A Cook County judge has signed off on a $296,000 settlement to end a 330-member class action accusing Whole Foods of violating a state privacy law in connection with employee “voiceprints.”
On Jan. 25, 2022, Ricky Jones sued Whole Foods over its use of Vocollect, the name for Honeywell International technology used at the Chicago distribution center were Jones worked. According to Jones’ complaint, the software for the earpiece/microphone equipment records workers reciting specific words and uses their speech patterns to enable the system to identify individuals.
Jones alleged Whole Foods violated the Illinois Biometric Information Privacy Act by failing to get employees’ written consent to provide the information and not supplying a written policy regarding use, storage and deletion of the identifiers. Though the case was removed to federal court on March 16, 2022, it was remanded to Cook County Judge Michael Mullen on Dec. 2.
On Dec. 23, the Fish Potter Bolaños law firm, of Naperville, which represents Jones and the potential class of employees, filed a motion for preliminary approval of a settlement. According to that filing, the settlement pool of $296,762 would result in direct checks of $545 per member.
The attorneys are requesting legal fees and expenses equal to 35% of the gross settlement fund, about $103,866. Settlement administration should cost almost $7,000, performed by Analytics Consulting, and Jones stands to collect a $5,000 service award.
Jones’ original complaint sought statutory damages of $1,000 or $5,000 for each alleged BIPA violation, as the statute allows. But with unanswered legal questions about the definition of individual violations — such as whether only the initial setup of a Vocollet account is in question or whether an independent violation occurred every time an employee used the system — damages for BIPA litigation can quickly escalate.
“To date, no court has issued a conclusive opinion on whether the voice technology used by defendant qualifies as collection of biometric data,” according to the motion. But in the original complaint, Jones asserted “the voiceprints are not merely voice ‘recordings’ but biometric identifiers that are influenced by both the physical structure of an operator’s vocal tract and the employee’s specific vocal behavioral characteristics. As a worker’s voice changes in different environments, the software adjusts the template to account for changes in the worker’s voice, thereby changing the voiceprint to further refine its ability to recognize and ability to identify the worker.”
Although Jones originally named Honeywell as a respondent in discovery, because it made the equipment in question, the settlement discussions began before substantive discovery.
Other litigation concerning voice prints includes a lawsuit against American Airlines alleging BIPA violations linked to recorded customer service phone calls, but U.S. District Judge Rebecca Pallmeyer wouldn’t let portions of the complaint proceed in federal court because doing so would conflict with the 1978 U.S. Airline Deregulation Act. Walmart also faces a Vocollet BIPA lawsuit from an Illinois warehouse worker in Cook County Circuit Court.
Mullen entered a Jan. 3 preliminary approval order regarding the Whole Foods settlement. The judge granted conditional certification of a class covering only employees of the East 111th Street distribution center, whose last known address is in Illinois and who used a Vocollect system at work dating back to Jan. 25, 2017. If new class members are identified within 120 days of final approval, Whole Foods will put an extra $899 per capita into the gross fund.
Mullen set a final approval hearing for April 25.
He further said settlement class members will be sent checks directly and do not need to proactively seek payment through a claims process.
Class members have until Feb. 17 to opt out of the settlement.
Money from any checks uncashed within 120 days of final approval will be split — half going to Prairie State Legal Services and half reverting to Whole Foods.