to complete the season pass sign-up process, which included scanning his thumb into defendant&rsquo;s biometric data capture system.&nbsp;The complaint alleged that plaintiff was not informed in advance that the minor&rsquo;s fingerprints were to be used as part of defendant&rsquo;s season pass system and that neither the minor son nor his mother were informed in writing of the purpose or length of term for which his fingerprint had been collected.&nbsp;Neither of them signed any release or written consent for the collection, storage, use, dissemination, disclosure, or trade of the fingerprint or the associated biometric information.&nbsp;The complaint also alleged that, although the minor child has not visited the park since that school field trip, defendant has retained his biometric identifiers and information and has not disclosed what was done with the information or how long it will be kept.&nbsp;</p> <p>Plaintiff&rsquo;s complaint sought redress for the minor child, individually and on behalf of all other similarly situated persons under the Act.&nbsp;The defendant moved to dismiss on the basis that the plaintiff had suffered no actual or threatened injury and something more than just a violation of the Act must be alleged to state a claim.&nbsp;The Appellate Court for the First District agreed with defendant and held that while the injury or adverse effect alleged need not be pecuniary, it must be something more than a technical violation of the Act.&nbsp;2017 IL App (2d) 170317.&nbsp;</p> <p>The Illinois Supreme Court reversed upon <i>de novo</i> review.&nbsp;Basic principles of statutory construction dictate that if the legislature had wanted to impose a requirement limiting a plaintiff&rsquo;s right to bring a cause of action to circumstances where he or she had sustained some actual damages, beyond violation of the rights conferred by the statute, it could have made its intention clear.&nbsp;The Act contains no such requirement.&nbsp;It simply provides that any person aggrieved by a violation of the Act shall have a right of action.&nbsp;While the Act does not define &ldquo;aggrieved&rdquo;, the state Supreme Court more than a century ago held that to be aggrieved simply &ldquo;means having a substantial grievance; a denial of some personal or property right.&rdquo;&nbsp;<i>Glos v. People</i>, 259 Ill. 332, 340 (1913).&nbsp;As held in <i>Glos</i>, &ldquo;[a] person is prejudiced or aggrieved, in the legal sense, when a legal right is invaded by the act complained of or his pecuniary interest is directly affected by the decree or judgment.&rdquo;&nbsp;<i>Id</i>.&nbsp;This is consistent, the court noted, with the dictionary definition of &ldquo;aggrieved&rdquo;, which includes definitions such as &ldquo;suffering from an infringement or denial of legal rights&rdquo; or &ldquo;having legal rights that are adversely affected.&rdquo;</p> <p>The Court concluded that when a private entity fails to comply with one of the Act&rsquo;s requirements, that violation alone constitutes an invasion, impairment, or denial of the statutory rights of any person or customer whose biometric identifier or biometric information is subject to the breach.&nbsp;Such person or customer is clearly &ldquo;aggrieved&rdquo; within the meaning of the Act and is entitled to seek recovery under that provision with no need to plead or prove additional consequences.&nbsp;A contrary result would misapprehend the nature of the harm the legislature is attempting to mitigate through this legislation.&nbsp;&ldquo;The Act vests in individuals and customers the right to control their biometric information by requiring notice before collection and giving them the power to say no by withholding consent.&rdquo;&nbsp;When an entity violates the statutory procedures, such as what the defendant is alleged to have done here, the individual loses his right to maintain his biometric privacy, which is the precise harm the legislature sought to prevent by passing the Act in the first instance.&nbsp;&ldquo;The injury is real and significant.&rdquo;</p> <p>This opinion creates a strong incentive for private entities, which might include not only theme parks but financial institutions, recreational facilities or health clubs, employers, etc., to conform to the law and prevent problems before they occur and cannot be undone.&nbsp; &nbsp;&nbsp;</p>