A federal judge has refused to allow sandwich chain Pret a Manger to pause a class action lawsuit, saying he believed the Illinois Supreme Court is unlikely to do anything that would undermine the biometrics privacy law that spawned that class action, along with similar suits against thousands of other Illinois employers.
On April 26, U.S. District Judge Manish Shah ruled in favor of a former Pret a Manger worker, who is serving as the named plaintiff in the class action, under the Illinois Biometric Information Protection Act (BIPA), against the United Kingdom-based restaurant chain.
Pret a Manager operates 12 locations in Illinois, all in Chicago.
U.S. District Court Judge Manish S. Shah
| law.uchicago.edu
The lawsuit was filed in November 2020 in Cook County Circuit Court by attorneys Keith J. Keogh and Gregg M. Barbakoff, of Keogh Law Ltd., of Chicago. The lawsuit was filed on behalf of named plaintiff Kayla Quarles, identified as a former Pret A Manger employee, who worked at one of the chain’s Chicago locations for about a year, ending in 2019.
The lawsuit seeks to expand the action to include virtually all Pret A Manger employees who worked at its Chicago restaurants in the past five years.
The class action asserts Pret A Manger improperly required its workers to scan their fingerprints when punching in and out of work shifts. Specifically, the lawsuit accuses Pret A Manger of failing to secure written authorization from the workers before requiring such fingerprint scans, and of failing to provide workers and the public with certain notices required by the law, explaining why Pret A Manger was requiring the fingerprint scans, and what it would do with the scanned biometric identification data.
The lawsuit was virtually identical to thousands of similar lawsuits filed in recent years against employers of all sizes and types in Cook County and other Illinois courts. The class actions seek damages of $1,000-$5,000 per violation, as allowed by the BIPA law. The law has been interpreted to define individual violations as each time an employee scans their fingerprints, raising the possibility of potentially massive damages imposed against employers, should a case go to trial.
Faced with such risk, a number of employers and other targets of BIPA-related class action suit have begun to settle, with agreements costing hundreds of thousands or millions of dollars.
However, in recent weeks, some judges have agreed to place some BIPA class actions on hold, granting motions to stay proceedings. Defendants in those cases have asserted two class actions making their way to either the Illinois Supreme Court or the U.S. Seventh Circuit Court of Appeals will clarify some key legal questions surrounding the law.
These include questions of how many years can elapse before a lawsuit under BIPA can no longer be brought, and whether BIPA-related class actions against employers are barred by Illinois’ t compensation law.
Judge Shah, however, declined to let Pret A Manger use those pending cases pause the class action they face, despite the potential for those forthcoming decisions to upset much of the structure under which most BIPA class actions have been filed, to this point.
The judge said he doubted the Illinois Supreme Court would take any real action to limit the scope of the law.
In 2019, for instance, the Illinois Supreme Court gave the green light to a blizzard of class actions under the BIPA law, by declaring plaintiffs didn't need to prove they suffered any real harm from companies that violated the BIPA law - such as, through a data breach or increased risk of identity theft - before bringing potentially massive class action lawsuits.
“Predictions can be wrong, but I predict that the Illinois Supreme Court will follow its established test for accidental and compensable injuries and not carve up BIPA into a partially preempted statute,” Shah wrote in his April 26 opinion.
He further predicted another case, addressing the question of the statute of limitations, would likely have no bearing on the lawsuit faced by Pret A Manger. In this instance, he said, Quarles is not accusing Pret A Manger of actually mishandling her information. Rather, the lawsuit centers on the restaurant chain’s alleged failure to abide by technical notice and consent provisions.
So, Judge Shah said, Illinois’ general one-year statute of limitations for injury-related lawsuits don’t apply, because Pret A Manger is not accused of harming Quarles or other workers in any actual, concrete way.
Shah further predicted the Illinois Supreme Court would apply a “catchall” five-year statute of limitations to BIPA-related claims, further clearing Quarles’ class action to continue against Pret A Manger.
Pret A Manger is represented in the action by attorneys Jamie L. Filipovic and Matthew E. Szwajkowski, of the firm of O’Hagan Meyer LLC, of Chicago.