The parent company of supermarket chain Jewel-Osco has asked a state appeals court to weigh in on the question of whether an Illinois biometrics privacy law that has spawned hundreds of class action lawsuits is actually unconstitutional.
On Feb. 24, attorneys for New Albertsons Inc. filed a motion in Cook County Circuit Court, asking a judge to send two thorny legal questions concerning the law, known as the Biometric Information Privacy Act, up to the Illinois First District Appellate Court.
Specifically, the company wants the appeals court to weigh in on:
David S. Almeida
| Benesch Friedlander Coplan Aronoff
- Whether the law unconstitutionally exempts a broad swath of companies grouped under the heading of “financial institutions;” and
- Whether pharmacists and other health care workers should be considered exempt from the BIPA law’s provisions, because of the federal privacy safeguards contained in the Health Insurance Portability and Accountability Act (HIPAA).
Jewel’s corporate parent said the need to answer these questions is pressing, noting different judges are answering the questions differently, contributing to confusion and uncertainty from courtroom to courtroom handling such class action cases, with potentially many millions of dollars on the line in each case.
“There have been, as of the date of this filing, approximately 500 BIPA class actions in the last two years, over 30 of which have been brought against the healthcare industry, including hospitals, long term care centers and pharmacies,” Albertsons wrote in its brief. “Immediate review is also appropriate because, when pursued as a class action, the BIPA comes attendant with alarming statutory damages of up to $5,000 per violation.
Illinois courts are thus not only flooded with BIPA cases, but have recognized an acute need for clarity in this area.”
Albertsons has contested the class action lawsuit since 2018, when Osco pharmacist Gregg Bruhn first filed the lawsuit. He has been represented by attorneys from the firm of Stephan Zouras LLP, of Chicago, a firm that is responsible for a large number of the hundreds of lawsuits filed under the BIPA law against a wide range of companies.
The lawsuits have piled up in recent years. Plaintiffs’ lawyers have claimed they are bringing the actions to defend individual privacy rights.
Companies being sued, however, have noted the law also promises plaintiffs a potentially easy payday, as the Illinois Supreme Court has ruled plaintiffs are free to demand damages of $1,000-$5,000 per violation, yet never have to prove they were ever actually harmed by an alleged violation of the law.
Attorneys for both plaintiffs and defendants in such cases have interpreted the law’s provisions to define a violation as each time a defendant allegedly scans or stores the biometric information of an individual without their written consent or without providing written notice concerning how the information will be used, stored, shared and ultimately destroyed.
In the bulk of the hundreds of cases pending in Cook County court and other Illinois court systems, the lawsuits have targeted employers for requiring workers to scan fingerprints either when punching the clock for work shifts each day, or when accessing secured areas or sensitive systems.
In the case against Albertsons, plaintiff Bruhn asserted Jewel-Osco wrongly required him to scan his fingerprint to prove his identity when accessing patients’ sensitive information protected by the federal HIPPA privacy safeguards.
Albertsons asked Cook County Judge Anna Loftus to dismiss Bruhn’s lawsuit.
The company noted the law includes exemptions for biometric information collected for health care purposes under HIPAA. While the law specifically exempts patients from being able to sue under BIPA, Albertsons and other health care service providers have argued those exemptions should be extended to pharmacists and other health care workers, as well, who are all under the mandates of the federal HIPAA law.
Albertsons also has argued the BIPA law should be unconstitutional. Specifically, the company said the law includes a provision exempting companies defined as “financial institutions.”
Albertsons says this exemption should kill the law, as it runs afoul of constitutional prohibitions on special legislation targeting or benefiting only specific individuals or businesses.
Albertsons noted courts and regulators have defined financial institutions to include not just banks, brokerages and credit unions, but also car dealers, property appraisers and career counselors.
The “breadth” of those potentially exempted by the law would also easily stretch to include companies who provide biometric authentication services to financial institutions, even though the BIPA law was specifically was passed in 2008 in reaction to the bankruptcy of Pay By Touch, a company providing biometric authentication services for financial transactions.
Albertsons asserted this exemption essentially turns the BIPA law on its head, excluding the very industry that inspired the BIPA legislation in the first place, and granting a wide array of companies a “unique benefit.”
“Here, the statute’s goal is to address the ‘risks posed by the growing use of biometrics by businesses and the difficulty in providing meaningful recourse’ post-compromise,” Albertsons wrote. “With that goal in mind, the exclusion of the financial industry … addresses concerns having no relation to the goals at hand.
“This is particularly so given consumer apprehension over biometrics tied to financial information motivated the passage of the BIPA.”
Judge Loftus on Jan. 30 rejected Albertsons arguments, setting the stage for the appeal. She did not deliver a written ruling.
However, Albertsons noted the courts have answered the questions at hand differently, and still more defendants are taking up the arguments in their cases, as well.
So, Albertsons argued the questions require an answer from a higher court to resolve the questions.
Should the appeals courts side with Albertsons on the questions, it would effectively end a wide swath of BIPA class actions, they noted. They said defendants “should not have to wait until judgment,” risking damages worth many millions of dollars, to have the questions permanently answered, “particularly where it could end the case,” Alberstons wrote.
Albertsons is represented in the case by attorney David S. Almeida and others with the firm of Benesch Friedlander Coplan & Aronoff LLP, of Chicago.