A federal judge has been asked to approve a $677,000 settlement that would end a biometrics class action over employee fingerprint scans at restaurant chain Pret a Manger.
Attorneys Keith J. Keogh and Gregg M. Barbakoff, of Keogh Law of Chicago, filed the lawsuit in November 2020 in Cook County Circuit Court on behalf of named plaintiff Kayla Quarles.
Quarles is identified as a former Pret a Manger employee who worked at one of the chain’s 13 Chicago locations from April 2018 to January 2019. The sandwich chain removed the complaint to federal court a month later.
Keith Keogh
| Keogh Law
The suit alleges Pret a Manger violated the Illinois Biometric Information Privacy Act by failing to secure written authorization from workers before requiring them to use a fingerprint time clock and allegedly failing to provide workers and the public with notices explaining why it required the scans and what it would do with biometric data.
In a motion filed Jan. 12, attorneys asked U.S. District Judge Manish Shah to sign off on a settlement creating a $677,450 fund for up to 797 class members, who each would receive $518 without having to submit a claim. According to the motion, Pret a Manger closed every Illinois location after the onset of COVID-19.
Quarles will request a service award of $5,000, while Keogh Law will seek fees of about 36 percent, which is nearly $240,000.
“This class relief is in line with, if not superior to, other BIPA settlements that have received court approval,” according to the settlement motion. “It should be noted that the amount recovered is more significant since Pret has closed every Illinois location and its financial position is much worse off from when this case was initially filed.”
The chain twice failed to convince Shah to stay the proceedings pending resolution of other BIPA litigation in appellate courts and the Illinois Supreme Court. It changed representation after the first attempt, following which it has been represented by attorneys Jamie L. Filipovic and Matthew E. Szwajkowski, of O’Hagan Meyer, of Chicago. After written discovery, the parties moved to mediation in August 2021.
According to the settlement motion, if the case had proceeded to trial the chain intended to argue it didn’t violate BIPA because its scanner didn’t meet the law’s definition of “biometric identifier” or “biometric information.” Quarles’ team called that a “highly-technical defense” with no guiding precedent.
Pret a Manger also sought to prove Quarles couldn’t prove it was negligent or reckless, suggested the class — if it could even be certified — brought claims that would be barred under four different legal theories and that the workers assumed the risk of legal injury, paths that “could doom the case in its entirety or, at the very least, greatly reduce the size of the proposed class and preclude any recovery for scores of class members who stand to benefit from the settlement.”
The plaintiffs also said even if they prevailed, Pret a Manger would move to reduce damages by arguing BIPA’s penalty of $1,000-$5,000 per infraction result in a violation of the business’ federal due process rights. That tack aligns with judicial interpretations of individual violations as each time an employee scans a fingerprint, raising the possibility of potentially massive damages imposed against employers for cases that reach trial.