Fast food chain Wow Bao has asked a Cook County judge to end the class action lawsuit they face under Illinois' biometrics privacy law, as the restaurant chain says it never actually scanned any of faces of customers using the self-serve kiosks placed in their restaurants in Chicago or elsewhere.
Rather, the restaurant operator asserted they can't be held liable for actions it says were taken, outside of Wow Bao's control, by the vendor who installed and operated the kiosks, identified as Nextep.
"The nature of the technology and the MSA (master services agreement) show there is nothing Defendants (Wow Bao) could do to affect the security of Nextep's data and/or where Nextep transmits the data," Wow Bao wrote in a recent motion. "There is nothing Defendants could do to provide access to Nextep's data, let alone prevent misuse. And there is certainly nothing they would do to affect how long Nextep stores facial recognition data."
Christopher Ward
| Foley & Lardner
The Asian-themed restaurant chain told the judge that to rule otherwise would be a "substantial injustice" under the law and would only "encourage the onslaught" of financially perilous no-actual-injury lawsuits which are "inundating the Illinois courts" under the Illinois Biometrics Information Privacy Act (BIPA.)
The legal fight dates to 2017, when Wow Bao became one of the first businesses operating in Illinois to be targeted by a class action lawsuit under the BIPA law over customer facial recognition tech.
At the time, Wow Bao was owned and operated by Chicago-area restaurant company Lettuce Entertain You Enterprise. However, according to court documents, since that time, LEYE sold Wow Bao to a private equity group.
According to its website, Wow Bao operates 11 restaurants in Chicago and the suburbs, and two additional restaurants downstate in the Metro East suburban areas across the Mississippi River from St. Louis.
The restaurant chain offers what it calls "Asian street food," including bao buns, dumplings, potstickers and rice and noodle bowls.
The lawsuit was filed by attorneys with the Chicago firm of Stephan Zouras LLP, a firm which for years has centered a large portion of its practice on class action lawsuits against businesses over alleged violations of the BIPA law. The lawsuit was filed on behalf of named plaintiff Regina Morris.
Since 2015, thousands of such class actions have been filed against businesses of all types and sizes operating in Illinois. Some of the lawsuits have famously targeted social media giants, like Facebook-parent Meta and Google, resulting in headline grabbing settlements worth hundreds of millions of dollars.
The overwhelming bulk of the lawsuits to date, however, have gone after smaller entities, accusing them of allegedly wrongly scanning so-called biometric identifiers of employees and customers. Such biometric identifiers can include fingerprints, faces, retinal scans, voices and others.
The lawsuits all generally seek damages of $1,000-$5,000 per violation, as allowed under the BIPA law.
However, thanks to interpretations of the law endorsed by the Illinois Supreme Court, the risk of financial damages can quickly multiply. In 2019, the state high court determined plaintiffs don't need to prove they were actually harmed in any real way by the allegedly unlawful scans of their biometric data.
Then, the court most recently upped the risk, by explicitly defining "individual violations" under the BIPA law as each time a company scans someone's biometric data. When multiplied across entire workforces or untold numbers of customers, such potential damage awards could turn "annihilative," as some judges have observed.
Since they first began to appear in Illinois courts about nine years ago, such BIPA lawsuits have resulted in a litany of multi-million dollar settlements, and hundreds of millions of dollars in collective attorney fees paid to class action lawyers who file the suits. Generally, attorneys have been allowed to claim about a third of all BIPA settlements.
The transfer of money from Illinois businesses to trial lawyers and others under the BIPA lawsuits have prompted Illinois business advocates to call for reforms to the law, noting its destructive impact on the state's economy. To date, Illinois' Democratic supermajority in the state legislature has declined to take action. The Illinois Democratic Party receives regular large campaign donations from trial lawyers, such as those bringing the BIPA lawsuits.
In the lawsuit against Wow Bao, plaintiffs claimed the company allegedly violated the BIPA law by allegedly scanning the faces of customers using self-service ordering kiosks in Wow Bao restaurants.
The lawsuit specifically accused Wow Bao, in large part, of allegedly scanning customer faces without first securing their consent, or without supplying notices concerning how the company would store, use, share and ultimately destroy the face scan data, allegedly in violation of BIPA.
However, in its motion filed April 4 in Cook County Circuit Court, Wow Bao said after years of proceedings, including expert testimony and discovery, the time has come to end the lawsuit.
Their arguments largely follow a path set and celebrated by others who have beaten BIPA lawsuits in recent years. Notably, in March 2023, ID verification scanning tech vendor FaceTec quickly defeated a BIPA-related class action. In that lawsuit, FaceTec was similarly accused of improperly scanning people's faces.
However, they defeated the lawsuit by sending a letter to the plaintiffs' attorneys, from the firm of McGuire Law, of Chicago, which they said demonstrated that FaceTec never actually received any biometric information from the scans.
The lawsuit was then quickly dropped.
Wow Bao similarly claims the evidence and witness testimony all confirm that Wow Bao never actually scanned any customer faces, nor did it possess any of the data, which they say was entirely controlled by kiosk vendor Nextep.
Wow Bao said the evidence shows Nextep upgraded the kiosks in 2016, years after they were first installed in Wow Bao's restaurants. Wow Bao asserts it never requested the face scanning tech, and it initially opposed the upgrades.
Wow Bao further noted that customers were never compelled to exclusively order food at its restauarants using the self-service kiosks at the heart of the legal action.
Wow Bao has asked the court to grant summary judgment, which would end the lawsuit. They assert their motion represents the first time in nearly a decade of BIPA-related litigation that a court will consider such a motion, based on "a fully developed universe of facts established by extensive evidence, including expert testimony and forensic analysis."
"In so doing, this Court will take the first step in establishing important precedent of which reviewing courts and other courts will almost certainly take note," Wow Bao's attorneys wrote.
Wow Bao is represented in the case by attorneys Christopher Ward and Patrick J. McMahon, of the firm of Foley & Lardner LLP, of Chicago.
Plaintiffs have yet to reply to the motion for summary judgment.