A federal judge in Peoria has dismissed a biometrics class action against HungerRush, a company that makes and supplies point of sale systems to restaurants, saying the vendor never handles the actual fingerprint scans at the heart of the litigation.
Barbara White, who works for a Peoria restaurant, initially sued HungerRush in state court, alleging violations of the Illinois Biometric Information Privacy Act. But the Texas-based company removed the complaint to federal court, then filed a motion to dismiss. After White amended her complaint, HungerRush again moved for dismissal, which U.S. District Judge Michael Mihm granted in an opinion filed March 28.
White’s complaint was premised on allegations HungerRush failed to comply with BIPA’s requirements to give proper notice of and obtain written consent for collection and storage of biometric data. She said her employer compelled workers to use the fingerprint timeclock feature in a HungerRush point-of-sale system. She entered as evidence screen captures showing instructions for enrolling and registering a print in that software.
In arguing for dismissal, HungerRush disputed whether Judge Mihm had jurisdiction over the matter by challenging White’s assertions it deployed cloud-based technology or otherwise received or stored personal data from her or her restaurant coworkers.
Matthew Hoeg, HungerRush’s chief administrative officer and general counsel, submitted an affidavit explaining his company “does not manufacture and has never manufactured, any finger-scan devices or software, including finger-scan devices and software with biometric capabilities,” according to Mihm. He further said White’s restaurant bought a HungerRush Revention point-of-sale system and is using it with a third-party finger scanner, which Hoeg said has its own software that doesn’t need to send or store data through Revention software.
In responding to the motion to dismiss, White only contended HungerRush was “inappropriately arguing merits questions,” Mihm wrote, further insisting all she needed to establish jurisdiction was evidence of the company contracting with an Illinois-based customer. But Mihm said HungerRush’s motion directly addressed jurisdiction by claiming it isn’t engaged in the type of conduct White alleged, which compelled White to submit affirmative evidence concerning jurisdiction.
Mihm said several U.S. Seventh Circuit Court of Appeals opinions concerning personal jurisdiction establish a plaintiff’s burdens in this type of situation, and White failed to clear that bar.
HungerRush argued White’s restaurant initiated the customer relationship and that it doesn’t reach out to potential Illinois clients. To the extent the company does conduct business in a way that might align with White’s allegations, Mihm explained, that would have to include its newer HungerRush 360 technology, and although White’s complaint named that system, her screen shots confirm her restaurant was using Revention.
Although the HungerRush 360 marketing materials do reference centralized data and a promise to users that will have “100% control from anywhere,” HungerRush argued Revention “merely receives a pre-programed verification signal from a third-party finger-scanner, and it does not send data of any kind back to HungerRush.” Furthermore, HungerRush said it “does not and has never manufactured a fingerprint scanner,” Mihm wrote.
Mihm dismissed White’s complaint without prejudice, meaning she is free to try to revise her complaint to try again, if she can find a way to establish HungerRush may have violated the BIPA law.
Plaintiffs were represented by attorneys Roberto Luis Costales and William H. Beaumont, of the Beaumont Costales firm, of Chicago.
HungerRush has been represented by attorneys Erin Bolan Hines and Kathleen M. Ryan, of the firm of Shook Hardy & Bacon, of Chicago.