The world’s largest retailer, Walmart, has agreed to pay $10 million to put to rest a class action lawsuit, accusing it of violating an Illinois biometrics privacy law in the way it set up a hand palm-scanning system to allow workers at its Illinois stores to access a secure room for changing out cash register drawers.
On Dec. 14, Cook County Judge Pamela Meyerson signed off on the deal, announced in documents filed in Cook County Circuit Court. Meyerson is expected to consider final approval of the deal later this spring, after potential class members are notified of their chance to claim a share of the award.
Zachary Flowerree
| Werman Salas P.C.
Lawyers for the plaintiffs would be allowed to request fees of more than $3 million, or up to one-third of the total settlement payout. Plaintiffs have been represented by attorneys Zachary C. Flowerree, Douglas Werman and Michael M. Tresnowski, of the firm of Werman Salas P.C., of Chicago.
The lawsuit estimates class members could receive from $460 to $756 each, depending on how many of the estimated 21,677 class members file valid claims for a share of the money. The class of plaintiffs eligible for a cut of the funds include anyone who worked at a Walmart store in Illinois from January 2014-February 2018, or at an Illinois Sam’s Club store from January 2014-April 2019, and who used a hand palm scanner to use Walmart’s so-called “cash recycler system” during that time.
The settlement came despite notes included in the motion for settlement that indicated Walmart may have been able to defeat the lawsuit. According to the motion for settlement, Walmart began complying with the terms of the Illinois BIPA law in 2017. Employees were never required to use the palm scanner, as they could have gained access to the cash register drawer recycling room using individual numeric codes, as well, according to the motion.
Further, Walmart stopped using the palm scanner system altogether before the lawsuit was filed, the motion said.
“In this context, the plaintiff believes he would have been unable to show that Walmart knowingly disregarded BIPA’s requirements,” plaintiffs’ lawyers wrote in a footnote attached to the motion.
The lawyers from Werman Salas filed the lawsuit in late January 2019, on behalf of named plaintiff Ethan Roach.
According to the complaint, Roach, of Madison County, near St. Louis, had worked at Walmart’s store in downstate Litchfield in various roles from early 2016-September 2017.
Among his roles, Roach allegedly was required to handle cash register drawers. However, when retrieving and returning those drawers, Roach and other similar employees were required by Walmart to scan their handprints.
The lawsuit acknowledged the biometric security procedure allows Walmart to better secure its cash registers and ensure only designated employees can handle the money-filled drawers.
However, Roach’s class action claimed the scans are still illegal under the Illinois BIPA law because Walmart did not first obtain written consent from Roach and other workers before scanning their handprints, and did not provide workers with written notices concerning how their biometric data would be collected, stored, used, shared and ultimately destroyed. They assert these notices and authorizations are required by the Illinois BIPA law.
The lawsuit against Walmart was one of hundreds filed by trial lawyers under the BIPA law against employers of all sizes and types in Cook County and elsewhere in the state.
The lawsuits rapidly proliferated after the Illinois Supreme Court ruled in 2019 that plaintiffs don’t need to prove they were ever actually harmed by the technical violations of the law. The violation of any provision in the law is a substantial enough injury to justify potentially massive class actions worth millions, or even potentially billions of dollars, the Illinois Supreme Court ruled.
Employers targeted by BIPA-related class action lawsuits have found the suits difficult to dismiss, as courts have routinely shot down a range of defenses under a variety of theories.
Walmart, for instance, had argued the BIPA law ran afoul of protections under the Illinois state constitution. Judge Meyerson broke down that defense, among others raised by the retail giant, in a decision in October 2019, denying Walmart’s motion to dismiss.
According to court documents, settlement negotiations began in earnest in April 2020, and continued until the settlement was presented to the court in early December.
Walmart has been represented in the action by attorneys with the firm of Steptoe & Johnson LLP, of Chicago.