A Cook County judge has signed off on a $495,000 settlement to end a class action accusing Arby’s of violating a state biometrics privacy law through employee fingerprint scans.
Kimberly Smith sued the fast food chain in October 2019, alleging it failed to satisfy requirements under the Illinois Biometric Information Privacy Act to provide consent for the collection and use of fingerprint scans, along with written disclosure regarding data usage and retention, to operate employee time clocks.
Cook County Judge Michael Mullen granted preliminary approval of a settlement to end the litigation in September. Following that order, Arby’s provided a class list of 495 workers who used fingerprint scanners at an Illinois Arby’s from Oct. 28, 2014, through Feb. 18, 2018. Mullen issued the order for final approval Jan. 26.
David J. Fish
| fishlawfirm.com
Under terms of the deal, class members with current addresses on file with settlement administrators are expected to collect $616 each. As class representative, Smith will get a $7,500 service award. No potential class members objected to the settlement.
Attorneys Mara Baltabols and David Fish, with the firm of Fish Potter Bolaños, of Naperville, are representing the class. The firm will get 35% of the settlement fund, plus costs, almost $175,000. In a Jan. 19 motion in support of final approval, the firm noted it had a contingent fee agreement with Smith that set its fee at up to 40% of the total award.
Smith’s lawsuit evokes dozens of similar complaints targeting employees over fingerprint scanners, as well as those seeking compensation from the manufacturers of such devices. Aside from time clocks, fingerprint and facial scanning technology is used for things like granting access to restricted areas or customer rewards programs. Broader lawsuits have implicated large companies like Facebook and Google regarding facial geometry and scraping of images posted online.
Fish Potter Bolaños noted Arby’s initially moved to dismiss Smith’s complaint, including by arguing it instituted BIPA-compliant practices before the filing and arguing for a smaller statutory limitations window. Such positions are vital to BIPA defendants because the law allows recovery of statutory damages between $1,000 and $5,000 per offense, with plaintiffs routinely arguing each scan constitutes a distinct violation, while defendants generally push back by maintaining only the initial collection of data is subject to fines.
Statutory limitations also are a crucial component of legal exposure in BIPA litigation. On Feb. 2, the Illinois Supreme Court issued a ruling holding BIPA allegations have a five-year statutory window, ending arguments from those contending the limit should be just 12 months. The same court ruled in 2019 that plaintiffs don’t need to prove they suffered actual harm regarding their biometric data but could in fact sue if the collection of such information was noncompliant with BIPA guidelines.
In pushing to settle the Arby’s case, Fish Potter Bolaños pointed to the Supreme Court’s consideration of the statutory question, as well as another concerning accrual of BIPA claims, to bolster its position the settlement was fair and beneficial to class members when balanced against a potentially weakened position. It also argued class certification is a largely unresolved subject in BIPA lawsuits.
“Further litigation would certainly be costly and protracted and any judgment could be appealed,” the firm said in its motion supporting final approval. “A guaranteed recovery today as opposed to an uncertain result in the future, are readily apparent.”