One of the country’s largest providers of employee timekeeping technology has pushed back on an attempt by a group of plaintiffs’ lawyers to force them to turn over their entire list of customers, saying the information is being sought to identify a host of other employers to target with class action lawsuits using Illinois’ stringent biometrics privacy law.
Earlier this month, attorneys for Kronos Inc. asked a judge to cut short the sweeping discovery sought by some of Chicago’s most prominent class action lawyers, who have teamed up to pursue a sprawling class action under the Illinois Biometric Information Privacy Act against the Lowell, Mass.-based vendor of workforce management tech
“It is alarming – and revealing of their true intent – that Plaintiffs have not foreclosed the possibility that they will use discovery generated from Kronos’ customer list to enable them to bring new lawsuits against more Kronos customers,” Kronos’ lawyers wrote in their Sept. 14 brief. “The potential for abuse of the class action mechanism provides another reason to deny Plaintiffs’ motion.”
J. Eli Wade Scott
| Edelson P.C.
The filing came in reply to a motion filed by the plaintiffs, asking U.S. District Judge Gary Feinerman to order Kronos to turn over large amounts of its company information, including lists of employer clients who have installed and operated so-called biometric time clocks. The devices typically scan employee fingerprints to verify their identity when they punch in and out of work shifts.
The plaintiffs’ lawyers said current or potential lawsuits against other employers who use Kronos technology should have no bearing on their request.
“The definition of the class does not turn on the relevant person’s employer being sued, nor does the viability of their BIPA claim,” the plaintiffs’ lawyers wrote. “Plaintiffs are not trying to certify a class of individuals whose employers have been sued - they are trying to certify a class of individuals whose fingerprints were collected by Kronos.”
The court filings exchange marks the latest step in a years-long legal fight between Kronos and the plaintiffs’ firms, Edelson P.C. and Stephan Zouras LLP, both of Chicago.
The Edelson and Stephan Zouras lawyers filed suit against Kronos in early 2019. The class action lawsuit accuses Kronos of wrongly collecting the scanned fingerprints or other biometric information of workers at employers throughout the state for years.
According to the lawsuit, Kronos was obligated by the Illinos BIPA law to first obtain written consent from every worker in Illinois whose employer requires them to use Kronos’ devices when punching the clock, and also provide notice to all those workers concerning how Kronos might store, use, share and ultimately destroy any fingerprint or biometric scans.
The lawsuit asks the court to order Kronos to pay damages of $1,000-$5,000 per violation, which many parties involved in such lawsuits have said could be defined as each time a worker either punched in or out of work or a break.
This could leave Kronos exposed easily to many millions of dollars in damages, if not billions.
When it was filed, the lawsuit marked a departure from the typical pattern established to that point for class actions filed under BIPA. Those lawsuits had typically targeted the employers using biometric timekeeping devices.
Kronos, and many of its competitors had been targeted as co-defendants in those actions. Instead, the Edelson and Stephan Zouras firms decided to directly Kronos on behalf of all workers in Illinois who have scanned a fingerprint on Kronos timeclocks, no matter who their employer might be. Meanwhile, they and other plaintiffs’ firms in Chicago and elsewhere have also continued to target the employers directly, as well.
To date, hundreds of such lawsuits have been filed in Cook County and elsewhere in Illinois in the last few years. In its brief, Kronos noted it has alone analyzed more than 760 such class action lawsuits filed against employers in the state under the BIPA law.
Kronos has called the lawsuit "gamesmanship" by the plaintiffs' lawyers, and has argued it cannot be held accountable for the actions of employers who purchase and deploy the tech it creates.
However, the lawsuit, to date, has survived Kronos’ efforts to persuade the judge to dismiss it. The case has now proceeded to the discovery phase, in which the two sides exchange information and use evidence they uncover to boost, refine and potentially expand their arguments.
Earlier this summer, the plaintiffs’ lawyers filed a motion to compel Kronos to produce a range of information at discovery. Kronos has resisted those information requests.
According to court documents, plaintiffs have asked Kronos to turn over all “information it had about timeclocks that were being used in Illinois.” The list of information could include “shipping and billing addresses” for clients who purchased Kronos devices, as well as “IP addresses of the timeclocks themselves, or the Virtual Private Network that the timeclock data is routed through.”
The plaintiffs also asked Kronos to divulge information concerning “how it identified its Illinois-based customers when it previously communicated with them about BIPA.”
Kronos said the information request is too broad.
In reply, they offered information culled from a sampling of 50 Kronos customers – notably, those who have already been targeted by BIPA class action lawsuits by Edelson, Stephan Zouras and other trial lawyers.
Kronos claims employers are the ones who install and use the timekeeping devices, and Kronos does not track “where, or even if, customers are using them.”
“… Kronos does not possess a list identifying which customers are using Kronos timeclocks and Idemia fingersensor devices in Illinois, and Kronos cannot produce information that it does not possess,” Kronos asserted.
Kronos said the sweeping information sought by the plaintiffs’ lawyers isn’t needed for them to press their case, but is being requested simply to force Kronos “into exposing its trade secret customer list, whether it can be tied to Illinois or not.”
They said the plaintiffs’ ultimate goal is to “abuse” the discovery process in the Kronos lawsuit, turning it into “an impermissible ‘fishing expedition’” to tee up a new wave of class action lawsuits against those who have purchased Kronos technology.
The plaintiffs’ lawyers deny the allegation. But they said, the court should disregard it, because the threat of future lawsuits is not relevant.
“To be clear: that is not why counsel are trying to get this information…,” Edelson attorney J. Eli Wade Scott wrote in the plaintiffs' brief on Aug. 17. “To the extent that discovery in this case will identify customers who have broken the law, however, Kronos has not explained why that is a relevant interest that the Court is supposed to balance…”
Kronos is represented in the action by attorneys Melissa A. Siebert and Erin B. Hines, of the firm of Shook Hardy and Bacon LLP, and Debra Bernard, of the firm of Perkins Coie LLP, both of Chicago.