Tag: Illinois Supreme Court

It’s Official – BIPA’s “Per-Scan” Damages Are Out; Electronic Signatures Are In

If you heard a collective sigh of relief last week, it was probably businesses reacting as Illinois Governor Pritzker finally signed Senate Bill 2979, officially reforming BIPA for the first time since 2008. As a reminder, SB 2979 was passed back in May, but has been awaiting the Governor’s signature.

This development is significant for two reasons. First, the new law prohibits the recovery of “per-scan” damages. This means that if a business collects or discloses an individual’s biometric data without consent, then that business is only liable for one BIPA violation as to that individual. In 2023, the Illinois Supreme Court’s decision in Cothron v. White Castle Systems decided that violations were accrued on a “per-scan” basis, leading to an outpouring of claims. This law effectively overrules that decision. Second, the bill permits businesses to fulfill the “written release” requirement for consent via “electronic signature.” This will make it easier for businesses to collect – and individuals to provide – consent for the collection and retention of biometric information.

Putting it into Practice: These amendments became effective on August 2, 2024. Businesses that anticipated costly litigation from a “per-scan” BIPA demand may have cause for relief. However, the prohibition on “per-scan” damages may not apply retroactively to pending BIPA actions. Additionally, businesses can reconfigure their consent flows to enable electronic signatures.

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by: David M. Poell , Kathryn Smith of Sheppard, Mullin, Richter & Hampton LLP

For more news on the Illinois Biometric Information Privacy Act (BIPA), visit the NLR Consumer Protection section.

Illinois Supreme Court Rules 6-Person Jury Act Unconstitutional

trial by jury Illinois Supreme CourtIn an opinion released this morning, the Illinois Supreme Court held that the right of trial by jury includes the right to demand a 12-member jury. In Kakos v. Butler, 2016 IL 120377, the Court held that Public Act 98-1132, which bars a litigant from exercising this right, and the statute it amended, 735 ILCS 5/2-1105(b), were “facially unconstitutional.” Kakos, 2016 IL 120377, ¶ 37. Because the provision regarding jury size could not be severed from the entirety of the Act, the Court invalidated the entire Act.

Public Act 98-1132 (effective June 1, 2015), which amended section 2-1105(b) of the Code of Civil Procedure, limited the size of a civil jury to six persons and increased the amount paid per juror across the state. In Kakos, the plaintiffs filed a complaint at law alleging multiple counts of negligence and loss of consortium against the defendants. The defendants then moved to request a 12-person jury and sought a declaration that P.A. 98-1132 was unconstitutional. The circuit court agreed with the defendants and granted the motion, finding that the Act was facially unconstitutional and violated separation of powers. The plaintiffs then appealed to the Illinois Supreme Court as a matter of right under Rule 302(a).

According to the Supreme Court, “it is clear that the drafters of the 1970 Illinois Constitution intended for the essential common-law features of a jury trial as then employed to be preserved and protected.” Kakos, 2016 IL 120377, ¶ 36. The Court said that Article I, section 13, of the Illinois Constitution “reveals an intent on the part of the drafters to maintain common-law characteristics of jury trials.”Id. Article I, section 13, provides: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” Id. ¶ 13. According to the Court, “[t]he phrase ‘as heretofore enjoyed’ plainly indicates that the drafters intended for certain characteristics of a jury trial to be maintained.” Id. It further observed, “[t]his court has long interpreted the phrase ‘as heretofore enjoyed’ to mean ‘the right of a trial by jury as it existed under the common law and as enjoyed at the time of the adoption of the respective Illinois constitutions.’” Id. ¶ 14.

The Court said that it “has long included the 12-person size of a jury within its descriptions of the essential features of a jury trial.” Id. ¶ 36. The “transcripts from the convention debates,” the Court explained, “make clear that the drafters did not believe the legislature had the authority to reduce the size of a jury below 12 members and the drafters did not act to give the legislature such power.” Id. The Act and statutory amendment violated Article I, section 13.

The decision, authored by Justice Garman, was 5-0, with Justices Thomas and Kilbride taking no part.

ARTICLE BY Brad Elward of Heyl, Royster, Voelker & Allen, P.C.

© 2016 Heyl, Royster, Voelker & Allen, P.C