A Wendy’s fast food franchisee, which operates more than three dozen restaurants in Chicago’s suburbs and elsewhere in Illinois, has agreed to pay $5.85 million to turn the lights out on a class action lawsuit accusing the company of improperly requiring workers to scan fingerprints when punching the clock.
More than 9,700 current and former workers at the Illinois Wendy’s restaurants could be in line for checks of about $384 each under the agreement, according to settlement documents.
The lawyers who led the class action are scheduled to claim more than $2 million from the deal, or about 35% of the total funds.
David Fish
| Fish Potter Bolanos
On Sept. 2, Cook County Judge Michael T. Mullen granted final approval to the settlement.
The case had worked its way through court since October 2019, when attorneys from the Fish Law Firm, of Naperville, and Stephan Zouras LLC, of Chicago, filed suit in Cook County Circuit Court against All-Star Management Inc. The lawsuit was filed on behalf of named plaintiffs Kelly O’Sullivan, Rafael Cole and Birdell H. Capps, all of whom had worked at an All-Star-owned Wendy’s restaurant.
The Fish Law Firm is now known as Fish Potter Bolanos.
According to court documents, Bourbonnais-based All-Star owns and operates 39 Wendy’s fast food restaurants in Illinois. According to All-Star’s website, the majority of the franchisee’s restaurants are located in Chicago’s suburbs.
The class action was similar to thousands of other class actions brought against Illinois employers under Illinois’ Biometric Information Protection Act (BIPA.)
The lawsuit specifically accused All-Star of requiring workers at its Wendy’s restaurants to scan their fingerprints when punching in and out work shifts, or logging in and out of cash registers or other workplace devices, without first collecting those workers’ written authorization to conduct the scans, and without providing those workers with certain notices, allegedly required by the BIPA law.
The law, enacted relatively quietly in 2008, was originally touted as a way of preventing people’s biometric identification, like fingerprints, retinal scans and facial geometry, from falling into the hands of hackers or others who wished to steal identities or otherwise harm people.
However, in more recent years, the law has been used by a growing number of plaintiffs’ law firms to target employers of all sizes and types throughout Illinois for what the employers have argued are mere technical violations of the law.
The BIPA law allows claimants to seek damages of $1,000-$5,000 per violation. Courts have interpreted the law to allow plaintiffs to define individual violations as each time a worker scans their fingerprint or other biometric identifier.
At restaurants, industry sources have indicated this could amount to dozens of individual fingerprint scans per day. And that, they say, could leave such companies on the hook for potentially many millions or even billions of dollars in court-ordered payouts, should a case go to trial and a jury find in favor of the plaintiffs.
Courts have also, to this point, left employers with few viable defenses against the law, and few meaningful ways of limiting their losses in court.
Faced with potentially crippling losses, a growing number of employers have opted to settle, to bring the cases to a quick and less painful end, agreeing to pay hundreds of thousands of dollars up to a few million to end the legal action and move on.
In this case, according to court documents, All-Star failed in its bid to dismiss the case in 2020. The case was put on hold in March 2021, as appeals courts sort out key legal questions surrounding the BIPA law, which could have influenced the outcome in the lawsuit against All-Star.
In the spring of 2021, the two sides entered settlement talks, ultimately hammering out the $5.85 million deal.
The judge had granted preliminary approval earlier this summer.
Plaintiffs have been represented in the action by attorneys David Fish and Mara A. Baltabols, of Fish Potter Bolanos; and by Ryan F. Stephan, James B. Zouras and Haley R. Jenkins, of Stephan Zouras.
All-Star has been represented by attorneys Joel C. Griswold and Bonnie Keane DelGobbo, of Baker & Hostetler, with offices in Orlando and Chicago.