A state appeals panel has determined the company operating Chicago’s Navy Pier should be exempt from lawsuits under a state biometric privacy law, giving the company the same protections from potentially massive class action lawsuits now afforded to local and state governments under the law.
In December 2020, attorneys with two Chicago firms filed suit in Cook County Circuit Court against Navy Pier Inc., accusing the company of violating the Illinois Biometric Information Privacy Act in the way it required employees to scan their fingerprints to verify their identities when using employee time clocks.
Working on behalf of named plaintiff Martina Enriquez are attorneys James Bormes and Catherine Sons, of the Law Office of James X. Bormes, and Frank Castiglione and Kasif Khowaja, of The Khowaja Law Firm, all of Chicago.
Enriquez said she and other Navy Pier employees had to scan their fingerprints to clock in and out of work and accused Navy Pier Inc. of failing to obtain workers’ informed, written consent before making them comply with the process.
Cook County Judge Cecilia Horan dismissed the complaint in October 2021, a decision Enriquez challenged before the First District Appellate Court.
Justice Cynthia Cobbs wrote the panel’s opinion, issued Sept. 27. Justices Nathaniel Howse and David Ellis concurred. The order was issued under Supreme Court Rule 23, which may restrict its use as precedent.
According to Cobbs, the appeal hinged on a business relationship between Navy Pier Inc. and the Metropolitan Pier and Exposition Authority. The latter dates to 1989, and in 2011 it transferred operational responsibility for the pier to the newly created NPI through a lease.
Because BIPA doesn’t apply to “a contractor, subcontractor, or agent of a state agency or local unit of government when working for that state agency or local unit of government,” Cobbs wrote, NPI said it can’t be liable for consent violations. Enriquez argued NPI couldn't qualify as a governmental employer, because it only had a lessee relationship with the MPEA.
NPI asserted it had contractor status based on its duty to maintain, operate and develop Navy Pier.
“Even setting aside the fact that Enriquez has cited no authority establishing that an entity cannot be both a lessee and a contractor under (BIPA), her arguments elevate form over substance,” Cobbs wrote. “Although the agreement bears some characteristics of a net lease, the underlying substance of the agreement is for NPI to manage, operate and develop virtually all aspects of Navy Pier on behalf of the MPEA. This is not only clearly a service performed to benefit the MPEA, but also the precise governmental function that the MPEA is statutorily required to effectuate.”
Although NPI doesn’t get payment from the MPEA, and although its annual rent is $1, “we do not see how this overrides the fact that NPI performs governmental services on behalf of the MPEA pursuant to a contract,” Cobbs wrote.
The panel further explained NPI’s obligations under the agreement to operate within a framework it develops jointly with MPEA, which includes providing annual financial statements, a balanced budget and giving three MPEA executives voting positions on the NPI board.
Enriquez had sought damages of $1,000-$5,000 per BIPA violation, while also hoping to expand the scope of her lawsuit to include all Navy Pier employees required to scan biometric identifiers. But the panel affirmed Judge Horan’s dismissal, ending the action.