A federal judge says gas station and convenience store giant Speedway must be prepared to either settle a longrunning class action lawsuit accusing them of wrongly making workers scan their fingerprints when punching the clock at work, or prepare to face a potentially costly trial under Illinois' stringent biometric privacy law.
If the case goes to trial, it would mark the second such case to go to trial over the use of fingerprint scanning technology in workplaces, but the first to address the central question underlying the vast bulk of the thousands of lawsuits brought under the Illinois Biometric Information Privacy Act against employers who have deployed fingerprint-scanning timeclocks in their workplaces.
On Sept. 29, U.S. District Judge Edmond Chang rejected Speedway's request for summary judgment, potentially marking a final attempt to end the case before it would be ticketed for trial or a potential settlement.
Andrew C. Ficzko
| stephanzouras.com
The lawsuit dates to 2019, when attorneys with the law firms of Stephan Zouras and Edelson PC, of Chicago, filed suit in Cook County Circuit Court on behalf of named plaintiff Christopher How and other Speedway workers.
According to court documents, the lawsuit could include nearly 7,250 workers. According to online estimates, Speedway operated 129 stores in Illinois as recently as 2020.
The lawsuit is similar to thousands of others filed against employers under the BIPA law in the past decade.
Enacted in 2008, the Illinois BIPA law was ostensibly designed to safeguard the so-called unique identifying biometric information of employees and customers, including their fingerprints, facial geometry and other unique physical characteristics. Lawmakers at the time said the measure was inspired by the collapse of the company known as Pay By Touch, which had been among those pioneering the ability of consumers to pay for goods and services using fingerprint scanners.
Since 2015, however, the BIPA law has been used by a growing cadre of trial lawyers to target businesses of all types and sizes with an onslaught of thousands of class action lawsuits filed in Cook County and other courts in Illinois, and now even in other states.
The Stephan Zouras and Edelson firms were among the first to launch such class actions under BIPA.
Some of the lawsuits famously targeted tech giants, like Facebook- and Instagram-parent Meta and Google, resulting in high profile settlements worth hundreds of millions of dollars.
The overwhelming bulk of BIPA litigation, though, has taken aim employers in Illinois. Such lawsuits have accused them of violating the law by scanning workers' fingerprints, faces, voices and other biometric characteristics, without first obtaining written consent or providing notices about how that information might be stored, used, shared and destroyed, among other technical provisions in the law.
As in the vast majority of BIPA suits, the Speedway employees accused their employer of improperly requiring workers to scan fingerprints to verify their identities when punching in and out of work shifts.
And as in all other BIPA suits, the plaintiffs in the Speedway litigation are asking the court to order Speedway to pay damages allowed under the law of $1,000-$5,000 per violation.
At minimum, Speedway faces a payout ranging from $7.5 million to $36 million, if damages are assessed one time per employee. However, damages could rise far higher under damages calculations favored by plaintiffs' lawyers in other BIPA cases.
Exactly how much that payment could be is a question that may need to be worked out by the court at trial and in other proceedings.
Under a series of decisions affirming a broad interpretation of the law, the Illinois Supreme Court explicitly defined "individual violations" under the BIPA law as each time a company scans someone's biometrics.
And the high court declared claims under the law should have a five year statute of limitations.
So, when multiplied across entire workforces, such potential awards could run high enough to be considered "annihilative," with total payouts spiraling into the many millions or even billions of dollars, should a jury rule against an employer at trial.
Facing such risk, a growing number of employers and other companies targeted by BIPA class actions have opted to pay millions in settlements.
In March, for instance, railroad operator BNSF agreed to pay $75 million to settle BIPA-related claims against them from truck drivers who accused the company of wrongly requiring them to scan their prints when entering secured railyards. That case had been the first BIPA suit to go to trial. A jury had ordered BNSF to pay $228 million, but a judge had tossed out the verdict, setting the stage for the settlement talks.
In that ruling, U.S. District Judge Matthew Kennelly ruled that courts aren't obligated to simply multiply damages across the number of plaintiffs when fashioning judgments under BIPA.
Plaintiffs' lawyers had argued BNSF owed $800 million or more.
Such BIPA settlements have generated a lucrative source of revenue for the trial lawyers who file such BIPA suits. According to a report from the Chamber of Progress, which represents companies in the tech sector, trial lawyers have received, on average, $11.5 million in fees per BIPA lawsuit. In all, the Chamber of Progress said such BIPA lawsuits have resulted in the transfer of hundreds of millions of dollars from employers and other Illinois businesses to trial lawyers.
Faced with growing calls for reform amid predictions of economic harm for the state should such BIPA litigation be allowed to continue unfettered, Illinois state lawmakers this year enacted the first significant reforms of the BIPA law since its original passage. Under those reforms, lawmakers declared "individual violations" can only be counted per person, not per biometric scan. Thus, BIPA plaintiffs could only demand $1,000-$5,000 each, not multiplied across potentially hundreds or even thousands of potential biometric scans per plaintiff over a five year period.
While the changes could significantly reduce the financial risk faced by businesses sued under BIPA, the revised law did not directly address whether those changes should apply to lawsuits filed under the original version of the law and which are still pending in court.
Legal observers have predicted that question may dominate proceedings in BIPA cases, as judges and attorneys hash out arguments over whether the intent of lawmakers should be taken into consideration when addressing potentially astronomical payment demands from plaintiffs.
In rejecting Speedway's attempt to park the BIPA class action it has faced for five years, Judge Chang brushed aside such concerns.
While he did not directly address the reforms, Chang noted the Illinois Supreme Court has repeatedly said it believes BIPA was created with such large awards in mind, while leaving trial courts "discretion to fashion appropriate awards" within BIPA's confines.
In his ruling, Chang took down every argument advanced by Speedway to defeat the class action, notably including arguments over whether the timeclock scans amounted to actual biometric scans, as defined by the law. Speedway asserted its timeclocks don't actually generate a replica of the fingerprints that are then stored. Rather, the system converts a partial fingerprint scan into a template based on a series of numbers and letters, which are then used to identify individual workers.
Speedway asserted this ID is equivalent to a Social Security number or drivers license numbers, which people use routinely for ID purposes.
Chang, however, rejected that assertion.
He noted Social Security numbers and similar forms of identification are assigned randomly, and are not tied to any physical characteristics.
And, the judge said, "there is no reason that a partial fingerprint, or a scan of a 'portion of the ridges of a finger' cannot qualify as a biometric identifier, as long as that partial scan or portion is a 'unique personal feature that can be used to identify a person.'
"... Whether the finger scan collected by Speedway's timeclocks is a biometric identifier depends on whether the scan is a sufficiently unique personal feature capable of being used to identify a specific person, even though it is less than the size of a full fingerprint," Chang wrote.
"On the factual record presented by the parties, the scans meet that requirement."
Chang further rejected Speedway's attempts to argue it can't be sued because it claims it neither retains nor controls the fingerprint scans.
The judge said it matters under the law only that the company "obtains" the information in the first place.
"Although the finger scans collected by the timeclock might only be retained for less than a half-second before being discarded, they are nonetheless 'gained or attained' by the timeclock to generate the Template," Chang wrote.
And the judge rejected Speedway's attempt to head off the class action by asking the court to kick Howe off the case as the lead plaintiff. Speedway asserted Howe has failed to abide by his responsibilities as the lead plaintiff on the case, as they say he has not monitored the case to this point, nor has he educated himself about the division of responsibilities and fees among the law firms on the case.
Chang said he expects Howe will "more fully familiarize himself with the litigation and the fee agreement as the case moves forward, especially when it comes to monitoring the fees and costs of the litigation."
But he said Howe's behavior as lead plaintiff doesn't disqualify him, nor does it stop the class action from moving forward, because he said Howe has "adequately participated" to this point.
In the ruling, Chang formally certified the case as a class action, defining the class to include everyone who worked for Speedway in Illinois and used biometric punch clocks at their stores from 2012-2017.
In rejecting Speedway's motion for summary judgment, Chang directed the two sides to "engage in settlement negotiations." He directed lawyers for both sides to file a status report by Oct. 28 concerning the settlement talks and potential need for a trial.
Plaintiffs have been represented in the case by attorneys Andrew C. Ficzko, Ryan F. Stephan and James B. Zouras, of Stephan Zouras; and Schuyler Ufkes and J. Eli Wade-Scott, of Edelson PC.
Speedway is represented by attorneys Tristan L. Duncan and Matthew C. Wolfe, of Shook Hardy & Bacon, of Kansas City, Missouri, and Chicago.