CHICAGO — A Cook County judge refused to junk a biometrics class action despite the defendant’s insistence the potentially massive damages should be considered unconstitutional excessive fines.
Seyon Haywood sued his former employer Flex-N-Gate Plastics, an Urbana-based auto parts manufacturer, in November 2019, alleging the company’s fingerprint scanning system violated the Illinois Biometric Information Privacy Act, because the company never obtained written consent for the collection and storage of his personal data, nor did it document its data retention policy.
The class action seeks damages of $1,000 to $5,000 for each employee fingerprint scan. In arguing for dismissal, Flex-N-Gate said the aggregate sum would be “so fundamentally excessive that it violates the Eighth Amendment,” according to an April 8 opinion from Judge Celia Gamrath.
David Fish
| Fish Law Firm
However, Gamrath continued, liquidated damages under BIPA are neither a fine nor a penalty subject to Eighth Amendment protection. Typically, she added, such laws are challenged under the 14th Amendment’s due process clause.
“Liquidated damages paid to an aggrieved private party are not a fine,” Gamrath wrote. “Generally, they do not serve as punishment. Rather, they serve to compensate an aggrieved party where actual damages are difficult to ascertain or prove. They may also serve to incentivize private parties to enforce BIPA and encourage private businesses to comply. But regardless, they clearly serve more than a punitive purpose and are not the same as a fine or penalty paid to the government.”
Gamrath agreed with Haywood’s position BIPA’s purpose “is remedial, not penal,” in that it is intended to establish a regulatory framework to protect personal privacy. She also pointed to a 2019 Illinois Supreme Court opinion in Rosenbach v. Six Flags, which she said established BIPA violations “are not mere technicalities; there is a real and significant injury to those aggrieved,” and also that “the legislature intended the liquidated damage provisions in BIPA to have substantial force.”
Flex-N-Gate also sought dismissal by arguing BIPA creates arbitrary classifications by arbitrarily exempting employers like financial institutions and government contractors. Gamrath said those exceptions don’t run afoul of the state’s Special Legislation Clause and noted Haywood’s “response brief sets forth a myriad of reasonable bases as to why the legislature distinguished between certain business entities in BIPA.”
Gamrath did not consider Flex-N-Gate’s argument the Illinois Workers’ Compensation Act has an exclusivity provision barring Haywood’s BIPA claims because that question is central to an ongoing appeal from the owners of a nursing home on Chicago’s South Side. In that case, the nursing home wants the Illinois Supreme Court to overturn a state appeals court’s ruling in favor of workers also connected to a fingerprint scan time clock.
The defendant in that action, the corporate entity that operates the Symphony of Bronzeville nursing home, is basing its arguments on a provision in the workers’ comp law declaring the statute “preempts any ‘statutory right to recover damages from the employer … for injuries incurred in the course of … employment.”
The Supreme Court agreed on Jan. 27 to hear that appeal.
Gamrath set a status hearing on Haywood’s lawsuit for Aug. 23, and held in abeyance a deadline for Flex-N-Gate to answer the amended complaint until there is a ruling in the Symphony lawsuit.
Representing Haywood are attorneys David Fish, John Kunze and Mara Baltabols, of Fish Law Firm in Naperville.
Flex-N-Gate is represented by attorneys from the firm of Thompson Coburn, of Chicago.