CHICAGO — A federal judge authorized a final settlement ending a Biometric Information Privacy Act class action against the company that operates the Nando’s Peri-Peri Chicken restaurant chain.
A group of more than 1,400 current and former Nando’s employees claimed restaurant owners illegally required workers to scan fingerprints when punching the clock at work. On Oct. 28, Judge Sara Ellis approved a $1.787 million settlement, which works out to a gross sum of $1,000 per class member.
Although a preliminary approval in June indicated the plaintiffs’ three attorneys would earn $470,000, the final deal resulted in the lawyers collecting more than $595,000. The change is attributed to the growth in class size — as over the summer the sides agreed a net 360 people had been excluded from the initial class list — but does not represent an increased percentage of the overall settlement fund.
The Fish Law Firm, of Naperville, represented named plaintiff Katherine Martinez and the class of additional plaintiffs. According to a memorandum filed Oct. 26 in support of final approval, Nando’s inadvertently omitted 372 workers from its class list “due to an archiving issue in its payroll system.” After comparing the initial and revised lists, a settlement administrator found 11 duplicate and two insufficient addresses, resulting in only 360 additional names, which increased the pool from its initial $1.427 million.
Fish filed the lawsuit in September 2019. Attorneys David Fish, John Kunze and Mara Baltabols worked on the case.
The lawsuit alleged South Africa-based Nando’s, which specializes in Portuguese-style food, and particularly, the dish known as Peri-Peri chicken, violated BIPA by making employees use a fingertip scanning device without following the law’s notice and consent requirements. Martinez and Nando’s started settlement negotiations in November 2019.
“The settlement here comes at a particularly difficult time,” Fish wrote. “As a result of the COVID-19 pandemic, many in the restaurant business are out of work and the payments will hopefully provide class members with needed assistance.”
Fish further noted the individual payments substantially exceed other privacy settlements, some of which resulted in class members getting “pennies” while others under BIPA resulted only in free credit monitoring or required members to file claims to obtain relief.
The class includes people who worked at Nando’s Illinois locations from May 20, 2015, through Oct. 1, 2019. Each worker should get two checks sent 18 months apart worth a total of $652. Class members don’t have to file claim forms, the checks will be mailed automatically. Fish explained the staggered distribution spreads the impact for Nando’s across two fiscal years “in consideration of defendant’s financial situation in general and with COVID-19 in particular.”
Fish noted Nando’s provided financial information and allowed the firm to interview its chief financial officers as a means of establishing the settlement was “at the high-end of the range” of Nando’s ability to pay. As of 2019, the chain had 1,000 restaurants worldwide, including eight in Chicago and four more in the suburbs.
Court documents showed Nando’s denied wrongdoing, and Fish noted the company “had defenses and arguments it intended to raise,” while also explaining state appellate courts haven’t resolved questions about statutory limitations under BIPA. As such, Fish said, “the settlement offers substantial value relative to the strength of plaintiff’s case.”
Analytics Consulting, of Eden Prairie, Minn., will administer distribution of the settlement, which includes tax reporting.
Nando's has been represented in the case by attorneys with the firm of Littler Mendelson P.C., of Chicago and St. Louis.