EDITORIAL: White Castle ruling leaves bad taste in business community's mouth

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Feb. 27—But Illinois trial lawyers are singing 'Happy days are here again.'

The Illinois Supreme Court last week issued an ill-advised decision most ordinary mortals won't understand but for its potentially devastating effects.

Who predicted the consequences could be horrendous? None other than new Justice Elizabeth Rochford, who wrote the court's majority opinion that forecast disaster for businesses caught in the crosshairs of the court's ruling.

To be specific, she said the ruling could "authorize damages awards that would result in the financial destruction of a business."

No. 1 on the hit list is White Castle, the popular burger chain that faces "more than $17 billion" in damages.

The issue itself is a manifestation of our complicated high-tech age.

It involves the state's biometric privacy law, passed in 2008. The law bars private entities from collecting a person's biometric data without permission and forbids disclosure of that material.

Starting in 2004, a manager of a Chicago-area White Castle, like all employees, was required to use a "fingerprint scan" to gain "access" to her paystubs and company computer.

"A third-party vendor verified each scan and authorized the employee's access," according to an analysis by Justia.

Because White Castle did not seek employees' consent until 2018, previous scans have been deemed violations of the law that provide for financial compensation.

Needless to say, trial lawyers who are pursuing these claims are drooling in anticipation of milking this new cash cow.

What's one scan worth? Answering that question requires careful examination of the damage sustained, if there is any.

The high court ruled that employers are subject to damages each time an employee submits to a fingerprint scan. In other words, it's a chain of purported privacy breaches that could add up to hundreds or thousands of violations for each employee over long periods of time.

At that rate, damages could add up fast. That's why the lawsuits are piling up — some 1,600 in state and federal courts. In class-action suits involving big-tech companies' use of data from users' photos, Facebook agreed to pay $650 million and Google, $100 million.

The business community is terrified by this kind of financial exposure, to the point that a number of groups that represent them submitted friend-of-the-court legal briefs in support of White Castle.

The court's three dissenting justices made a persuasive point when they challenged the argument that each fingerprint scan constituted a violation of the employee's privacy. Justice David Overstreet contended that "there is only one loss of privacy, and this happens when the information is first obtained."

Because that argument was not a majority viewpoint, disaster looms.

Justices on both sides of the issue called for legislators to revise the law, concluding that "imposing punitive, crippling liability on businesses could not have been the goal" of the law.

One never knows with our Legislature. But it's more likely to assume that many members of the Illinois House and Senate had no clue about the ramifications of the law they approved, while at the same time, those who actually wrote it knew exactly what was up.

What happens next? Who knows?

Given the fact that trial lawyers are a key constituency of and generous donors to supermajority Democrats in Springfield, the business community can't expect much positivity from Springfield.

It's a virtual certainty trial lawyers don't want to destroy targeted businesses. But it's equally likely they wish to keep them healthy enough to extract huge liability payments from them.

Either way, it's a wretched situation, but par for the course in Illinois.