More than 2,600 people who have worked at TopGolf entertainment centers in Illinois could be in line for payouts of more than $600 each under a deal to end a class action lawsuit over claims the company improperly required workers to scan their fingerprints when punching the clock.
At the same time, the lawyers who filed the lawsuit could receive $865,000, or up to one-third of the total settlement payout.
On June 4, lawyers for the workers filed a motion in federal court in Chicago, asking a judge to sign off on the $2.6 million deal, under a settlement agreement reached in the litigation brought under the Illinois Biometric Information Protection Act.
Zachary Flowerree
| Werman Salas P.C.
The lawsuit had been filed in March 2019 in DuPage County Circuit Court by attorneys with the firms of Werman Salas P.C., of Chicago, and the Fish Law Firm P.C., of Naperville.
It was originally filed on behalf of named plaintiff Thomas Burlinksi. They later added other named plaintiff Matthew Miller to the action.
Both plaintiffs worked for TopGolf at its golf driving range entertainment complexes in suburban Naperville and Schaumburg.
The lawsuit was brought under the Illinois BIPA law. The lawsuit was similar to suits lodged against hundreds of other employers, of all sizes and types, throughout Illinois, by class action plaintiffs’ lawyers under the BIPA law in recent years.
The lawsuit against TopGolf, like so many of those that came before and have come since, alleged TopGolf violated BIPA by allegedly failing to secure written consent from its workers before requiring them to scan their fingerprints to prove their identity when punching TopGolf’s time clocks at the beginning and end of each work shift. The lawsuit further alleged TopGolf failed to provide certain notices allegedly required by the BIPA law concerning how TopGolf would store, manage and ultimately destroy the scanned fingerprint data.
The lawsuit sought damages of $1,000-$5,000 per violation. The law has been interpreted in court to define individual violations as each time an employee scanned a fingerprint.
With more than 2,600 employees included in the class action, TopGolf could have faced damages worth many hundreds of millions, should they take the case to trial before a jury and lose.
TopGolf removed the lawsuit from DuPage County to federal court in Chicago.
The lawsuit, however, survived several attempts by TopGolf to dismiss the lawsuit. TopGolf, for instance, argued the lawsuit should be preempted by Illinois’ workers’ compensation law; that plaintiffs waited too long to sue; and that the plaintiffs’ complaint didn’t “plead a ‘reckless’ violation of BIPA.”
The court further refused to put the lawsuit on hold amid the COVID-19 pandemic, despite TopGolf’s assertions it was losing money with its facilities all but closed for much of 2020.
The parties ultimately reached a settlement in the spring of 2021, to avoid the risks of trial.
Under the settlement, TopGolf would pay more than $2.63 million to resolve the case, paying employees a net payment of up to $630 per person. In the settlement agreement, the parties estimated payouts could be made to 2,660 people who have worked at TopGolf’s Illinois facilities since 2014.
Under the settlement agreement, lawyers from the Werman Salas and Fish firms would be allowed to ask the judge to grant them up to one-third of the gross settlement fund.
The court has not yet granted approval to the settlement.
Attorneys working on behalf of the plaintiffs included Zachary C. Flowerree and Douglas M. Werman, of the Werman Salas firm, and David Fish and Mara Baltabols, of the Fish firm.
TopGolf has been represented by attorneys Anne E. Larson and Michael V. Furlong, of the firm of Ogletree Deakins Nash Smoak & Stewart, of Chicago.