The plaintiff in a putative class action suit accusing the bakery company which puts out the Otis Spunkmeyer and La Brea Bakery brands of violating an Illinois biometric privacy law by not telling workers how their fingerprints were handled, is now claiming the company is refusing to pay a portion of the plaintiff's legal costs, as ordered by a federal judge.
On Aug. 17, Jamel Barnes filed a class action in Cook County Circuit Court against Aryzta, a Switzerland-based global company that makes and distributes baked goods at stores in the Chicago area and throughout the U.S. Aryzta transferred the suit to Chicago federal court, then it was sent back to state circuit court, with a judge ordering Aryzta to pay Barnes' legal costs.
Barnes worked at the Aryzta facility in suburban Romeoville from 2014 to 2015. As an employee, Barnes said he was required to scan one of his fingerprints into the company's database, which was to serve as his identification for clocking in and out of work, as well as for other job-related purposes.
However, Barnes alleged Aryzta didn't furnish him a written explanation as to who was collecting and storing his print, how long the print would be kept and how it would be disposed if he left the job. These notices and information are required under the Illinois Biometric Information Privacy Act. In seeking class-action status, Barnes' attorneys said there could be hundreds of other plaintiffs.
Barnes wants Aryzta to pay as much as $1,000 per violation, plus legal fees, and to comply with the biometric law.
Aryzta denies wrongdoing.
The suit was filed in Cook County Circuit Court, but Aryzta moved the matter in October to federal court, citing the U.S. Class Action Fairness Act. The CAFA law allows such transfer when a class action involves more than $5 million and any plaintiff is from a different state than the defendant.
Aryzta, however, then filed a motion for dismissal, arguing Barnes had no standing to pursue a federal suit, because he had not been injured under federal law, pursuant to the 2016 U.S. Supreme Court ruling in Spokeo Inc. v. Robins. The motion was later withdrawn, but Barnes latched on to the filing as reason the case should go back to circuit court.
U.S. District Judge Thomas Durkin agreed with Barnes.
Durkin found the matter boiled down to Aryzta saying federal court had jurisdiction, then saying, in the withdrawn motion, federal jurisdiction did not apply. When faced with this contradiction, Aryzta maintained it was not saying federal jurisdiction did not apply, but that it remains to be seen whether that jurisdiction applies.
Durkin concluded he would not decide the jurisdiction issue, because neither party wanted to address it.
“On the one hand, Plaintiff seeks remand to the state court and therefore does not want to argue to this Court it has sustained a concrete injury-in-fact because then it would be conceding subject matter jurisdiction in federal court,” the judge said.
“Defendant, on the other hand, would like to argue that Plaintiff has not sustained an . . . injury but has withdrawn any argument to that effect in a ploy to avoid being forced out of federal court. The difference between the two parties is that Plaintiff does not have to take a position on the standing issue while Defendant does, because Defendant bears the burden of establishing jurisdiction in this Court,” Durkin said.
In any event, Aryzta accepts jurisdiction is “unsettled,” which means the case returns to state circuit court, because “any doubt regarding jurisdiction should be resolved in favor of the states,” Durkin noted, in quoting a 1993 ruling by the U.S. Court of Appeals for the Seventh Circuit.
Durkin granted Barnes request that Aryzta pay the $18,800 in legal fees Barnes' attorneys say they racked up litigating the jurisdictional question.
However, in court papers filed Jan. 25, Barnes alleged he has repeatedly asked Aryzta to pay, but the company has refused.
On Jan. 29, Aryzta's lawyers asked the judge to reconsider the attorney fee decision, and put a hold on the plaintiff's attempt to collect the fees.
Aryzta is defended by the Chicago firm of O'Hagan Meyer LLC.
Barnes is represented by Edelson PC, of Chicago, and The Fish Law Firm, of Naperville.
In recent months, the Edelson firm has been part of a growing number of lawsuits targeting employers and retail businesses under the biometric law, ranging from social media titan Facebook for allegedly violating users’ privacy rights by tagging photos of them without consent, to employers like Aryzta and nursing homes for allegedly violating their employees’ privacy rights.
In the past year, other firms have launched similar suits against a still greater range of employers, including the parent company of the Mariano’s supermarket chain, the Intercontinental Hotel Group, Southwest Airlines, American Airlines, Hilton Hotels, Wyndham Resorts, Hooters and Abra Auto Body, among others.