Speedway worker fingerprint scan lawsuit heads back to Cook County court; Judge: No harm to plaintiff

By DM Herra | Jun 8, 2018

A lawsuit that claims Speedway gas stations didn’t follow state law in collecting employee fingerprints is back in state court, after a federal district court denied Speedway’s motion to dismiss - while at the same time agreeing that the plaintiff suffered no injury.

The class action suit was brought against Speedway LLC and its parent company, Marathon Petroleum Co., by former employee Christopher Howe. According to court documents, Speedway employees clock in and out of their shifts using a fingerprint scanner. At the beginning of Howe’s employment, he said he was required to scan his fingerprint so the system could authenticate his identity and track his time.

In his suit, Howe argues Speedway violated Illinois’ Biometric Information Privacy Act (BIPA) in the way it gathered and stored the fingerprints. Speedway removed the suit to federal court and moved to dismiss; Howe claimed that the same arguments the company used to support its motion to dismiss undercut the federal court’s ability to hear the case and moved to remand it to Cook County Circuit Court.

In moving to dismiss, the company argued Howe failed to state a claim because he could not show he had suffered any real injury from the BIPA violation. However to have standing in federal court, a plaintiff must have suffered an injury traceable to the defendant’s conduct and likely to be redressed by a favorable jury decision.

Andrew Ficzko  

“Procedurally, Howe finds himself in an awkward position,” U.S. District Court Judge Andrea R. Wood wrote. “To succeed in his lawsuit, he must establish that he is a ‘person aggrieved’ who has statutory standing to assert a cause of action under BIPA. However, if he has a cognizable injury under BIPA, then it follows he also has constitutional standing and must proceed in a disfavored forum.”

Howe extricated himself from the sticky situation by not taking any position on the question of standing. Instead, he argued the defendant was responsible for establishing the court’s jurisdiction at the time the case was removed.

“To avoid remand, defendants find themselves having to establish that Howe has suffered a sufficient injury for purposes of (constitutional) standing even as their motion to dismiss vigorously contests the adequacy of his injury for purposes of statutory standing,” the judge wrote.

In what might seem like a victory for the defendants, Wood agreed Howe’s alleged injuries likely do not constitute injuries-in-fact. However, that decision means the federal court has no jurisdiction and cannot grant Speedway’s motion to dismiss.

Howe’s suit alleged three injuries – mental anguish over uncertainty about what Speedway might do with his biometric data, invasion of privacy and information injury. Wood called the mental anguish claim a “conjectural or hypothetical injury” that could not be used to establish standing and said the privacy claim failed because there was no indication Speedway had released employees’ biometric data to anyone.

The only possible injury-in-fact, the judge wrote, was the informational injury – the claim that Speedway did not provide the written disclosures required under BIPA when it scanned his fingerprints. And even that claim, she said, falls flat. While Speedway “undoubtedly violated BIPA” if it truly failed to provide the required disclosures and obtain Howe’s written consent, the violations did not cause Howe any injury.

“Howe’s fingerprints were collected in circumstances under which any reasonable person should have known that his biometric data was being collected,” she wrote.

Without an injury, Howe does not have standing to have his claim heard in federal court, so Wood granted his motion to send the case back to the state court.

Howe is represented by attorneys Andrew C. Ficzko, James B. Zouras and Ryan F. Stephan, of the firm of Stephan Zouras LLP, of Chicago, and Christopher L. Dore, Benjamin H. Richman, Sydney M. Janzen and Alexander G. Tievsky, of the firm of Edelson P.C., of Chicago.

Speedway is represented by attorneys Gary M. Miller, Patrick J. Castle, Tristan L Duncan, Anna S. Knight and Alfred Saikali, of the firm of Shook, Hardy & Bacon LLP, of Chicago.

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Organizations in this Story

Circuit Court of Cook County Edelson, PC Shook Hardy & Bacon LLP Speedway LLC Stephan Zouras LLP U.S. District Court for the Northern District of Illinois

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