Attorneys who led a biometrics class action lawsuit against Jewel-Osco’s corporate parent on behalf of Osco pharmacists will receive $551,000 in fees, accounting for about a third of a $1.58 million settlement with the supermarket chain.
On Sept. 8, Cook County Judge Anna M. Loftus granted final approval to deal, formally ending the contentious four-year-old court fight.
Under the deal, about 1,600 current and former Osco employees, who accessed the pharmacy’s computer system between 2013 and January 2021, would be paid about $977 each to settle their claims under the Illinois Biometric Information Privacy Act.
Jewel-Osco parent New Albertson’s Inc. and the plaintiffs have been in court since 2018, when attorneys with the firm of Stephan Zouras filed suit in Cook County Circuit Court. The lawsuit was filed on behalf of named plaintiff Gregg Bruhn, an Osco pharmacist.
The lawsuit was similar to thousands of others that have been filed since 2015 under Illinois’ biometrics privacy law.
Some of the lawsuits have targeted tech giants, at time resulting in headline-grabbing settlements worth hundreds of millions of dollars.
However, the bulk of the lawsuits under the BIPA law have been filed against Illinois employers of many types and sizes. The lawsuits generally have accused those employers of violating the BIPA law in they way they require workers to scan a fingerprint or other so-called biometric identifier to verify their identity when punching the timeclock to track work hours, or when accessing secure computer system or sensitive area in the workplace, such as a cash room or medicine locker.
The lawsuits accuse the employers of requiring the biometric scans allegedly without first securing written consent from the workers, or supplying the workers with certain notices explaining how the company would handle and ultimately destroy the scanned biometric data.
The Stephan Zouras firm has been responsible for a significant share of the mounting wave of class action lawsuits against Illinois employers, seeking potentially huge damages for what business advocates have called technical violations of the law, that have resulted in no real injuries to workers.
In the lawsuit against New Albertson’s, the complaint accused the company of requiring Osco pharmacists and others to scan their fingerprints to verify their identity when accessing Osco’s secure pharmacy computer system.
And like all other BIPA lawsuits to date, the class action sought an order requiring the supermarket company to pay damages of $1,000-$5,000 per alleged violation. The law has been interpreted to define individual violations as each time a worker scanned their fingerprints.
When multiplied over 1,600 workers, scanning fingerprints multiple times per day, the lawsuit could have left Jewel-Osco facing potentially massive damages, had the case gone to trial.
New Albertson’s and Jewel-Osco fought the lawsuit for years, but failed to win dismissal of the lawsuit.
Their defense was notable for challenging the law’s constitutionality. The supermarket company argued the BIPA law unconstitutionally exempted both the state government and banks and other financial institutions from the law’s stringent rules. The company said the special carveouts violate constitutional prohibitions on so-called special legislation targeting or benefiting only specific individuals or businesses.
Jewel-Osco noted the law’s definition of “financial institutions” likely would have ironically included Pay By Touch, a company which provided biometric authentication services for financial transactions, and whose descent into bankruptcy was cited by lawmakers as proof of the need for the BIPA law when it was enacted in 2008.
Courts, however, rejected New Albertson’s arguments about the law’s constitutionality.
Jewel-Osco also sought to argue Bruhn’s claims had been filed too late, as they said the lawsuit was filed too late, under state law. Proceedings on that motion were placed on hold as Illinois courts dealt with key questions that could limit employers' potential exposure under the law.
Across the state, employers have consistently been frustrated in their attempts to mount defenses, or at least reduce the potentially catastrophic damages they might face. Courts have consistently rejected most defenses, notably including companies’ contention that no one has ever actually been harmed by any violation of BIPA’s notice and consent provisions.
Judges, including the Illinois Supreme Court, have instead found the violation is itself the injury under state law, and, to this point, have turned a deaf ear to companies’ contention that the potential damages they face are unfair and crippling, particularly when compared to the lack of harm any of the allegedly injured plaintiffs may have faced from the alleged BIPA violations.
Faced with such steep odds, and weighed against such massive risk, a growing number of employers and other defendants have opted to settle instead. Settlements with employers, to date, have ranged from the hundreds of thousands of dollars to as much as $50 million.
Judge Loftus granted preliminary approval to the Jewel-Osco deal earlier this spring.
In granting final approval to the deal, Loftus also approved $551,000 and $12,000 in costs to the attorneys representing the plaintiffs and class.
Those attorneys included Andrew C. Ficzko, Ryan F. Stephan and James B. Zouras, of the Stephan Zouras firm.
New Albertson’s and Jewel-Osco have been represented by attorneys with the firm of Benesch Friedlander Coplan & Aronoff, of Chicago.