Amicus briefs program for Illinois Chamber members

The Illinois Chamber of Commerce's Amicus Briefs Program is led by Peter Steinmeyer, Partner with Epstein Becker Green, and Keith Staats, Executive Director of Illinois Chamber's Tax Institute.

The goal of the Chamber’s amicus program is to provide a consistent, strong voice for the business community in cases before the Illinois Supreme court and state and federal appellate courts via amicus briefs on key business issues. The program’s primary focus is on tort related cases, but we will take up other types of cases when appropriate.

The program is an important way to bring attention to a specific case by providing additional information for the court to consider. It is crucial for Chamber members to know about this program and support it. For more information about the Amicus brief program, contact Keith Staats at (217) 522-5512 ext 231 or kstaats@ilchamber.org.

Summary of Briefs Filed

2024 Amicus Program activities

Amicus Brief: Concerned Citizens v. Illinois Commerce Commission

We filed an amicus brief along with a motion to accept the brief urging the Illinois Supreme Court to accept a Petition for Leave to Appeal filed by Illinois Chamber member Invenergy.

At issue in this case is whether the ICC appropriately issued a permit for the Grain Belt Express high-voltage transmission line. The Fifth District Appellate Court determined that the permit was wrongfully issued, reversing the Commission’s decision, to grant a certificate of public necessity.

As explained in our brief, the appellate court’s decision calls into question the ability of the State to develop the necessary energy infrastructure to carry out the clean energy goals set forth by the Climate and Equitable Jobs Act. Without that infrastructure, the ability of our members to access reliable sources of affordable energy is called into question, as is the State’s ability to attract businesses that depend on that infrastructure.

Hogan v. Airbnb

We are partnering with the U.S. Chamber of Commerce on a brief to be filed with the Illinois Appellate court in support of Airbnb. As of the date of this report, a briefing schedule has not yet been set.

The issue in the case concerns whether the prohibition against discrimination regarding the full and equal enjoyment of “public place of accommodation in the Illinois Human Rights Act encompasses online marketplaces. The Illinois Human Rights Commission held that the Illinois Human Rights Act is limited to physical places of accommodation and dismissed for lack of jurisdiction (among other grounds) a complaint filed by a user of Airbnb’s refusal to take down a comment by a property host about the user.

Lindblom v. Best Buy Stores, L.P.

We are partnering with the Taxpayers’ Federation of Illinois and the Illinois Retail Merchants Association on a brief to be filed with the Appellate Court in support of Best Buy by September 13. This case is identical in substance to the Lindblom v. Lowe’s case in which we filed an amicus brief earlier this year.

The plaintiffs filed a qui tam action under the False Claims Act. In our brief, we argue the following:

Qui tam actions are substitutes for government action whereby the government deputizes its role to private actors. For this reason, qui tam actions are only appropriate if the government lacks the resources to act on its own. Where the government has affirmatively and independently acted to address a certain taxpayer’s compliance by way of an audit, there is no additional need for private actors to pursue claims concerning that taxpayer’s compliance. Thus, the qui tam process should not be available against a taxpayer, such as Best Buy, that has already been audited and paid any additionally assessed taxes as a result of such audits.

Martin v. Goodrich Corp. et al.

We partnered with the U.S. Chamber of Commerce on a brief filed with the Illinois Supreme court in support of Goodrich Corporation. The court accepted our brief. Our brief was completed by Matthew Wolf, Philip Goldberg and Christopher Appel of Shook Hardy & Bacon LLP.

The U.S. Court of Appeals for the Seventh Circuit certified questions to the Illinois Supreme Court to determine whether an occupational disease claim clearly extinguished under the Illinois Workers’ Occupational Disease Act in 1976 can be revived today. As explained in our brief “[a] straight-forward application of the Occupational Disease Act, the terms of legislation the General Assembly enacted in 2019 to narrow the exclusivity of the Occupational Disease Act, and the due process right this Court has recognized that prevents defendants from facing extinguished claims all dictate that the answer to these questions is “no.” These claims cannot be revived.”

Plaintiff filed the claims, asserting the Illinois General Assembly revived them and allowed them to be filed in court when it amended the ODA in 2019. These amendments created a new exception to the ODA’s exclusivity provisions, stating the exclusivity provisions no longer apply “to any injury or death resulting from an occupational disease as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision.” 920 ILCS 310/1.1 (“Section 1.1 exception”). In these narrow circumstances, a person with standing to bring the claim would have a right of action in court against the employer. Plaintiff argues that because Mr. Martin’s disease was not diagnosed until after these enactments went into effect, the new exceptions can be applied to her claims.

In our brief, we request that the Supreme Court hold that the Section 1.1 provision does not apply retroactively. The General Assembly can change substantive law only for future conduct – not retroactively.

Mercado v. S & C Electric

We filed an amicus brief with the Illinois Supreme Court jointly with the Chicagoland Chamber of Commerce and the Illinois Manufacturers’ Association in support of our member S & C Electric. The court accepted our brief. The brief was completed by Gretchen Harris Sperry of the law firm of Gordon Rees Scully Mansukhan LLP. Oral arguments were held before the court on September 17.

Plaintiffs filed this class action lawsuit against S&C, alleging it failed to include the value of certain incentive payments when calculating the regular rate of pay used to determine their overtime wages, and they were underpaid as a result. They sued S&C on behalf of the proposed class seeking payment of unpaid wages, treble statutory damages and penalties, and attorney fees.

The circuit court dismissed the complaint. The appellate court upheld the dismissal holding that hourly workers’ bonuses not measured by or derived from hours worked are properly excluded from the regular rate calculation used to determine overtime wages. The appellate court also affirmed dismissal on the ground that Plaintiffs did not sufficiently plead damages as to underpaid wages.

Building Owners and Managers Association of Chicago, et al. v. Board of Election Commissioners for the City of Chicago, et al.

We filed an amicus brief with the Illinois appellate court in support of the plaintiffs, jointly with the Chicagoland Chamber of Commerce, the Illinois Manufacturers Association, the Illinois Hotel and Lodging Association, the International Council of Shopping Centers, Inc., the Southside Builders Association, the Asian Real Estate Association of America Greater Chicago, the Edgewater Uptown Builders Association, the Rogers Park Builders Group, the Latino Real Estate Investors Council, the Northwest Side Building Coalition and, the Parking Industry Labor Management Committee.

We filed a brief in support of the challenge to validity of the “Bring Chicago Home” referendum that would establish a graduated real estate transfer tax in Chicago. The circuit court of Cook County entered an order in favor of the plaintiffs and enjoined the Board of Elections from counting and reporting votes related to the referendum on the March 19 ballot.

The appellate court reversed the circuit court. The Supreme Court denied the petition for leave to appeal in March.

Lindblom v. Lowe’s Home Centers

We filed an amicus brief with the Illinois Appellate court jointly with the Taxpayers’ Federation of Illinois and the Illinois Retail Merchants Association in support of Lowe’s Home Centers. The court accepted our brief. The brief was completed on a pro bono (no charge) basis by David Hughes and Jeff Svehla of Horwood Marcus & Berk.

Lowe’s is appealing the Circuit Court’s judgment imposing liability on Lowe’s for violating the Illinois False Claims Act based on the court’s findings that Lowe’s (1) relied on “terms and distinctions which are not found in Illinois law”; (2) disregarded advice from its advisor, PwC; and (3) ignored the purportedly “obvious warning sign” that was the June 2015 Compliance Alert from the Illinois Department of Revenue

City of Chicago, Department of Public Health v. City of Chicago Department of Administrative Hearings, et al.

We filed an amicus brief in the circuit court of Cook County jointly with the Illinois Manufacturers’ Association, the Illinois Environmental Regulator Group and the Calumet Area Industrial Commission in support of Southside Recycling and the City of Chicago Department of Administrative Hearings. The City challenged the acceptance of our amicus brief, but our brief, and other briefs filed in this matter, were accepted. We are represented by Matthew Wolfe and Dylan Tilbury of Shook, Hardy & Bacon LLP.

This case involves whether a City of Chicago administrative agency, after the approval of many other agencies and the investment of tens of millions of dollars in reliance on those agencies’ approval, can arbitrarily decide not to issue a permit. Chicago.

2023 Amicus Program activities

Fausett v. Walgreen Co.

We filed an amicus brief jointly with the U.S. Chamber of Commerce, along with a motion to accept the brief, with the Illinois Supreme Court on December 6, 2023. The U.S. Chamber of Commerce funded the drafting of the brief. We are represented by Matthew Wolfe and Dylan Tilbury of Shook, Hardy & Bacon LLP.

In this case, the plaintiff alleges that Walgreens violated the Federal Fair and Accurate Credit Transaction Act (FACTA) which prohibits the printing of more than the last five digits of a credit card number on a receipt. The plaintiff alleges that Walgreens printed the first 6 digits of a pre-paid debit card along with the last 4 digits on the receipt of a transaction that occurred in Arizona. In our brief, we address the following issue: The court has an important opportunity to reaffirm longstanding Illinois law that, regardless of the cause of action, a plaintiff must have a distinct and palpable injury to have standing to file a lawsuit in the State’s courts.

5/17/24 Update: The Illinois Supreme Court dismissed the appeal on May 17, as “improvidently granted” and sent it back down to the Second District Appellate Court for consideration. The case had gotten to the Supreme Court after the Second District rejected an interlocutory appeal of the ruling certifying the class. The Supreme Court order the Second District to take the case, rather than leaping into a ruling on the merits itself. The Supreme Court order indicated that the briefs, including our amicus, filed in the Supreme Court should be used by the Second District Court.

Marathon Petroleum v. County of Cook

We filed an amicus brief, along with a motion to accept the brief, with the Illinois Supreme Court on October 27, 2023. The court granted our motion and accepted our brief. The brief was completed on a pro bono (no charge) basis by a member of the Chamber amicus committee, Stan Kaminski a retired partner who is of Counsel to Duane Morris LLP, and Dakota Newton of Duane Morris. Oral arguments were heard by the Supreme Court on September 12.

The case involves the reach of the Cook County Motor Fuel Tax. Our interests on behalf of the business community are the constitutional infirmities associated with the County’s position that, if upheld, would have an adverse impact on taxation of the business community well beyond the county motor fuel tax at issue in this case. In our brief, we explain that the appellate court’s decision approving Cook County’s expansion of its home rule taxing power to sales of intangibles not only opens a Pandora’s box of possible new municipal occupation taxes that can be imposed on businesses, but also is a direct violation of the Illinois constitutional prohibition on home rule occupation taxes. The appellate court decision also authorizes Cook County to expand its taxing jurisdiction on intangible business transactions occurring outside the borders of Cook County, which is in direct violation of the Illinois constitution’s prohibition on extraterritorial taxes.

Jupiter v. Mead Johnson & Company, LLC, Mead Johnson Nutrition Company, and Abbott Laboratories

We filed an amicus brief, along with a motion to accept the brief with the Illinois Appellate Court for the Fifth District on August 4, 2023. The appellate court granted our motion and accepted our brief. The brief was completed on a pro bono (no charge) basis by Gretchen Harris Sperry of the law firm of Gordon Rees Scully Mansukhani LLP.

This case involves the proper determination of venue (the location of the proper court) for purposes of lawsuits against companies. The circuit court ruled that the residence of a company employee working remotely was sufficient to establish venue in the circuit court for the circuit in which that remote employee resides. The circuit court’s decision in this case, if permitted to stand, could leave employers vulnerable to lawsuits anywhere in Illinois based on where their remote workers choose to live. In our amicus brief, we inform the court of the consequences of the circuit court’s flawed analysis and the effect it may have on the Illinois business community beyond this case.

Mosby v. Ingalls Memorial Hospital

We filed an amicus brief, along with a motion to accept the brief, with the Illinois Supreme Court jointly with the U.S. Chamber of Commerce on April 26, 2021. The court accepted our brief on May 8 of that year. Oral arguments were held on September 21. In a major victory for Ingalls and other health care providers, the Illinois Supreme Court held that the Biometric Information Privacy Act “excludes from its protections the biometric information of health care workers where that information is collected, used, or stored for health care treatment, payment, or operations, as those functions are defined by HIPPA. A health care worker’s biometric information, used to permit access to medication dispending stations for patient care . . . is exempt from [BIPA’s] protections.” Mosby, 2013 IL 129081, ¶ 54 (citing 740 ILCS 14/10). Accordingly, the Court reversed the judgement of the appellate court and remanded the case to the circuit court for further proceedings.

At issue in this case is the scope of the health care exception to the Illinois Biometric Privacy Act (“BIPA”). This case is yet another interlocutory appeal involving a question about a provision of BIPA. The case is an appeal from an appellate court decision that the BIPA health care exclusion is limited to only patient information.

Muhammad v. Abbott Laboratories

We filed an amicus brief, along with a motion to accept the brief with the Illinois Supreme Court on March 8, 2023. The court accepted our brief on March 16.

This is a products liability case. The appellate court replaced the longstanding proximate cause analysis for failure-to-warn liability of pharmaceutical companies with a novel standard that turns on the supposed negligence of physicians and other professionals those pharmaceutical companies neither employ, supervise, or control. In so doing, the decision improperly expands, and dramatically alters, the scope of longstanding product liability jurisprudence in Illinois, not only for Illinois’ vibrant pharmaceutical industry, but for many other industries as well.

Cothron v. White Castle System, Inc

We filed an amicus brief, along with a motion to accept the brief, with the Illinois Supreme Court jointly with the U.S. Chamber of Commerce. The court accepted our brief. Oral arguments were held before the Supreme Court on May 17, 2022. The court issued its opinion on February 17, 2023.

Upon issuance of the opinion, we joined in a motion and proposed amicus brief on a motion for rehearing. The Illinois Supreme Court accepted our amicus brief in support of the petition for rehearing.

This case presented an extremely important question under the Illinois Biometric Privacy Act regarding the meaning of the phrase “violation of this Act”—whether a new claim accrues each time a defendant allegedly collects or discloses the same biometric data from the same individual without consent, or whether multiple collections of the same data or disclosures of the same data to the same party each constitute a single “violation.”

We agreed with Defendant-Appellant White Castle System, Inc. that the plain text of the statute and relevant case law demonstrate that collection and disclosure claims involving the same biometric information accrue only once, at the time of the allegedly unauthorized initial collection or disclosure of the particular biometric data. That is when the individual suffers the alleged injury the Act is intended to prevent. That accrual rule is consistent with BIPA’s text and purpose and with the accrual rules governing other privacy-based causes of action in Illinois.

Unfortunately, the Illinois Supreme Court ruled that under Sections 15(b) and 15(d) of the Biometric Information Privacy Act a separate claim accrues under the Act each time a private entity scans or transmits an individual’s biometric identifier or information in violation of section 15(b) or 15(c).

This opinion resulted from an interlocutory appeal of a question certified by the United States Court of Appeals for the Seventh Circuit.

Walton v. Roosevelt University

We filed our amicus brief with the Illinois Supreme Court in this case and our amicus brief was accepted by the court. The case was argued on January 8. The Illinois Supreme Court issued its opinion on March 23.

The case was an interlocutory appeal. The question on appeal was whether Biometric Privacy Act (“BIPA”) claims brought by unionized employees must be grieved and arbitrated pursuant to their collective bargaining agreement, rather than brought in court.

We filed an amicus brief in this case when it was at the appellate court. The appellate court ruled that BIPA claims of unionized employees are preempted by federal labor law from being brought in court. Plaintiffs appealed the appellate court’s decision.

The Illinois Supreme Court affirmed the judgment of the appellate court.

Tims v. Black Horse Carriers, Inc.

We filed an amicus brief along with a motion to accept the brief, with the Illinois Supreme Court. The court accepted our brief. The court held oral arguments on September 22. The court issued its opinion on February 2, 2023.

This case was also an interlocutory appeal of a question concerning the construction of the Biometric Privacy Act (“BIPA”). In this case the statute of limitations was at issue.

As explained in our brief, the key question before the Court is whether the statute of limitations for the Illinois Biometric Information Privacy Act, is one year, five years, or both depending on the subsection allegedly violated, has the potential to expand the onslaught of BIPA class actions lawsuits that have demanded, and continue to demand, enormous resources from Illinois businesses. We explain that Illinois businesses, especially smaller businesses, will be negatively affected if the appellate court’s decision applying a five year catchall statute of limitations to certain BIPA claims is upheld.

The Supreme court ruled that the five-year statute of limitations contained in Section 13-205 of the Code of Civil Procedure governs claims under BIPA.

2022 Amicus Program activities

Illinois Road and Transportation Builders Association, et al. v. County of Cook

We filed an amicus brief with the Illinois Supreme Court in Illinois Road and Transportation Builders Association, et al. v. County of Cook. Our brief was accepted by the court.

This case involves the scope of the “lockbox” amendment to the Illinois constitution. Specifically, the case deals with whether the City of Chicago may use locally-imposed motor fuel taxes for purposes other than those authorized under the lockbox amendment. The appellate court ruled that the City of Chicago can use such funds for general purposes.

Oral arguments were held before the Supreme Court on January 12. The court issued its opinion on April 21. The Supreme Court reversed the circuit court’s dismissal of the complaint by the Road Builders and remanded the case back to the circuit court. The court found the language of the lockbox amendment to be plain and unambiguous, rejected the County’s interpretation of the amendment as unreasonable, and found no issue with the manner in which home-rule units of government have had their taxing and spending power limited in the transportation context. The court explained that “[a]ccordingly, because the amendment, by its plain language, applies to all moneys derived from transportation-related taxes, fees, excises, or license taxes, we hold that the circuit court erroneously dismissed the plaintiffs’ complaint.”

Firebirds v. Zurich

We joined an amicus brief filed by the American Property Casualty Insurance Association in support Chamber member Zurich American Insurance Co. in Firebirds v. Zurich. Our amicus brief was accepted by the court on January 3, 2022. Oral arguments were held on April 28.

The case involves an appeal of a decision from the circuit court of Cook County granting Zurich’s motion to dismiss.

Firebirds International owns more than 50 Wood Fired Grill restaurants in 19 states. According to the list of states in the court decision, Illinois is not one of the states. At issue in the case is whether losses suffered by Firebirds as a result of the Covid-19 pandemic are covered by a commercial insurance policy issued by Zurich. Zurich denied the claim filed by Firebirds on the basis that the losses claimed by Firebirds are not covered losses under the insurance policy.

The appellate court ruled in late May, upholding the position we took in the amicus brief. The appellate court affirmed the trial court’s dismissal of Firebird’s complaint and the court’s denial of a motion by Firebirds to amend its complaint.

Doe v. Lyft

We joined the U.S. Chamber of Commerce as amici in an amicus brief filed with the Illinois Supreme Court in Doe v. Lyft. Oral arguments were held before the court on November 10, 2021. Plaintiff seeks to hold Lyft, Inc. vicariously liable for criminal conduct of one of its drivers because Lyft provided the ride-referral platform (via the Lyft smartphone app) that connected Plaintiff to McCoy for a ride. Plaintiff contends that Lyft—and all other transportation network companies should be subject to the same kind of vicarious liability as “common carriers” under Illinois law, even though Section 25(e) of the Transportation Network Provider Act plainly declares that TNCs “are not common carriers.” 625 ILCS 57/25(e). Our amicus brief focused solely on whether Section 25(e) of the Transportation Network Provider Act, violates the special legislation provision of the Illinois Constitution, Ill. Const. (1970) art. IV, § 13. We explain why it does not.

In early January 2022, after oral arguments, but before the Supreme Court issued an opinion, the parties settled the case.

Continuing Activities

We continue in our efforts to seek additional funding for the amicus program. The law firms representing the Chamber have been generous in giving steeply discounted rates for their efforts. However, we need to continuously seek additional funding to continue our work in this regard.

We continue to review cases accepted for appeal by the Illinois Supreme Court. As we identify matters of interest to the business community, we will seek to file amicus briefs as appropriate.

Our level of activity for the amicus program during the remainder of the year and next year will be dependent upon the number of cases accepted for appeal by the Illinois Supreme Court, the number of those cases that raise issues important to the business community and available funds. At the state appellate court and federal appellate court levels it will depend on the number of cases that are identified by our members and available funds.

2021 Amicus Program Activities

Case 126605 / Filed 10/15/21

Amicus Brief: Jane Doe v. Lyft, Inc., Angelo McCoy, Sterling Infosystems, Inc., d/b/a Sterling Talent Solutions

We joined the U.S. Chamber of Commerce as amici in an amicus brief filed with the Illinois Supreme Court in Doe v. Lyft. Oral arguments were held before the court on November 10. Plaintiff seeks to hold Lyft, Inc. vicariously liable for criminal conduct of one of its drivers because Lyft provided the ride-referral platform (via the Lyft smartphone app) that connected Plaintiff to McCoy for a ride. Plaintiff contends that Lyft—and all other transportation network companies should be subject to the same kind of vicarious liability as “common carriers” under Illinois law, even though Section 25(e) of the Transportation Network Provider Act plainly declares that TNCs “are not common carriers.” 625 ILCS 57/25(e). Our amicus brief focused solely on whether Section 25(e) of the Transportation Network Provider Act, violates the special legislation provision of the Illinois Constitution, Ill. Const. (1970) art. IV, § 13. We explain why it does not.

In early January 2022, after oral arguments, but before the Supreme Court issued an opinion, the parties settled the case.

Case 1210558 / Filed 07/13/21

Amicus Brief: Illinois Road and Transportation Builders Association, Federation of Women Contractors, Illinois Association of Aggregate Producers, Associated General Contractors of Illinois, Illinois Asphalt Pavement Association, Illinois Ready Mixed Concrete Association, Great Lakes Construction Association, American Council of Engineering Companies (Illinois Chapter), Chicagoland Associated General Contractors, Underground Contractors Association of Illinois, and Illinois Concrete Pipe Association, v. The County of Cook

We filed an amicus brief with the Illinois Supreme Court in Illinois Road and Transportation Builders Association, et al. v. County of Cook.

Oral arguments were held before the Supreme Court on January 12. We await the opinion of the court.

Case 127126 / Filed 06/14/21

Amicus Brief: William Walton v. Roosevelt University

We worked with outside counsel on an amicus brief filed in the appellate court. The case is Walton v. Roosevelt University, addressing whether BIPA claims brought by unionized employees must be grieved and arbitrated pursuant to their CBA, rather than brought in court.

The appellate court ruled that BIPA claims of unionized employees are preempted by federal labor law.

2020 Amicus Program Activities

Case 18-3644, US Court of Appeals for the 7th Circuit - 10/02/20

Amicus Brief: Prairie Rivers Network v. Dynegy

An amicus brief was filed with the court by the Illinois Environmental Regulatory Group, an Illinois not-for-profit corporation affiliated with the Illinois Chamber of Commerce. The acceptance of the amicus was contested. In a decision published October 2, 2020, the court accepted the amicus.

09/17/20

Amicus Brief: Gillespie v. East Manufacturing, Illinois Supreme Court

We filed an amicus brief with the Illinois Supreme Court and the brief was accepted by the court. East Manufacturing is a member of the Illinois Chamber of Commerce.

In this case, East manufactured a dump trailer, which was sold to a dealer who sold the dump trailer to a lessor who modified the trailer at the request of a lessee. An employee of the lessee slipped and fell off the steps of the trailer and suffered injuries. East was one of the parties sued. The appellate court in this case held that Occupational Safety and Health Act (OSHA) regulations are “relevant and admissible in a product liability case to determine whether the product is defective and whether a defect in the product is reasonable.”

Our brief was prepared by a member of our amicus committee, Hugh Griffin of Hall Prangle & Schoonveld. In our amicus brief, we supported the request of East Manufacturing to overturn the decision of the appellate court.

The petition for leave to appeal to the Supreme Court by East Manufacturing explained succinctly why the appellate court decision should have been be reversed:

The appellate court’s Opinion will require product manufacturers to comply with any safety regulation, standard, or recommendation, regardless of whether the regulation, standard, or recommendation applies to the particular product manufactured. The decision also means that as a matter of statewide public policy, any manufacturer of a product that might be used in a workplace setting in Illinois will have to manufacture that product in compliance with workplace safety standards governing employers—even if both the manufacturer and end-user of the product expect that the employer will make any modifications necessary to satisfy workplace safety standards.

Oral arguments were held on September 17. The court issued its opinion on December 3. Unfortunately, the court ruled against East Manufacturing

Amicus Brief: Tims v. Black Horse Carriers, Illinois Appellate Court

During the third quarter we filed an amicus brief with the first district Illinois appellate court in. Our amicus brief was prepared by Illinois Chamber law firm member Shook Hardy. Our amicus brief was accepted by the court.

This case deals with the Illinois Biometric Privacy Act (“BIPA”). The interests of the Illinois Chamber are substantial – there are currently at least 23 Illinois Chamber members that are involved in BIPA litigation. More than 780 BIPA lawsuits have been filed in state and federal courts since 2016, with 140 new BIPA lawsuits filed since March 2020. The vast majority of BIPA lawsuits consist of class actions with members of the class alleging technical violations of the statute due to the use of timekeeping systems that use finger, hand or face scanners.

The key question for the court in this case, and the subject of our amicus brief, is whether the statute of limitations for BIPA claims is one year or 5 years. In our brief, we argue that the court should apply a one year statute of limitations. This case is an appeal of a circuit court ruling that a 5 year statute of limitations should apply to BIPA claims.

Amicus Brief: InDeck Energy Services, Inc. v. DePodesta, Illinois Supreme Court

We filed an amicus brief with the Illinois Supreme Court. Our brief is filed in support of Illinois Chamber member InDeck Energy Services, Inc. and was drafted by IL Chamber and Tax Institute member law firm Mayer Brown.

InDeck is a privately held Illinois corporation which owns, operates, and develops independent power projects throughout the United States. The factual issues are somewhat complicated, but at the risk of over-simplification, in this case, the defendants while employed by InDeck set up their own company and negotiated an agreement for a power project with another company. The project is something that InDeck would have pursued. InDeck sued the defendants for damages. At issue in the case is the scope of the duty of loyalty employees owe their employer.

In a 4-3 decision, the Illinois Supreme Court ruled against InDeck.

2019 Amicus Program Activities

Amicus Brief: In the Matter of Sierra Club, Environmental Law and Policy Center, Prairie Rivers Network and Citizens Against Running the Environment vs. Midwest Generation, LLC

An amicus brief was filed with the Illinois Pollution Control Board by Illinois Environmental Regulatory Group, an Illinois non-profit corporation affiliated with the Illinois Chamber of Commerce as lead on behalf of a coalition of business associations on October 14, 2019.

The amicus is focused on what we see as the Board’s erroneous interpretation and application of its rules for groundwater management zones (GMZs) in a 3^rd party enforcement action brought against Midwest Generation (NRG Energy) alleging groundwater contamination and other violations of the Illinois Environmental Protection Act.

2018 Amicus Program Activities

Case 123186 / Filed 9/10/18

Amicus Brief: Stacy Rosenbach v. Six Flags Entertainment Corporation ad Great America LLC

Outside counsel prepared a motion for leave to file an amicus brief, and the brief, for filing with the Illinois Supreme Court. The case is an appeal of an Illinois Appellate court determination that under the Illinois Biometric Information Privacy Act (Act) a "person aggrieved by a violation of [the] Act" must allege some actual harm. The court found that a "person aggrieved" by such a violation must allege some actual harm. Unfortunately, the Illinois Supreme Court reversed the appellate court and ruled that a person aggrieved by a BIPA violation does not have to allege any actual harm.

Case 123186 / Filed 9/10/18

Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino and International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO

We responded to an invitation to file briefs before the National Labor Relations Board (NLRB) in this matter. The NLRB has asked for briefs from interested parties on the issue of whether its decision in Purple Communications, Inc., 361 NLRB 1050 (2014) should be modified, adhered to, or overruled. Under Purple Communications, employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system for Section 7-protected communications on nonworking time, unless the employer can demonstrate that special circumstances necessary to maintain production or discipline justify restricting that presumptive right. We contended that the NLRB cannot compel an employer to open its communications systems and property for use by a union. A favorable ruling was received from the NLRB.

2017 Amicus Program Activities

Amicus Brief: Electric Power Supply Association, et al. v Anthony Star et al.

On September 5, 2017, the Illinois Chamber of Commerce filed an amicus brief supporting the position of the plaintiffs in the United States Court of Appeals for the Seventh Circuit. Our brief was accepted for consideration by the court.

Our brief was filed in support of efforts of the plaintiffs, who include Illinois Chamber of Commerce member Dynegy, to overturn the lower court dismissal of the challenge to the Future Energy Jobs Act, P.A. 99-0906. This Illinois legislation, enacted over the opposition of the Chamber, created a zero emission portfolio standard to subsidize the nuclear generating plants operated by Exelon. Unfortunately, the lower court dismissal was not overturned.

Case 122487/ Filed 3-27-18

Amicus Brief: People Ex Rel. Schad, Diamond & Shedden P.C. v. My Pillow, Inc.

The Illinois Chamber of Commerce filed a motion for leave to file an amicus brief with the Illinois Supreme Court in this matter. We retained as outside counsel Illinois Chamber member law firm, Horwood Marcus Berk, to represent the Illinois Chamber of Commerce in the filing of an amicus brief. Our brief was accepted by the Illinois Supreme Court.

This case involves the Illinois False Claims Act and is an appeal of an Illinois appellate court decision in which the court determined that a law firm serving both as client and attorney may not recover statutory attorney fees under the Illinois False Claims Act. In our amicus brief, we urged the Illinois Supreme Court to uphold the decision of the appellate court. Illinois Chamber of Commerce Tax Institute member law firm McDermott Will & Emery represents My Pillow in this matter.

The case was argued before the Illinois Supreme Court on May 22, 2018. During oral arguments, Counsel for My Pillow referred to our brief on a number of occasions in support of My Pillow’s position.

The court ruled in favor of My Pillow and upheld the position we urged the court to take.

2016 Amicus Program Activities

Kakos v. Bauer

The Chamber worked with outside counsel from Chamber member firm SmithAmundsen on a motion for leave to file an amicus brief in support of an appeal of an appellate court decision upholding a change in law that mandated a 6 person jury. Unfortunately, the Supreme Court declined to authorize the filing of any amicus briefs in this case. However, we agree with counsel that by filing of the motion requesting the acceptance of our brief we made the point that 12 person jury is better for the legal and business climate in Illinois.

In Kakos et al. v. Bauer et al. the circuit court held section 2-1105(b) of the Code of Civil Procedure (735 ILCS 5/2 1105(b)), as amended by Public Act 98-1132, infringed on the right to trial by jury, by mandating a decrease in the size of juries from twelve to six.

The case was appealed directly to the Illinois Supreme Court pursuant to Supreme Court rule 302(a) which allows appeals directly from the trial court to the Supreme Court in appeals from final judgments of circuit courts in which a statute of the United States or of Illinois has been held invalid.

The Supreme Court struck down the 6-person jury law, consistent with the arguments put forth in our amicus brief.

Carney v. Union Pacific Railroad Company

The Illinois Chamber was the lead filer in a motion for leave to file an amicus brief with the Illinois Supreme Court in Carney v. Union Pacific Railroad Company on October 30, 2015. The Court granted the motion and accepted the amicus brief. The case was argued before the Illinois Supreme Court, March 16, 2016.

At issue in Carney is whether Union Pacific is liable for an injury sustained by an employee of a subcontractor hired by a contractor hired by Union Pacific. Union Pacific hired the contractor to remove a bridge on its property. The contractor hired the subcontractor for the demolition of the bridge. The circuit court found that Union Pacific was not liable for an injury suffered by an employee of the subcontractor. The appellate court reversed the circuit court determination. Union Pacific appealed the appellate court decision and the Illinois Supreme Court accepted the appeal.

The Supreme Court ruled in favor of Union Pacific adopting the arguments put forth in our amicus brief.

Case 14-0171 / Filed 12-9-15

Motion for Leave to File Amicus Brief

Amicus Brief: Fattah v. Bim

The Chamber joined in a motion requesting leave to file an amicus brief with the Illinois Supreme Court in Fattah v. Bim and Bim. Our amicus brief made the point that the appellate court incorrectly decided the case. The court granted the motion and accepted the amicus brief. The court issued its decision in this case on May 19, 2016

At issue in Fattah, is whether Bim, the owner of Masterklad Inc., a builder of a new home, may be held liable for damages due to the collapse of a patio. Masterklad sold a new home to Lubeck (the first purchaser) and the contract of sale to the first purchaser contained a waiver of the implied warranty of habitability. The first purchaser, Lubeck, sold the home 3 years later to Fattah “as is.” Four months after Fattah’s purchase, the patio collapsed. Fattah sued the Bims alleging a breach of the implied warranty of habitability The circuit court ruled in favor of the Bims finding that Fattah’s claim was barred by the waiver of the implied warranty of habitability entered into when the first purchaser, Lubeck, purchased the home from the builder. Fattah appealed and the appellate court reversed the circuit court. Bim appealed to the Supreme Court.

The Supreme Court reversed the decision of the appellate court agreeing with the point made in our brief that it was improper for the appellate court to extend the implied warranty of habitability to a second purchaser when the warranty had been expressly waived by the first purchaser.

Amicus Brief: Enterprise Leasing Company of Chicago v. City of Chicago

The Chamber worked with outside counsel from Chamber member firm Baker & McKenzie on a motion for leave to file an amicus brief in support of Chamber member Enterprise Leasing Company, in Enterprise Leasing Company of Chicago v. City of Chicago. The Supreme Court granted our motion and accepted our amicus brief.

At issue in Enterprise is the validity of a City of Chicago Tax Ruling that requires automobile leasing companies engaged in short term leases, with locations outside the City of Chicago within 3 miles of the city border, to charge and collect the City of Chicago Personal Property Lease Transaction Tax on rentals to Chicago residents at those suburban locations.

The circuit court ruled in favor of Enterprise finding the Chicago Department of Revenue Ruling unconstitutional on its face by requiring Enterprise to collect the Chicago tax from Chicago residents renting automobiles at suburban locations within 3 miles of the city border. The City appealed and the appellate court reversed the circuit court. Enterprise appealed to the Supreme Court.

Oral arguments were held before the Illinois Supreme Court on September 20, 2016. The Illinois Supreme Court issued their decision on January 20, 2017. The court ruled in favor of Enterprise, adopting the reasoning set forth in the Chamber’s amicus brief.

AMICUS BRIEFS