A state appeals panel has agreed to allow a worker to continue a class action against the Admiral at the Lake, alleging the senior living facility that employed more than 300 people violated a state biometrics privacy law.
Bertrand Bayeg sued his employer, saying they forced him and 366 colleagues to use an UltiPro Touchbase facial recognition timekeeping system without complying with consent and data deletion requirements of the Illinois Biometric Information Privacy Act. After Cook County Circuit Court Judge Alison Conlon certified the lawsuit as a class action, Admiral asked the Illinois First District Appellate Court to determine Bayeg has no claim, that any damages are individualized to specific workers and Bayeg is an inadequate class representative.
Justice Rena Van Tine wrote the panel’s opinion. Justices Bertina Lampkin and Debra Walker concurred.
Bayeg worked as a certified nursing assistant at the Admiral from September 2017 through January 2019 and filed the lawsuit in July 2019. In a November 2019 motion for dismissal, Admiral said it only took pictures of employees, which it claimed BIPA does not include in its definition of biometric identifiers. Bayeg challenged that position as an improper affirmative defense disputing his allegation of facial geometry collection, and Conlon denied the dismissal motion.
Admiral again filed affirmative defenses in September 2021, Van Tine wrote, with Conlon ultimately allowing two to stand: that UltiPro’s hardware lacked the technological capability to violate BIPA in the ways Bayeg alleged and that any alleged algorithmic facial geometry activity happens on third-party servers in Georgia.
“Admiral’s procedural approach to this case complicates our resolution of this issue,” Van Tine wrote, in part because the company challenged class certification through “summary-judgment-like arguments even though the circuit court expressly avoided ruling on them in granting class certification.”
Because the only motion before Conlon was Bayeg’s request for certification, the panel said the judge had to assume the merits of the claim without factual inquiry beyond issues bearing on certification. The panel said Conlon correctly “properly declined to decide whether UltiPro only took photographs of Admiral employees in Illinois, where UltiPro conducted facial geometry collection and analysis, and whether (BIPA) applies to those functions. The court’s factual inquiries were properly limited.”
The company’s strategy, according to the panel, effectively would force Bayeg to show his claim could “survive an unfiled motion for summary judgment to have a class certified.” Meanwhile, Admiral’s arguments would affect every class member even as it insisted the damages sought weren’t able to be resolved commonly.
Van Tine said during discovery Admiral produced a spreadsheet showing each time a class member used a face scanner and “damages can be calculated by multiplying each violation by either $1,000 or $5,000, depending on which mental state Bayeg is able to prove.” However, she also included a footnote referencing the recently adopted Senate Bill 2979, intended to mitigate potential financial harm under BIPA. The General Assembly sent the bill to Gov. JB Pritzker on June 14.
“Admiral does not explain how that formula is speculative, erroneous or unsupported,” Van Tine wrote. “Admiral does not dispute the accuracy of its own spreadsheet documenting employees’ use of UltiPro, nor does it raise any concern that class members will seek actual damages rather than statutory damages. Admiral’s chief concern appears to be that the total damages award may be quite large,” perhaps from $471.5 million to more than $2.35 billion. While that dollar amount is significant, Van Tine said, “it does not mean that individual issues predominate over common issues.”
As to whether Bayeg is a suitable representative, Admiral said he is a “mere figurehead” who waived an individual claim for monetary damages and doesn’t understand the lawsuit. Van Tine said Bayeg’s deposition testimony indicated he intended to represent a class not for personal gain. He acknowledged pursuit of money, but only in the class context, which is not such a clear waiver of an individual financial claim as to support the position Conlon abused judicial discretion.
As to Bayeg’s understanding of the litigation, the panel concluded, the state law thresholds “have little if anything to do with how much the class representative knows about the case; rather, they focus on whether the representative’s interests are aligned with the other class members’ interests,” Van Tine wrote. “There is no dispute that Bayeg’s interests are the same as other class members or that Bayeg, as a former Admiral employee, is representative of other Admiral employees. Furthermore, as the circuit court found, Bayeg’s deposition testimony confirms that he has at least “a marginal familiarity with the facts of his case.”
Admiral is represented by Lewis Brisbois Bisgaard & Smith, of Chicago. The firm did not respond to a request for comment.
Keogh Law, of Chicago, represents Bayeg.