A federal judge has deleted a class action lawsuit accusing office coworking space provider WeWork of illegally scanning faces of people using its shared office spaces, because a class action settlement with online ID verification provider Jumio also shields Jumio’s corporate customers from similar class actions brought under Illinois’ biometrics privacy law.
On March 31, U.S. District Judge Edmond Chang granted WeWork’s request to dismiss the lawsuit, which had been brought under the Illinois Biometric Information Privacy Act (BIPA.)
The judge said the language in the settlement was not unusual, and was not ambiguous.
Pointing to transcripts from proceedings about the Jumio settlement in Cook County Circuit Court, Chang noted attorneys for Jumio noted the language, and “made it clear that if the release had been ‘narrower’ and had not included the BIPA claims against Jumio’s customers, there would have been no deal,’ meaning no settlement.”
Chang dismissed the lawsuit against WeWork with prejudice, meaning the plaintiffs cannot attempt again to bring suit against WeWork. They can still yet appeal, if they wish.
Attorneys from the firm of Stephan Zouras LLP, of Chicago, filed the class action complaint against WeWork in November 2019, on behalf of named plaintiff Elliott Osborne.
In the complaint, Osborne claimed he worked in a WeWork office space on South Clark Street in Chicago in 2017, as an employee of SpotHero.
According to the complaint, Osborne said WeWork required everyone using their offices to be photographed so WeWork could monitor worker movement.
However, in the complaint, Osborne asserted WeWork did not first obtain written consent from people entering the facility to have their faces scanned, nor did the company provide certain notices concerning why and how the facial scans would be collected, stored, shared, used and ultimately destroyed.
The complaint asserted this means WeWork’s policies violated the Illinois BIPA law, which requires such notice and consent.
WeWork is one of many Illinois companies hit with one of the thousands of such class action lawsuits under the BIPA law in the past seven years.
The bulk of such lawsuits have targeted employers for requiring workers to scan fingerprints to verify their identity when punching the clock at the beginning and end of work shifts.
However, a growing cadre of BIPA class action suits have taken aim at companies for scanning the faces of people entering work spaces, stores, recreational facilities and other places of public accommodation, or of people using certain kinds of technology, such as apps or kiosks that help people purchase eyeglasses or cosmetics remotely.
Some class actions have also targeted the tech vendors who provide facial recognition technology.
One such class action was brought against Jumio, which provides ID verification services to a wide range of companies, including some of the largest businesses engaged in banking, finance, gaming, fraud protection and online security, among other services.
WeWork used Jumio product, NetVerify, to power its facial recognition security and monitoring system in its buildings.
Jumio was sued in 2019, also in Cook County Circuit Court, accusing it of failing to abide by BIPA’s notice and consent provision when its software conducted facial recognition and ID verification scans.
Jumio settled that lawsuit with attorneys from the firm of McGuire Law P.C., of Chicago, in 2020, agreeing to pay $7 million to end the case. The McGuire lawyers received about $2.8 million in the deal.
Jumio has since been sued again, this time by the firm of Edelson P.C., of Chicago, which accused the company of continuing to violate BIPA, despite the settlement agreement.
However, Jumio’s 2020 BIPA settlement included a provision releasing Jumio from further action on the past facial scans, which covered the time period of 2013-2019. That release provision was also extended to Jumio’s customers.
WeWork cited that release provision in asking Judge Chang to dismiss Osborne’s BIPA class action. WeWork noted Osborne had been included in the plaintiffs’ class for that settlement, had received notice of the settlement, and had opted not to exclude himself from the settlement before the exclusion and objection deadline specified in the settlement agreement.
Judge Chang agreed the release provision should carry the day in court, and doomed Osborne’s lawsuit.
“… Defendants in class-action settlement agreements of this kind not surprisingly insist on releases of claims against the defendant’s customers, lest the customers come knocking on the defendant’s indemnity door later,” Chang wrote. “The state court settlement agreement, through its specific and unambiguous definitions, releases claims against Jumio customers such as WeWork and the state court found that the claims were released for adequate consideration.
“There is no genuine dispute of material fact - the Jumio settlement release applies to the claims in Osborne’s complaint and so Osborne’s claims in this case against WeWork have been released.”
Osborne has been represented by attorneys Ryan F. Stephan, James B. Zouras and Haley R. Jenkins, of the Stephan Zouras firm.
WeWork has been represented by attorneys Melissa A. Siebert, Matthew C. Wolfe and Yara K. Rashad, of Shook Hardy & Bacon, of Chicago.