Class action: Local L.A. Tan franchisee must pay for storing client fingerprints, despite similar suit vs national brand

By Scott Holland | Apr 12, 2016

While already pursuing a class action complaint against nationwide tanning salon franchiser L.A. Tan, an Illinois woman has lodged a second complaint against its Schaumburg franchisee, alleging the franchise business owner should be made to pay, as well, for collecting, storing and sharing customers’ fingerprints when enrolling them in L.A. Tan’s customer rewards program.

On Nov. 13, 2015, Klaudia Sekura had filed a complaint in Cook County Circuit Court against L.A. Tan Enterprises. On April 7, she followed that up with a class action complaint in Cook County court against one of L.A. Tan’s Chicago area franchisees, identified as Krishna Schaumburg Tan.

While conceding many facts in both cases overlap, Sekura’s complaint against Krishna Tan insists Krishna’s liability to Sekura should be separate and distinct from the liability asserted against L.A. Tan in general. The complaint, however, does not elaborate on the differences.

The issue in both lawsuits is L.A. Tan’s national membership database, which uses fingerprint scans to identify its customers and allow them to use their memberships at any franchise location, ostensibly to make it easier for customers to check in when they return. Sekura argued the keeping of fingerprint data violates Illinois’ Biometric Information Privacy Act because Krishna Tan discloses fingerprint data to SunLync, an out-of-state, third-party vendor.

Further, she alleged Krishna Tan fails to provide BIPA-compliant written notification to customers about the data collection, as well as a retention schedule and guidelines for permanent destruction of fingerprint data should the business fail. The chain also does not obtain written releases from customers consenting to collection, capture and use of fingerprints, Sekura alleged.

Sekura opened her L.A. Tan membership in April 2005. Sekura’s complaint noted the Illinois BIPA law was spurred by the 2007 bankruptcy of Pay By Touch, a biometrics firm that provided fingerprint scanners to retailers throughout Illinois, saying the bankruptcy served as evidence of the dangers of unregulated biometric collection. With more than 65 percent of L.A. Tan salons in foreclosure — a figure attributed to a 2013 report — she said the future of the biometric information collected by L.A. Tan and its franchisees is in peril.

“Sekura experiences mental anguish and injury when thinking about what would happen to her biometric data if Krishna Tan goes bankrupt,”or if L.A. Tan goes bankrupt, the complaint noted, and “whether Krishna Tan will ever delete her biometric data, and whether (and to whom) Krishna Tan shares her biometric data.”

The class would include any Illinois resident who supplied a fingerprint to Krishna Tan. In addition to class certification and a jury trial, Sekura seeks an injunction requiring Krishna Tan to fully comply with BIPA regulations, statutory damages of $1,000 for each BIPA violation, plus attorney fees. Arguing unjust enrichment, she also asked the court to order restitution be calculated at trial. She also argued the company’s conduct constituted negligence entitling class members to restitution.

While Krishna Schaubmurg Tan is the sole named defendant, the suit also names as respondents in discovery about two dozen other suburban L.A. Tan franchise operators.

Representing Sekura and putative class members are attorneys Jay Edelson and David I. Mindell, of Edelson PC, Chicago; and Todd Logan, of the firm’s San Francisco office.

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