Chicago Business Litigation Lawyer Blog
Illinois is the busiest forum in the country for consumer class
actions, and the theories change faster than most businesses can track.
A company that believed its exposure was under control discovers a new
statute, a new wave of filings, and a new set of plaintiffs’ lawyers at
the door. The encouraging news for defendants is that the last two years
have also produced real defense victories, and a business that
understands the current landscape can meet these cases from a position
of strength.
Our firm defends businesses against consumer class actions of every
kind, from biometric and genetic privacy claims to website tracking,
telemarketing, consumer fraud, and data breach suits. This post walks
through the developments shaping Illinois class action defense in 2026
and what a business should do when the complaint arrives.
Biometric privacy under BIPA: the exposure just got smaller
For years the Biometric Information Privacy Act, 740 ILCS 14, drove
the largest class exposure in Illinois. In Cothron v. White Castle
System, Inc., the Illinois Supreme Court held that a separate BIPA claim
accrues each time a company collects or transmits a biometric
identifier, which threatened astronomical per-scan damages. The
legislature answered. In 2024, Public Act 103-0769 amended the statute
so that repeated collection of the same identifier from the same person
by the same method is a single violation with, at most, one recovery,
and it confirmed that an electronic signature satisfies BIPA’s consent
requirement. The five-year limitations period from Tims v. Black Horse
Carriers, Inc. still applies. Together these developments sharply
reduced the runaway-damages theory that made BIPA cases so dangerous. In
2026, the Seventh Circuit held in Clay v. Union Pacific Railroad
Co. that the 2024 amendment applies retroactively to cases that were
already pending, because it limits the damages available without
changing the standards of liability, a ruling that pulled the exposure
down in cases filed before the amendment passed.
Genetic privacy under GIPA: the next wave
The plaintiffs’ bar has moved from biometrics to genetics. The
Genetic Information Privacy Act, 410 ILCS 513, carries even larger
statutory damages than BIPA, and a wave of putative class actions now
accuses employers of soliciting family medical history during
pre-employment physicals in violation of the Act. The law here is
unsettled. Illinois courts have not yet given clear appellate guidance
on the scope of the statute, what counts as genetic information, or
whether the per-violation penalties are mandatory. That uncertainty cuts
both ways, and it gives a defendant real room to argue scope, consent,
and damages early, before a class is certified.
Website tracking, pixels, and wiretap claims
A newer wave targets ordinary website technology. Plaintiffs claim
that tracking pixels, session-replay tools, and chat features
“intercept” a visitor’s communications in violation of the Illinois
eavesdropping statute, 720 ILCS 5/14, and the federal Wiretap Act. The
results are inconsistent and depend heavily on the facts and the forum.
The strongest defenses are that a party to a communication cannot
intercept it, that visitors consented, and that the technology provider
was a direct recipient rather than an eavesdropper. Because the law is
developing, the early motion practice often shapes the whole case.
Telemarketing and consumer fraud
Telephone Consumer Protection Act and Illinois Consumer Fraud Act
cases remain steady sources of class filings. The consumer fraud claims
usually rise or fall at class certification, where the requirement that
each plaintiff was actually deceived, and that the deception proximately
caused a loss, makes it hard to prove that common questions predominate.
That certification defense is the heart of a separate discussion on our
blog, and it remains one of the most effective tools a defendant
has.
Data breach and the standing defense
After a breach, plaintiffs file fast, and standing becomes the
battleground. In TransUnion LLC v. Ramirez, the United States Supreme
Court held that a plaintiff must show a concrete injury to sue in
federal court, and that every class member must have standing to recover
damages. Illinois state courts do not impose that same standing
requirement, so plaintiffs often try to stay in state court to avoid it.
That difference makes the early decision about whether to remove a case
to federal court one of the most important moves a defendant makes.
How a business should respond
The pattern across all of these cases is the same. Preserve your
records and put a litigation hold in place the moment a claim is
anticipated. Check for an arbitration agreement with a class waiver that
could route the dispute to individual arbitration. Decide quickly
whether the case belongs in federal court. Attack standing and
predominance from the first filing rather than answering on the merits
and hoping for the best. A consumer class action is built to look
overwhelming on day one, and the defense that is planned early is what
brings the exposure back to earth.
Lawyers who have a consumer class action they do not handle are
welcome to refer or co-counsel with us, and we protect the referring
relationship.
Big-firm firepower, with the partners on your case
Peter S. Lubin and James V. DiTommaso are Chicago business litigation
lawyers who try cases throughout Illinois. Peter is a University of
Chicago Law School graduate who has taught trial practice there for
decades and is an Illinois Super Lawyer. He has served as lead counsel
in more than one hundred class actions and has handled more than one
hundred shareholder, LLC, derivative, breach of fiduciary duty, and
fraud matters on both the plaintiff and the defense side. Crain’s
Chicago Business credited him with the largest class action settlement
of its year, a forty million dollar recovery. The firm has been named
DuPage County Law Firm of the Year, and its lawyers have represented
companies including McDonald’s, Motorola, and Experian and have
litigated against adversaries including AT&T and General Motors.
James DiTommaso is a Chicago-Kent College of Law graduate with a
certificate in business law who served with the Illinois Appellate Court
and argued a case before the Illinois Supreme Court. When you hire this
firm, the lawyers whose names are on the door handle your case.
If your business has been named in a consumer class action, the
sooner you build the defense, the more options you keep. Call DiTommaso
Lubin, P.C. at 630-333-0333 for a free consultation, or contact us
online.