BSCR Firm News/Blogs Feed Feb 2021 00:00:00 -0800firmwise Illinois Businesses Face a Wave of Lawsuits Following the COVID-19 Pandemic? Feb 2021Illinois Law Blog<p>To say Illinois has been significantly affected by the COVID-19 pandemic would be a dramatic understatement. <a href="">According to the CDC</a>, as of February 11, 2021, Illinois ranks fourth among all states for the number of COVID-19 cases and seventh for the number of deaths caused by COVID-19.&nbsp;Given the number of cases and deaths in the state, Illinois businesses should consider whether there will be a corresponding wave of lawsuits related to the pandemic and, if so, whether the businesses are prepared to defend against such lawsuits. &nbsp;As of this writing, an estimated 365 lawsuits related to COVID-19 have been filed in Illinois.&nbsp;The lawsuits raise a variety of legal theories, including insurance coverage, employment law, commercial disputes, and torts, among others.</p> <p><strong><u>Potential Tort Claims</u></strong></p> <p>As to tort claims, businesses may face negligence lawsuits premised on theories such as negligently exposing others to COVID-19, failing to take proper measures to protect others from exposure to COVID-19, failing to implement proper screening protocols related to COVID-19, failing to adequately warn of the potential for exposure to COVID-19, or violating a public health statute or ordinance. As a potential preview of future lawsuits, in April 2020, <a href="">a decedent&rsquo;s estate filed suit against his former employer in Cook County, alleging that the employer failed to follow CDC and Department of Labor guidelines regarding COVID-19 and maintaining a safe workplace</a>.&nbsp;Similarly, on November 20, 2020, <a href="">a decedent&rsquo; daughter filed suit against a nursing home located in Bloomington, Illinois, alleging that the nursing home failed to provide proper care to her mother, who died of complications from COVID-19</a>.&nbsp;In the lawsuit, the plaintiff claims that the nursing home failed to implement appropriate infection control and prevention measures related to the virus.</p> <p>In another tort action, <a href="">five McDonald&rsquo;s employees and four of their relatives filed suit against the company in Cook County, alleging the company failed to adopt proper safety protocols to protect against COVID-19</a>. &nbsp;Interestingly, the plaintiffs in that case avoided dismissal under the Illinois Workers&rsquo; Compensation Act&rsquo;s exclusivity provision, which generally prohibits employees from filing civil suits against employers for employment-related injuries, by alleging that McDonald&rsquo;s violated public nuisance laws.&nbsp;The judge, in granting the plaintiffs&rsquo; request for a preliminary injunction, ruled that a failure to have employees social distance and wear masks could spread COVID-19, which might constitute a public nuisance.</p> <p>Another type of claim already filed against Illinois businesses related to COVID-19 arises from what is sometimes referred to as &ldquo;secondary&rdquo; or &ldquo;take-home&rdquo; exposure to the virus.&nbsp;This theory of liability emerged from asbestos litigation.&nbsp;Specifically, a common claim made in asbestos litigation is that a plaintiff or decedent was exposed to asbestos fibers through contact with the work clothes of a relative, who was directly exposed to those asbestos fibers through his or her employment.&nbsp;<i>See</i>, <i>e.g.</i>, <i>Simpkins v. CSX Transp., Inc.</i>, 2012 IL 110662.&nbsp;In the context of COVID-19, <a href="">two lawsuits based on this theory already have been filed in Illinois</a>. In one case, the plaintiff alleged that her mother died of COVID-19 after her father contracted the virus through his employment at a meat processing plant.&nbsp;In the other case, the plaintiff alleged that she contracted COVID-19 from her husband, who she alleged contracted the virus through his employment with an electrical components manufacturer.</p> <p><strong><u>Potential Statutory-Based Claims</u></strong></p> <p>A related claim may involve negligence based upon a violation of a statute or ordinance.&nbsp;Under Illinois law, a plaintiff can assert such a claim if the statute or ordinance violated was designed to provide a standard of conduct for the safety of a particular person or class of persons and the injury suffered was of the type the statute or ordinance intended to protect against.&nbsp;<i>See</i>, <i>Ney v. Yellow Cab Co.</i>, 2 Ill.2d 74 (Ill. 1954); <i>Bitner v. Lester B. Knight &amp; Associates, Inc.</i>, 16 Ill. App. 3d 857 (3rd Dist. 1974).&nbsp;A potential claim under this theory might be that the Illinois Emergency Management Agency Act qualifies as such a statute and, therefore, violations of it, or any executive orders or regulations issued pursuant to the Act, constitute negligence. &nbsp;According to the Act, one of its purposes is to &ldquo;preserve the lives and property of the people of [Illinois] and protect the public&hellip;health.&rdquo; 20 ILCS 3305/2.&nbsp;The Act further indicates that to fulfill this purpose, &ldquo;it is found and declared to be necessary&hellip;[t]o confer upon the Governor&hellip;the powers provided herein&rdquo;, which includes the power to issue executive orders.&nbsp;20 ILCS 3305/2(a)(2).&nbsp;Accordingly, plaintiffs may argue that the Governor&rsquo;s executive orders issued in response to the pandemic and related Illinois Department of Health regulations constitute laws designed to protect the safety of Illinois residents against COVID-19 and that violations of such orders or regulations amount to negligence. &nbsp;</p> <p><strong><u>Potential Workers&rsquo; Compensation and Employee Claims</u></strong></p> <p>Illinois businesses also should anticipate workers&rsquo; compensation claims related to COVID-19. Perhaps in anticipation of an increase in occupational exposure to COVID-19, on June 5, 2020, Illinois enacted House Bill 2455, which creates a rebuttable presumption that where a &ldquo;front-line worker&rdquo; is exposed to and contracts COVID-19, the illness arises out of and in the course of employment and is casually related to the hazards or exposures of employment. &nbsp;Front-line workers include individuals that are employed by essential businesses, as defined by <a href="">executive order 2020-10</a>, so long as the employees are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees. &nbsp;Employers can rebut this presumption by establishing: 1) the employee was working from home and/or on leave for a period of 14 or more consecutive days immediately prior to their illness; or 2) the employer was engaging in and applying to the fullest extent possible industry-specific workplace sanitation, social distancing, and health and safety practices based upon updated guidelines from the CDC or Illinois Department of Public Health, or was using a combination of various administrative controls, engineering controls, or personal protective equipment to reduce the transmission of COVID-19 to all employees for at least 14 days before the employee became ill.</p> <p>As with tort claims, employers also should expect and be proactive to avoid employment law claims related to COVID-19.&nbsp;Already, one plaintiff has filed an employment law claim in Illinois related to the pandemic.&nbsp;In <i>Watts v. Estes Express</i>, No. 1:20-cv-07046 (N.D. Ill. 2020), the plaintiff alleges that he was terminated for refusing to continue working after he learned that two colleagues who had recently been on-site were infected with COVID-19.&nbsp;According to the plaintiff, his employer instructed him to continue working despite the plaintiff&rsquo;s purported safety concerns.&nbsp;Given the number of COVID-19 diagnoses in Illinois, and with the Governor continuing to ease restrictions on business operations, employers may very well face similar situations in the immediate future.&nbsp;Thus, employers should be familiar with laws related to refusal to work, including <a href="">OSHA&rsquo;s right to refuse standard</a> and the <a href="">National Labor Relations Act&rsquo;s protection of &ldquo;Protected Concerted Activities</a>.&rdquo;&nbsp;</p> <p><strong><u>Potential Vaccine-Related Liability and Claims</u></strong></p> <p>In addition to exposure-related claims, businesses also may face claims related to COVID-19 vaccines. &nbsp;<a href="">While the EEOC recently indicated that mandatory COVID-19 vaccines do not constitute medical examinations under the Americans With Disabilities Act</a> (&ldquo;ADA&rdquo;), employers should understand their legal obligations if employees seek an exemption to a mandatory vaccination policy based upon a disability or a religious belief.&nbsp;If the request is based on a disability, the employer should be prepared to engage in the &ldquo;interactive process&rdquo; with the employee and, possibly, show that the policy is job-related, that the policy is a business necessity, and that the risk posed by not requiring the vaccine cannot be eliminated or reduced by a reasonable accommodation.&nbsp;If the request is based on a religious belief, the employer should understand what is required under Title VII of the Civil Rights Act.&nbsp;Generally, if an employee requests a reasonable accommodation based on a sincerely held religious belief, the employer must provide the accommodation unless doing so would pose an undue hardship.&nbsp;&nbsp;&nbsp;</p> <p>Similarly, if employers implement mandatory vaccination programs, they will need to consider where the vaccines will be administered.&nbsp;If the vaccines are administered by the employer, on the employer&rsquo;s property, or by a third-party pursuant to a contract with the employer, the pre-screening questions asked before the vaccine is administered likely constitute a disability-related inquiry as defined by the ADA.&nbsp;Additionally, the pre-screening questions may implicate the Genetic Information Nondiscrimination Act, which prohibits employers from asking employees about the medical history of their family members.&nbsp;29 C.F.R. &sect; 1635.3(c).&nbsp;Most likely, the safest option for employers is to have the vaccines administered offsite, by an unaffiliated entity, and to merely ask for proof of vaccination from employees. &nbsp;&nbsp;&nbsp;</p> <p>For employers that plan to encourage, rather than require, COVID-19 vaccines, employers should be familiar with the legal requirements governing wellness program incentives.&nbsp;In January 2021, <a href="">the EEOC forwarded to the Federal Register Notices of Proposed Rulemakings on wellness programs</a>.&nbsp;Under the proposed rules, employers would be allowed to offer no more than de minimis incentives to employees to encourage participation in wellness programs, with the exception of health-contingent wellness programs, which, under HIPAA, allows an employer to offer up to 30 percent of the total cost of health insurance as an incentive.</p> <p>Another potential legal issue related to COVID-19 vaccines relates to whether businesses have a duty to require their employees to be vaccinated.&nbsp;For example, if a customer or co-worker contracts COVID-19 from a business&rsquo; unvaccinated employee, can the business be held liable?&nbsp;In other words, do businesses owe a duty of care to protect employees and customers from COVID-19 by requiring employees to be vaccinated?&nbsp;While the answer is unsettled at this point, businesses should be mindful of <a href="">OHSA&rsquo;s General Duty Clause</a>, which requires employers to furnish employees a place of employment that is free from recognized hazards that cause or are likely to cause death or serious physical harm. &nbsp;&nbsp;&nbsp;</p> <p>By contrast, if businesses require employees to be vaccinated, they should consider whether they could be liable if an employee suffers an adverse reaction to the vaccine.&nbsp;This situation may implicate workers&rsquo; compensation coverage.&nbsp;The Illinois Workers&rsquo; Compensation Act contains a provision governing employer liability for injuries arising from vaccines.&nbsp;<i>See</i>, 820 ILCS 305/11.&nbsp;It is unclear, however, whether this provision applies to COVID-19 vaccines, but employers certainly should be aware of it and the fact that it could create liability under the Act for employee injuries arising from the vaccine.&nbsp;</p> <p>Further adding to the uncertainty over potential vaccine liability is the extent to which the Public Readiness and Emergency Preparedness Act (&ldquo;Prep Act&rdquo;) may provide immunity from liability for vaccine-related injuries. &nbsp;The Prep Act limits legal liability for losses arising from the administration of medical countermeasures, such as vaccines.&nbsp;Generally, to qualify for immunity under the Act, an entity must show that it is a &ldquo;covered person,&rdquo; facing a claim that qualifies as a &ldquo;loss,&rdquo; the loss has a &ldquo;causal relationship&rdquo; with the administration or use of a covered countermeasure, and the medical product at issue must qualify as a &ldquo;covered countermeasure.&rdquo;&nbsp;<a href="">Prior HHS Secretary Alex Azar declared COVID-19 to be a public health emergency warranting liability protections under the Act</a>.&nbsp;Secretary Azar also indicated that immunity under the Act should extent to liability claims relating to the management and operation of a countermeasure distribution program or site, such as a slip-and-fall injury at a vaccine site.&nbsp;Thus, if faced with a claim arising from a COVID-19 vaccine, employers should consider asserting a defense based on immunity under the Prep Act. &nbsp;</p> <p><u><strong>Conclusion</strong></u></p> <p>Ultimately, the legal landscape surrounding COVID-19 is likely going to continue evolving.&nbsp;While there are many legal issues related to the pandemic for which there are currently no clear answers, employers and businesses should, to the extent possible, stay apprised of developments and guidance by monitoring for new announcements from government agencies such as the EEOC, CDC, OSHA, Department of Labor, and similar state organizations.&nbsp;Moreover, given the rapidly changing legal landscape and numerous bases for potential liability, when determining whether to adopt policies or programs related to the pandemic, employers and businesses should strongly consider consulting legal counsel.&nbsp;</p> Illinois' Governor signs HB3360 it would impose a 9% pre-judgment interest. Jan 2021Illinois Law Blog<p>On January 13, 2021, less than 48 hours after amendments to HB 3360 were introduced, the amended bill passed and is ready to go to Governor Prizker&rsquo;s desk to be signed into law. If Governor Pritzker signs HB 3360, as amended, it would impose a &ldquo;litigation penalty&rdquo; on civil defendants by taxing them with a 9% per annum interest on personal injury and wrongful death cases.&nbsp;Under current Illinois law, plaintiffs are not entitled to pre-judgment interest in personal injury cases.&nbsp;If this bill is signed into law personal injury and wrongful death cases in Illinois would be subject to 9% per annum pre-judgment interest accruing from the date the defendant has notice of the injury from the incident itself or a written notice. Notably, the bill would impose prejudgment interest on past injuries and previously filed actions to run from the later of the effective date of the bill or notice of injury to the defendant.&nbsp;&nbsp;</p> <p>What constitutes &ldquo;notice of the injury&rdquo; is not defined and will likely cause debate.&nbsp;This is in contrast to the very few states that allow pre-judgment interest on personal injury judgments, some of which specify that accrual does not begin until formal written notice of a claim is tendered or until a complaint is filed.&nbsp;Further, other states with pre-judgment interest also do not calculate in future damages unlike this bill.&nbsp;&nbsp;</p> <p>This bill would impose interest on damages, such as plaintiff&rsquo;s medical care costs, that may not have been calculated in advance and liability is uncertain. For example, there are many situations, in litigation, when a defendant has notice of an injury but the medical treatment has not been completed and/or is ongoing so the damages cannot be determined.&nbsp;Further, a defendant may have notice of an injury while liability is unknown.&nbsp;This kind of &ldquo;litigation penalty&rdquo; would force the hand of many defendants to settle in order to avoid the tax on their right to jury trial.&nbsp;</p> <p>If HB 3360 is enacted, defendants should be mindful of the pre-judgment interest accrual that results from delays in litigation caused by either side or the court, which during the Pandemic, have essentially closed down our court system.&nbsp;Defendants should also be ready to litigate when &ldquo;notice of an injury&rdquo; occurred, as it is unclear from the bill when and how that is memorialized.</p> <p>HB 3360 will amend 735 ILCS 5/2-1303 as follows:&nbsp;</p> <p style="margin-left: 40px;">(c) In all actions brought to recover damages for personal injury or wrongful death resulting from or occasioned by the conduct of any other person or entity, whether by negligence, willful and wanton misconduct, intentional conduct, or strict liability of the other person or entity, the plaintiff shall recover prejudgment interest on all damages set forth in the judgment. Prejudgment interest shall begin to accrue on the date the defendant has notice of the injury from the incident itself or a written notice. In entering judgment for the plaintiff in the action, the court shall add to the amount of the judgment interest on the amount calculated at the rate of 9% per annum.&nbsp;</p> <p>It is unclear when Governor Prizker plans to act on the legislation.&nbsp;If you have questions about how this development might impact you or your organization, please contact the author or Baker Sterchi Cowden &amp; Rice.</p> of St. Louis and Multiple Illinois Counties Again Distinguish Themselves as "Judicial Hellholes" Jan 2021Illinois Law Blog<p>The 2020/2021 &ldquo;Judicial Hellholes Report&rdquo; from the American Tort Reform Foundation has arrived and certain Missouri and Illinois jurisdictions again find themselves on this infamous list. The City of St. Louis comes in at #7 on the list while the trio of Cook, Madison, and St. Clair Counties in Illinois wins the #8 spot. The silver lining? Both of these rankings are down from the previous slots of #5 and #7 held by these counties, respectively, in the previous Judicial Hellholes Report.</p> <p>Since 2002, the American Tort Reform Foundation has identified and documented places &ldquo;where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.&rdquo; The stated goal of the Foundation&rsquo;s program is &ldquo;to shine a light on imbalances in the courts and thereby encourage positive changes by the judges themselves and, when needed, through legislative action or popular referenda.&rdquo;</p> <p>Coming in at #7 on the list, the City of St. Louis, Missouri, is singled out as being notorious for blatant forum shopping and excessive punitive damage awards, helping to earn Missouri the &ldquo;Show-Me-Your-Lawsuit&rdquo; nickname. The report also asserts that the court fails to ensure that cases are guided by sound science, citing instances where Plaintiff&rsquo;s experts, whose testimony has been determined to not be based in science by other state court, have been permitted to testify in City of St. Louis courts. The report does see some hope for the City and the State of Missouri in general with the 2020 legislative enactment of several reforms intended to curb unreliable expert testimony and reduce litigation tourism, but cautions that true future success is contingent on the City of St. Louis Court&rsquo;s compliance with the new statutes. The report notes that &ldquo;some St. Louis judges have a history of ignoring both state law and U.S. Supreme Court precedent with regard to expert evidence standards, personal jurisdiction and venue, and damage awards.&rdquo;</p> <p>Number 8 on the list is the grouping of Cook, Madison and St. Clair Counties in Illinois. The report singles out these three counties as continuing to be preferred jurisdictions for plaintiffs&rsquo; lawyers &ldquo;thanks to no-injury lawsuits, plaintiff-friendly rulings in asbestos litigation, and the promise of a liability-expanding legislative agenda each and every year.&rdquo; The report calls Illinois ground zero for no-injury lawsuits, thanks in large part to the Biometric Information Privacy Act and the numerous expansive judicial interpretations of that law. The report finds some encouraging news in the Illinois Supreme Court&rsquo;s June 2020 ruling in <i>Rios v. Bayer Corp</i>., where the court dismissed the claims of out-of-state plaintiffs for lack of jurisdiction because Bayer is not located in Illinois and does limited business there, the product was not manufactured in Illinois, and the plaintiffs experienced their injuries outside of Illinois.<br /> <br /> The report also gives a dishonorable mention to the Missouri Court of Appeal thanks to a recent opinion addressing Section 537.065. This section permits a defendant to allow a plaintiff to obtain a judgment against it in court so long as the plaintiff agrees to only seek to collect the award from the defendant&rsquo;s insurer. The Missouri legislature amended Section 537.065 in 2017 to require that parties give notice to the insurer that they have entered such an agreement so that the insurer can intervene and protect its interests, if needed. The report interprets a Missouri appellate court decision from 2020 as limiting an insurer&rsquo;s ability to contest the policyholder&rsquo;s liability or the plaintiff&rsquo;s damages when it intervenes after the entry of arbitration award.</p> While there are some potential future bright spots for these Missouri and Illinois jurisdictions and their individual rankings are moving in the right direction, there seems to be a long way to go before we no longer see these local courts on the &ldquo;Judicial Hellholes&rdquo; list. Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury Verdict Oct 2020Illinois Law Blog<p><i>Florez v. Northshore Univ. Healthsystem</i>, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560</p> <p>The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child&rsquo;s autism diagnosis at trial. As a result of this trial court error, the appellate court overturned a $50 million jury verdict involving the child&rsquo;s alleged brain injury sustained at birth.</p> <p>Plaintiff alleged the defendant failed to diagnose and treat the child&rsquo;s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff&rsquo;s counsel argued throughout the case and at trial that the child&rsquo;s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child&rsquo;s condition with no causal connection to the birth treatment.</p> <p>Fifty-six days before trial, the plaintiff supplemented his answers to written discovery with a copy of a behavioral report and psychological evaluation from his expert neuropsychologist, who found that the plaintiff met the full diagnostic criteria for Autism Spectrum Disorder. Upon receiving the neuropsychologist&rsquo;s report, the defendant&rsquo;s experts found that the plaintiff&rsquo;s autism diagnosis <i>supported </i>their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.</p> <p>Pursuant to Illinois Rule 218(c), the defendant filed supplemental disclosures on this evidence and moved to disclose the neuropsychologist as a witness at trial. In response, the plaintiff moved to strike the supplemental disclosures and witness arguing that the defendant was improperly attempting to inject a new issue into the case. The court granted the plaintiff&rsquo;s motion to strike and found the defendant&rsquo;s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.</p> <p>However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage &ldquo;tactical gamesmanship&rdquo; because the plaintiff filed his expert&rsquo;s evaluation less than 60 days before the trial. Essentially, the defendant could not have met the deadline even if it responded the very day it received the report.</p> <p>Though the plaintiff&rsquo;s experts opined that the defendant&rsquo;s negligence led to oxygen deprivation and plaintiff&rsquo;s injuries and cognitive deficits, the defendant&rsquo;s experts opined that plaintiff&rsquo;s injuries were chronic. For example, the defendant&rsquo;s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.</p> <p>Accordingly, the appellate court held that barring evidence of an autism diagnosis was an abuse of discretion because the evidence was probative of the causation issue, defendant&rsquo;s experts could not use it to support their conclusions, and it was not available for the jury to consider in resolving conflicting expert opinions.</p> <p>Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff&rsquo;s future medical needs, school requirements, and employment prospects.</p> <p>Ultimately, this case demonstrates how discovery rules should be applied on a case by case basis, as a mechanical application of the rules may not always yield the most just result.&nbsp;</p> Sees a Flurry of Illinois Biometric Act Rulings Aug 2020Illinois Law Blog<p>As previously discussed <a href=";an=109595&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, <a href=";an=109297&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, and <a href=";an=106833&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>, 2020 has proven to be a consequential year for biometric privacy litigation in Illinois. In perhaps the most active month of the year thus far, seven Illinois District Court Judges issued rulings related to the Illinois Biometric Information Privacy Act (&ldquo;BIPA&rdquo;) in August.&nbsp;The rulings address a variety of issues implicated by BIPA, including subject matter jurisdiction, waiver, the statute of limitations for filing a BIPA claim, personal jurisdiction, and the constitutionality of BIPA.&nbsp;</p> <p>In <i>Frisby v. Sky Chefs, Inc.</i>, Judge Matthew Kennelly of the District Court for the Northern District of Illinois ruled that the court lacked subject matter jurisdiction over the plaintiff&rsquo;s BIPA claims.&nbsp;In that case, the plaintiff alleged that Sky Chefs, an airline catering business and the plaintiff&rsquo;s former employer, violated BIPA by collecting his fingerprints without first issuing required disclosures, failing to obtain written consent to acquire the prints, and failing to publish protocols for the retention and destruction of employee fingerprints.&nbsp;</p> <p>In response, Sky Chefs moved to dismiss, arguing that the court lacked subject matter jurisdiction.&nbsp;Specifically, Sky Chefs contended that the plaintiff&rsquo;s claim was preempted by the Railway Labor Act (&ldquo;RLA&rdquo;).&nbsp;The RLA applies to &ldquo;common carrier[s] by air&rdquo; and requires that any dispute regarding the interpretation or application of a collective bargaining agreement must be adjudicated by an adjustment board, not a court.&nbsp;Relying on precedent from the Seventh Circuit Court of Appeals, Judge Kennelly explained that disputes regarding how a common air carrier acquires and uses employee fingerprint information falls within the scope of the RLA.&nbsp;The parties, however, disputed whether Sky Chefs constituted a common air carrier.&nbsp;The court ultimately determined that Sky Chefs&rsquo; business activities satisfied the definition of a common air carrier because catering for in-flight food service has consistently been treated as a function traditionally performed by air carriers.&nbsp;In 1988, the National Mediation Board made such a determination specific to Sky Chefs.&nbsp;The court concluded that the plaintiff presented no evidence suggesting that Sky Chefs had changed its business since the 1988 determination.&nbsp;Thus, the court held that the plaintiff&rsquo;s BIPA claim was preempted by the RLA and that it lacked subject matter jurisdiction.</p> <p>On August 7th, the Northern District Court addressed the statute of limitations for BIPA claims.&nbsp;In <i>Cothron v. White Castle Sys.</i>, the plaintiff, a White Castle employee, alleged that her employer violated BIPA through its practice of collecting employees&rsquo; fingerprints.&nbsp;White Castle began collecting the plaintiff&rsquo;s fingerprints in 2007.&nbsp;Although BIPA was passed in 2008, White Castle continued collecting the plaintiff&rsquo;s fingerprints but did not provide the plaintiff with the disclosures, or obtain her consent, as required by BIPA.&nbsp;White Castle did not provide her with the necessary disclosures or obtain her consent until October 2018.&nbsp;The plaintiff filed suit against White Castle in December 2018.</p> <p>White Castle argued that the plaintiff&rsquo;s claim was untimely.&nbsp;According to White Castle, the plaintiff&rsquo;s claim accrued in 2008 when BIPA was enacted, as White Castle was allegedly in violation of the Act at the time of its passage.&nbsp;By contrast, the plaintiff argued that at least a portion of her claim did not arise until 2018 because White Castle did not comply with BIPA until that time.&nbsp;The plaintiff&rsquo;s theory was premised on the &ldquo;continuing tort&rdquo; doctrine, which holds that for a tort involving a continuous or repeated injury, the statute of limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.&nbsp;The plaintiff claimed that the statute of limitations did not begin to run until White Castle&rsquo;s final violation under BIPA (<i>i.e.</i>, the last time White Castle collected and disseminated her biometric information without having obtained the plaintiff&rsquo;s consent or giving her the notice required by the Act).&nbsp;</p> <p>The court rejected the plaintiff&rsquo;s argument regarding the continuing tort doctrine.&nbsp;The court reasoned that the continuing tort doctrine applies to claims that arise from a series of acts collectively, while it does not apply to a series of discrete acts, even if those acts form an overall pattern of wrongdoing.&nbsp;As to BIPA, the Illinois Supreme Court has explained that the Act imposes obligations that are violated through discrete individual acts, not accumulated courses of conduct.&nbsp;Stated differently, Illinois courts treat a single violation of BIPA as a concrete injury giving the aggrieved party the right to file suit.</p> <p>The court next analyzed when the defendant&rsquo;s alleged violations occurred.&nbsp;According to the court, a party violates BIPA each time it collects a person&rsquo;s biometric information without obtaining consent or providing the required disclosure.&nbsp;The court explained that this is true the first time an entity collects a person&rsquo;s fingerprint and with each subsequent scan or collection.&nbsp;Thus, the court concluded that the plaintiff alleged multiple violations of BIPA; namely, each time White Castle collected her fingerprint information after the enactment of BIPA and before it provided the required disclosures and obtained her consent in October 2018.&nbsp;Importantly, however, the court reserved ruling on what constitutes the applicable statute of limitations for a BIPA claim because the defendant requested additional time to brief the issue.</p> <p>Also on August 7th, Judge Robert Dow of the Northern District Court denied a motion to dismiss a BIPA suit.&nbsp;In <i>Lenoir v. Little Caesar Enters.</i>, the plaintiffs filed suit against their former employer, Little Caesars, alleging that it violated BIPA through a fingerprint collection system.&nbsp;The defendant argued that one of the plaintiffs waived her right to file suit because six months after she began working for Little Caesars, she allegedly consented to the &ldquo;past, present and future collection, use, and storage of [her] fingerprint data&rdquo; by registering her fingerprint scan in a program called Caesar Vision.&nbsp;The court rejected Little Caesars&rsquo; argument, noting that the plaintiff&rsquo;s consent made no mention of BIPA or any other right to sue, nor did it acknowledge that Little Caesars had already collected the plaintiff&rsquo;s biometric information.&nbsp;Since BIPA requires an entity to obtain consent <i>before </i>collecting a person&rsquo;s biometric data, the court did not believe it was appropriate to dismiss the case based on the plaintiff&rsquo;s generalized consent to Little Caesars&rsquo; past collection of her biometric information.&nbsp;Finally, consistent with prior opinions, the court rejected Little Caesars&rsquo; argument that the plaintiffs&rsquo; BIPA claims were barred by the exclusive remedy provision of the Illinois Workers&rsquo; Compensation Act because an injury under BIPA is not considered a &ldquo;compensable injury&rdquo; under the Workers&rsquo; Compensation Act.</p> <p>On August 12th, the Northern District Court examined whether it could exercise personal jurisdiction over a defendant in a BIPA suit.&nbsp;In <i>Mutnick v. Clearview AI</i>, the plaintiffs filed suit against Clearview and the two founders of Clearview.&nbsp;The defendants argued that they were not subject to personal jurisdiction because they never targeted businesses in Illinois or travelled to Illinois.&nbsp;In determining that the defendants were subject to personal jurisdiction, the court first noted that whether or not the defendants had ever travelled to Illinois was largely irrelevant, as it &ldquo;is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines.&rdquo;&nbsp;</p> <p>The court also found unavailing Clearview&rsquo;s argument that it did not exclusively target Illinois because it collected the biometric information of millions of other Americans from different states.&nbsp;According to the court, it was not necessary that Clearview exclusively target Illinois residents.&nbsp;Instead, the defendants must have maintained contacts with Illinois that gave rise or directly related to the cause of action.&nbsp;The court determined that the defendants maintained such contacts by entering into hundreds of agreements with Illinois entities allowing defendants to collect the biometric information of Illinois citizens, marketing its biometric collection technology to the Illinois Secretary of State, and selling licenses for the use of the biometric information to entities located in Illinois.&nbsp;&nbsp;</p> <p>Finally, on August 19th, the District Court for the Southern District of Illinois addressed the constitutionality of BIPA.&nbsp;Specifically, in <i>Stauffer v. Innovative Heights Fairview Heights, LLC</i>, one of the defendants argued that BIPA is unconstitutional because it amounts to &ldquo;special legislation&rdquo; in that it imposes strict compliance requirements on some employers, but then &ldquo;arbitrarily&rdquo; exempts the financial industry and state and local government contractors.&nbsp;The Illinois Constitution prohibits a &ldquo;special or local law&rdquo; when a general law is or can be made applicable.&nbsp;This provision prohibits the Illinois General Assembly from conferring a special benefit or privilege upon one person or group and excluding others that are similarly situated.&nbsp;</p> <p>Regarding BIPA&rsquo;s exemption for financial institutions, the court explained that the exemption applies only to those institutions subject to Title V of the Gram-Leach Bliley Act of 1999.&nbsp;Thus, the exemption does not apply to <i>all </i>financial institutions.&nbsp;Moreover, the financial institutions that are exempt from BIPA are subject to similarly stringent reporting requirements under federal law.&nbsp;The court also noted failing to exempt those institutions might have resulted in federal preemption of BIPA.&nbsp;Accordingly, the court did not find the financial institution distinction to be &ldquo;artificially narrow&rdquo; such that it amounted to unconstitutional special legislation.&nbsp;</p> <p>As to the defendant&rsquo;s argument that the BIPA exemption for government employers, the court accepted the plaintiff&rsquo;s argument that BIPA was enacted to regulate the private sector, not government entities.&nbsp;Additionally, the court found it important that in the nearly 12 years since BIPA&rsquo;s enactment, no court has found the Act unconstitutional.&nbsp;For those reasons, the court determined that the plaintiff alleged sufficient facts to conclude that BIPA is not special legislation and, therefore, not unconstitutional.</p> <p>With the increase in BIPA lawsuit filings since early 2019, we should expect courts to continue providing guidance on the scope of BIPA, the merits of both plaintiff and defense theories in these cases, and when dismissal or summary judgment are appropriate in these cases.&nbsp;As always, we at Baker Sterchi will continue monitoring for developments related to BIPA and how those developments might impact our clients.</p>'s Be Specific About Personal Jurisdiction: Missouri and Illinois Address Bristol-Myers Squibb v. Superior Court of California Jul 2020Illinois Law Blog<p>The Supreme Courts of Missouri and Illinois have recently addressed the constitutional limitations on the exercise of specific personal jurisdiction. In both states, the Courts held that due process prohibits the exercise of specific personal jurisdiction over out-of-state defendants in cases where the defendant does not have sufficient minimum contacts with the forum state and in cases where the alleged injury does not arise from those contacts.</p> <p>In <i>State ex rel. LG Chem, Ltd. v. The Hon. Nancy Watkins Laughlin</i>, 2020 Mo. LEXIS 193 (Mo. banc June 2, 2020), Plaintiff Peter Bishop brought suit against Defendant LG Chem, a Korean company, in St. Louis County Circuit Court. Bishop alleged he was injured when a lithium-ion battery manufactured by LG Chem exploded in his pocket. Bishop also alleged LG Chem sold the battery to an intermediate distributor, which independently sold the battery to a retailer of electronic cigarettes in Missouri from whom Bishop purchased the battery.</p> <p>LG Chem moved for dismissal based on lack of personal jurisdiction. In opposing LG Chem&rsquo;s motion, Bishop relied on <i>Bristol-Myers Squibb Co. v. Superior Court of California,</i> 137 S. Ct. 1773 (2017). In <i>Bristol-Myers</i>, the United States Supreme Court held that a state court could not exercise specific personal jurisdiction over an out-of-state defendant unless there was &ldquo;an affiliation between the forum and the underlying controversy, principally&hellip;an occurrence that takes place in the forum state.&rdquo; <i>Id.</i> at 1781. Bishop argued there was a sufficient &ldquo;affiliation&rdquo; between Missouri and the underlying controversy to justify the exercise of specific personal jurisdiction over LG Chem because the battery had made its way to Missouri through the third-party distributor and caused injury in Missouri. LG Chem&rsquo;s motion to dismiss was denied.&nbsp;Ultimately, the Missouri Supreme Court found Bishop&rsquo;s application of <i>Bristol-Myers</i> to be overbroad and held the actions of a third party, standing alone, cannot be used to satisfy the due process requirement of the specific personal jurisdiction analysis. Since the subject battery had been sold to the Missouri retailer by an independent third party, the Court directed the circuit court to vacate its order overruling LG Chem&rsquo;s motion to dismiss for lack of personal jurisdiction.</p> <p>Two days later, the Supreme Court of Illinois also issued an opinion addressing the exercise of personal jurisdiction over an out-of-state defendant, but unlike the Missouri case, the case involved claims brought by out-of-state plaintiffs. In <i>Rios v. Bayer Corp.,</i> 2020 IL 125020 (June 4, 2020), the Court held that due process did not allow Illinois courts to exercise specific personal jurisdiction over an out-of-state defendant as to the claims of out-of-state plaintiffs for personal injuries suffered outside of the state from a device manufactured outside of the state. At issue were two cases, both filed in Madison County, Illinois, in which 180 women from more than twenty states alleged injuries related to the use of a permanent birth control device called Essure. The out-of-state plaintiffs had not had the Essure device prescribed or implanted in Illinois and had not sought treatment for their alleged injuries in Illinois. Bayer moved for dismissal of the out-of-state plaintiffs&rsquo; claims based on lack of personal jurisdiction. In response to Bayer&rsquo;s motion, the out-of-state plaintiffs argued the trial court could exercise specific personal jurisdiction over Bayer for their claims because Bayer had developed, labeled, marketed and worked on gaining regulatory approval for Essure in Illinois, and the plaintiffs&rsquo; claims arose, in part, from those &ldquo;minimum contacts&rdquo; between Bayer and the State of Illinois.&nbsp;</p> <p>While Bayer&rsquo;s motion was pending in the trial court, the United States Supreme Court issued its opinion in <i>Bristol-Myers</i>. Despite the new guidance provided in <i>Bristol-Myers</i>, the trial court denied Bayer&rsquo;s motion, relying on <i>M.M. v. GlaxoSmithKline LLC,</i> 2016 IL App (1<sup>st</sup>) 151909, wherein the Illinois Court of Appeals had found the exercise of personal jurisdiction over an out-of-state defendant did not violate the due process clause in product liability cases brought by out-of-state plaintiffs where clinical trials had been conducted in Illinois. Bayer appealed. The appellate court held the exercise of personal jurisdiction over Bayer by the trial court was constitutional because the out-of-state plaintiffs&rsquo; claims arose, at least in part, from Bayer&rsquo;s marketing, clinical trials and physician accreditation programs related to Essure in Illinois.</p> <p>Ultimately, the Illinois Supreme Court reversed the appellate and trial courts. The Court determined <i>Bristol-Myers</i> had foreclosed the plaintiffs&rsquo; theory of specific personal jurisdiction and concluded that the out-of-state plaintiffs&rsquo; claims did not arise out of Bayer&rsquo;s activities in Illinois; therefore, due process did not allow the trial court&rsquo;s exercise of specific personal jurisdiction over Bayer as to the out-of-state plaintiffs&rsquo; claims.&nbsp;&nbsp;</p> <p>These cases represent the first application of the limitations on specific personal jurisdiction expressed in <i>Bristol-Myers</i> by each state&rsquo;s Supreme Court.&nbsp;The conclusion reached by both Courts emphasizes the importance of conducting a comprehensive evaluation of a defendant&rsquo;s contacts with the forum state immediately upon service of the summons in every instance.</p> Circuit Paves the Way for Illinois Biometric Law Suits in Federal Courts Jun 2020Illinois Law Blog<p>In <i>Bryant v. Compass Grp. USA, Inc.</i>, 958 F.3d 617 (7th Cir. 2020), the federal court of appeals for the Seventh Circuit answered in the affirmative the question of whether, for federal-court purposes, a person aggrieved by a violation of Illinois&rsquo; Biometric Information Privacy Act (BIPA) has suffered the kind of injury-in-fact that supports Article III standing.</p> <p>Plaintiff Christine Bryant&rsquo;s workplace installed &ldquo;Smart Market&rdquo; vending machines owned and operated by the defendant Compass Group U.S.A., Inc. Rather than accept cash, users had to establish an account using a fingerprint. During orientation, plaintiff&rsquo;s employer instructed her and others to scan their fingerprints into the Smart Market system to establish a payment link to create user accounts. In violation of section 15(a) of BIPA, Compass never made publicly available a retention schedule and guidelines for permanently destroying the biometric identifiers and information it was collecting and storing. In addition, in violation of section 15(b) of BIPA, Compass (1) never informed Bryant in writing that her biometric identifier was being collected or stored, (2) never informed Bryant in writing of the specific purpose and length of time for which her fingerprint was being collected, stored, and used, and (3) never obtained Bryant&rsquo;s written release to collect, store, and use her fingerprint. Plaintiff asserted that Compass&rsquo;s failure to make the requisite disclosures denied her the ability to give informed written consent as required by BIPA, leading to the loss of the right to control her biometric identifiers and information. Seeking redress for this alleged invasion of her personal data, Bryant brought a putative class action against Compass pursuant to BIPA&rsquo;s provision providing a private right of action in state court to persons &ldquo;aggrieved&rdquo; by a violation of the statue.</p> <p>Compass removed the case to federal court on the basis of diversity of citizenship. Plaintiff Bryant moved to remand to state court, claiming that the federal district court did not have subject-matter jurisdiction because she lacked the concrete injury-in-fact necessary to satisfy the federal requirement for Article III standing. The district court agreed with plaintiff and remanded to the state court.</p> <p>On appeal, the Seventh Circuit noted that for Bryant to have Article III standing, she must satisfy three requirements: (1) she must have suffered an actual or imminent, concrete and particularized injury-in-fact; (2) there must be a causal connection between her injury and the conduct complained of; and (3) there must be a likelihood that this injury will be redressed by a favorable decision. Only the first of these requirements was at issue in the case in that the second and third requirements were clearly satisfied.</p> <p>The appellate court ultimately concluded that Bryant has Article III standing as to her action for violations of section 15(b), but not for violations of section 15(a). Compass&rsquo;s failure to abide by the requirements of section 15(b) before it collected users&rsquo; fingerprints denied Bryant and others like her the opportunity to consider whether the terms of that collection and usage were acceptable given the attendant risks. Going beyond a failure to satisfy a purely procedural requirement, Compass withheld substantive information to which Bryant was entitled and thereby deprived her of the ability to give <i>informed</i> consent as mandated by section 15(b). The appellate court found this deprivation is a concrete injury-in-fact that is particularized to Bryant and others like her, thereby meeting the Article III requirement for standing.</p> <p>In contrast, the section 15(a) claim involves a duty owed to the public generally: the duty to make publicly available a data retention schedule and guidelines for permanently destroying collected biometric identifiers and information. This provision is not part of the informed consent regime of the statute, and Bryant alleges no particularized harm to herself or others that resulted from the alleged violation of section 15(a). Thus, she lacks standing to pursue that claim in federal court.</p> This opinion finally answers the BIPA standing question but does so differently than many federal district courts that have remanded BIPA suits as alleging mere procedural violations without concrete, particularized harm. While this ruling is in line with the Ninth Circuit&rsquo;s ruling in <i>Patel v. Facebook, Inc.</i>, which we reported on <u><a href=";an=96893&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a></u>, it is at odds with other rulings, including one from the Second Circuit. This may open the door for U.S. Supreme Court review as it potentially affects a large number of lawsuit across the country.&nbsp; Supreme Court Ruling Emphasizes Necessity of Post-Trial Motion in the Preservation of Trial Court Error Jun 2020Illinois Law Blog<p>In <i>Crim v. Dietrich</i>, 2020 IL 124318, the Illinois Supreme Court found that in a health care liability case, the lower appellate court&rsquo;s mandate remanding the case for a new trial did not include a new trial on the professional negligence claim. The plaintiffs, who filed both a professional negligence claim and a claim alleging failure to obtain informed consent, failed to file a post-trial motion after a jury verdict on the professional negligence claim.&nbsp;While the lower appellate court issued just a general mandate for a new trial and the appellate court later clarified that it intended that mandate to allow for a retrial of both claims, the Supreme Court held the plaintiffs forfeited their right to a retrial on the professional negligence claim.&nbsp;In other words, the mandate could not have included a mandate for a new trial on the professional negligence claim because the right to appeal that claim had already been lost by failure to file a post-trial motion.&nbsp;</p> <p>The Crims, acting on behalf of their biological son, filed a medical malpractice claim against defendant Dr. Gina Dietrich alleging two claims: (1) that she failed to obtain Mrs. Crim&rsquo;s informed consent to perform a natural birth despite possible risks associated with her son&rsquo;s large size; and (2) that defendant negligently delivered the baby, causing him injuries.&nbsp;The trial court granted defendant&rsquo;s motion for directed verdict on the issue of informed consent on the basis that the plaintiffs needed, but lacked, expert testimony that a reasonable patient would have pursued a different form of treatment.&nbsp;Thereafter, following additional evidence, the jury returned a verdict in defendant&rsquo;s favor and against plaintiffs on their remaining claim of professional negligence.&nbsp;The plaintiffs did not file any post-trial motions, and instead filed a timely notice of appeal.&nbsp;</p> <p>In their brief before the Appellate Court for the 4th District, the plaintiffs framed their appeal as a review only on whether the circuit court erred in issuing a directed verdict on the informed consent claim, expressly stating that their appeal is not based upon the verdict of the jury.&nbsp;The 4th District ruled that the trial judge incorrectly issued the directed verdict and granted a new trial.&nbsp;The appellate court entered a general mandate reversing and remanding to the circuit court for such other proceedings as required by the order of the appellate court.&nbsp;</p> <p>Plaintiffs claimed that this general mandate of remand and retrial entitled them to a new trial on not only the informed consent claim, but also on the professional negligence claim.&nbsp;According to plaintiffs, they should be allowed to retry both claims because the claims were intertwined, and the trial court tainted the rest of their case when it erroneously granted defendant a directed judgment.&nbsp;</p> <p>The Illinois Supreme Court, however, disagreed, stating that &ldquo;the trouble with [plaintiff&rsquo;s] argument is the simple fact that they never filed a post-trial motion pursuant to section 2-1202.&rdquo;&nbsp;Section 2-1202 of the state Code of Civil Procedure requires litigants to challenge a jury&rsquo;s verdict with post-trial motions even when the trial court enters a partial directed verdict as to other issues in the case.&nbsp;&ldquo;The failure by plaintiffs to file a post-trial motion challenging the jury&rsquo;s verdict deprived the circuit court of an opportunity to correct any trial court errors involving the jury&rsquo;s verdict and undermined any notion of fairness to defendant on appeal.&rdquo;&nbsp;</p> <p>Notably, this Supreme Court ruling came after the appellate court answered a certified question by saying it had intended the plaintiffs&rsquo; negligence claims to be retried when it reversed and remanded the trial court&rsquo;s directed judgment.&nbsp;</p> <p>In a dissenting opinion, Justice Thomas Kilbride wrote that the majority&rsquo;s holding confuses a party&rsquo;s forfeiture of an argument with a reviewing court&rsquo;s power to grant relief.&nbsp;He also felt that the Court should not have entertained the appeal at all because it was too case-specific and not &ldquo;of general importance.&rdquo;&nbsp;</p> <p>The case emphasizes the importance of post-trial motions in preservation of error for purposes of appeal.&nbsp;Prudent practitioners should raise in post-trial motions all issues which might be the basis for arguments of trial court error later.</p> District Court in Illinois Requires Plaintiffs to Arbitrate Biometric Privacy Lawsuit Jun 2020Illinois Law Blog<p>Recently, the District Court for the Northern District of Illinois again addressed an issue related to the Illinois Biometric Information Privacy Act. As previously discussed in this <a href=";an=106833&amp;format=xml&amp;stylesheet=blog&amp;p=5258">blog post</a>, this court has issued other rulings on issues arising under the Act.&nbsp;In <i>Miracle-Pond v. Shutterfly, Inc.</i>, the plaintiff, Vernita Miracle-Pond, registered for a Shutterfly account using the Shutterfly Android mobile app in August 2014. &nbsp;In order to install the app, the plaintiff was required to accept Shutterfly&rsquo;s terms of use. &nbsp;In the version of the terms of use accepted by the plaintiff, Shutterfly reserved the right to revise the terms of service without notice to Shutterfly users.&nbsp;Shutterfly was merely required to post the new terms.&nbsp;In May 2015, Shutterfly revised its terms of use, adding an arbitration provision.&nbsp;Every version of Shutterfly&rsquo;s terms of use since May 2015, including the most recent version at the time of the court&rsquo;s ruling, included an arbitration provision.&nbsp;Each version&rsquo;s arbitration clause stated:</p> <p style="margin-left: 40px;">NOTE: THIS TERMS OF USE CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISION IN THE &lsquo;ARBITRATION&rsquo; SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THE TERMS OF USE AND WITH RESPECT TO ANY DISPUTE BETWEEN YOU AND US AND OUR AFFILIATES.</p> <p align="center" style="margin-left: 40px;">***</p> <p style="margin-left: 40px;">[Y]ou and Shutterfly agree that any dispute, claim or controversy arising out of or relating in any way to the Shutterfly service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration.</p> <p>In June 2019, Ms. Miracle-Pond and another plaintiff filed suit against Shutterfly, individually and on behalf of proposed class members, alleging that Shutterfly violated the Illinois Biometric Information Privacy Act by using facial-recognition technology to extract biometric identifiers for &ldquo;tagging&rdquo; individuals and by selling, leasing, trading, or otherwise profiting from the plaintiffs&rsquo; and proposed class members&rsquo; biometric identifiers.&nbsp;</p> <p>Nearly three months after the plaintiffs filed suit, Shutterfly sent an email to all of its users nationwide, notifying its users that Shutterfly&rsquo;s terms of use had been updated.&nbsp;The email further stated that Shutterfly had updated its terms of use to clarify users&rsquo; legal rights in the event of a dispute and how disputes would be resolved in arbitration.&nbsp;Finally, the email instructed users that if they did not close their accounts by October 1, 2019, or if they otherwise continued to use Shutterfly&rsquo;s app and/or website, they would be deemed to have accepted Shutterfly&rsquo;s terms of use. &nbsp;Shutterfly&rsquo;s records indicated that Ms. Miracle-Pond opened Shutterfly&rsquo;s email and that her account remained open as of October 2, 2019.</p> <p>In response to the lawsuit, Shutterfly filed a motion to compel arbitration.&nbsp;The plaintiffs filed a motion for curative measures related to Shutterfly&rsquo;s September 2019 email to all users.&nbsp;In ruling on the motion to compel arbitration, the court first examined whether a valid arbitration agreement existed.&nbsp;In addition to Illinois&rsquo;s general contract principles, the court examined factors specific to Internet agreements to determine if a valid arbitration agreement existed.&nbsp;Specifically, the court analyzed whether the: 1) web pages presented to the plaintiff adequately communicated all the terms and conditions of the agreement, and 2) circumstances supported the assumption that the plaintiff received reasonable notice of those terms.</p> <p>The plaintiffs argued that Ms. Miracle-Pond merely agreed that her use of Shutterfly&rsquo;s website and services would comply with Shutterfly&rsquo;s terms of use, not that she would be bound by the term of use.&nbsp;In other words, she claimed that Shutterfly improperly used what is known as a &ldquo;browsewrap&rdquo; agreement, rather than a permissible &ldquo;clickwrap agreement.&rdquo;&nbsp;A browsewrap agreement is an agreement where users are bound by a website&rsquo;s terms by merely navigating or using the website; the user is not required to sign an electronic document or explicitly click an accept or agree button.&nbsp;By contrast, a clickwrap agreement requires users to click a button or check a box that explicitly affirms that the user has accepted the terms of use.&nbsp;In rejecting the plaintiff&rsquo;s argument, the court explained that Shutterfly presented the terms of use to the plaintiff for viewing and provided an &ldquo;accept&rdquo; and &ldquo;decline&rdquo; button.&nbsp;Thus, the court concluded that Shutterfly&rsquo;s terms of use constituted a valid clickwrap agreement, and that Ms. Miracle-Pond agreed to be bound by the terms of use.</p> <p>The plaintiffs further argued that the terms of Shutterfly&rsquo;s arbitration agreement were illusory because they were subject to unilateral modification.&nbsp;The court rejected this argument, explaining that Illinois law allows for arbitration provisions that may be changed unilaterally.&nbsp;Shutterfly&rsquo;s terms of use contained a valid change-in-terms provision that informed users that Shutterfly had the right to unilaterally modify its terms, that modified terms would be posted to its website, and that continued use of Shutterfly products constituted an acceptance of the modified terms.&nbsp;The court explained that Ms. Miracle-Pond&rsquo;s continued use of Shutterfly after it introduced the arbitration agreement to its terms of use constituted an acceptance of the agreement.</p> <p>The plaintiffs also claimed that Shutterfly was attempting to improperly apply the arbitration agreement on a retroactive basis, given Shutterfly&rsquo;s September 2019 email to all of its users regarding arbitration of disputes.&nbsp;The court found that Shutterfly was not attempting retroactive application of the arbitration agreement, finding that the plaintiff accepted the agreement when she continued using Shutterfly after it introduced the arbitration agreement in 2015.</p> <p>Ultimately, this case illustrates the importance of valid arbitration agreements.&nbsp;As discussed in prior Baker Sterchi blog posts, there has been a significant increase in litigation arising under the Illinois Biometric Information Privacy Act since 2019.&nbsp;This litigation is extremely risky for companies due to the manner in which courts have interpreted the Act&rsquo;s standing requirement and the penalties imposed by the Act.&nbsp;If used properly, arbitration agreements give companies an opportunity to avoid the costs and uncertainty of litigating these claims in court.&nbsp;Therefore, if your company is named in a biometric lawsuit, it is imperative to determine if there are any grounds to require arbitration of the dispute.&nbsp;Additionally, to the extent companies that utilize biometric technology do not currently have arbitration agreements in place, they should consider implementing such an agreement. &nbsp;&nbsp;&nbsp;</p> <p>The complete citation for this case is <i>Miracle-Pond v. Shutterfly, Inc.</i>, 2020 U.S. Dist. Lexis 86083 (N.D. Ill. May 15, 2020).&nbsp; &nbsp;</p> and Possible Changes to Workers' Compensation Laws in Illinois and Missouri Jun 2020Illinois Law Blog<p>As employees slowly begin to return to work in &ldquo;the new normal&rdquo; following mandatory stay-at-home orders across the country, employers in Illinois and Missouri are busy establishing policies in compliance with opening orders and guidelines.&nbsp; To mitigate the risk of potential workers&rsquo; compensation claims, employers should be aware of possible changes to workers&rsquo; compensation laws due to COVID-19 exposure in the workplace.</p> <p>On April 13, 2020, the Illinois Workers Compensation Commission passed an emergency rule in response to the COVID-19 pandemic.&nbsp; This rule created a rebuttable presumption of compensability in favor of employees classified as first responders and essential front-line workers during the COVID-19 state of emergency.&nbsp; For those individuals, the rule imposed a rebuttable presumption that the individual&rsquo;s exposure arises out of and in the course of employment and is causally connected to their employment.&nbsp;</p> <p>In response, the Illinois Manufacturers Association and Illinois Retail Merchants Association requested a Temporary Restraining Order, which was granted on April 24, 2020.&nbsp; The emergency rule was thereafter withdrawn by the IWCC.&nbsp; COVID-19 may still be considered a compensable occupational disease under the Illinois Workers&rsquo; Compensation Act, but there is no longer a rebuttable presumption of compensability following withdrawal of the rule.&nbsp;</p> <p>In Missouri, Governor Mike Parson directed the Department of Labor and Industrial Relations to implement an emergency rule that will provide workers compensation benefits to first responders who contract COVID-19.&nbsp; On April 7, 2020, the Department of Labor and its Division of Workers&rsquo; Compensation filed an emergency rule creating a presumption that First Responders infected by or quarantined due to COVID-19 are deemed to have contracted a contagious or communicable occupational disease arising out of and in the course of the performance of their employment.&nbsp; &ldquo;First Responders&rdquo; include law enforcement officers, firefighters or an emergency medical technicians.&nbsp;&nbsp;</p> <p>The presumption created by the rule is rebuttable in the event a subsequent medical determination establishes by clear and convincing evidence that (1) the First Responder did not actually have COVID-19, or (2) the First Responder contracted or was quarantined for COVID-19 resulting from exposure that was not related to the First Responder&rsquo;s employment.</p> <p>The Labor and Industrial Relations Commission voted unanimously to approve the emergency rule on April 8, 2020, with an effective date of April 21, 2020.&nbsp; However, the rule is retroactive.&nbsp; The full text of 8 CSR 50-5.005 can be found <a href="">here</a>.</p> <p>Unlike the emergency rule attempted in Illinois, only First Responders are provided with a presumption of an occupational disease under the Missouri emergency rule.&nbsp; To date,&nbsp; no further amendments&nbsp; have been introduced to expand the presumption created by the emergency rule to&nbsp; non-First Responders, however, as more and more businesses slowly open following the lifting of the stay-at-home orders issued through Missouri, employers may find themselves receiving COVID-19-related workers&rsquo; compensation claims.&nbsp; COVID-19 has been classified as a communicable disease by the State of Missouri and communicable diseases are included in the definition of &ldquo;occupational disease&rdquo; under Missouri Workers&rsquo; Compensation Law.</p> <p>As in all states, laws and regulations related to the COVID-19 pandemic are ever-changing in Illinois and Missouri.&nbsp; The area of workers&rsquo; compensation is no exception and additional changes and expansions to the current laws are possible.&nbsp;&nbsp;&nbsp; Employers in both states should remain aware of those changes in order to better anticipate potential claims, mitigate risk and create workplaces that protect employees from exposure to the best of their ability.</p>