A Chicago federal judge will allow a biometrics class action lawsuit to continue against Target, which accuses the retailer of allegedly improperly surveilling customers using facial recognition cameras.
The ruling came even as the judge conceded the case is built largely on news reports and other sources and despite repeated forceful assertions from Target that the accusations are entirely false.
On Nov. 18, U.S. District Judge Jeremy Daniel denied the motion from Target to dismiss the lawsuit. The judge at the same time also denied Target's request for sanctions against the plaintiffs' lawyers for persisting with the case, even though Target said they have been repeatedly warned and shown that the allegations are built on falsities.
Attorney J. Ryan Lopatka
| Kahn Swick & Foti
The decision comes as the latest turn in a court fight that began earlier this year, when three different lawsuits were filed against Target in Cook County Circuit Court and in Chicago federal court.
All three lawsuits accused Target of allegedly violating Illinois' biometrics privacy law known as the Biometric Information Privacy Act (BIPA), by allegedly using face-scanning cameras to allegedly monitor customers and others in their stores.
The lawsuits asserted the surveillance systems, which are intended to combat shoplifting in Target stores, violated the BIPA law by allegedly scanning people's so-called facial geometry - which is considered a unique biometric identifier - without securing written consent and without providing notices allegedly required by the BIPA law concerning how Target would collect, use, store and ultimately destroy the face scans it allegedly collected.
Among those lawsuits was a case filed in federal court by attorneys with the firm of Kahn Swick & Foti. That lawsuit was filed on behalf of named plaintiffs Denise Arnold, of Homewood; Blaire Brown, of Homewood; Sandre Wilson, of Chicago; and Lindsay Schumm, of downstate Bloomington.
According to the complaint, filed May 30, the three plaintiffs allegedly believe they were wrongly surveilled by Target's alleged facial recognition systems when they shopped at Target stores in Homewood, Orland Park, Tinley Park, Oak Lawn, Chicago and Normal.
Like nearly all other lawsuits filed under the BIPA law, the plaintiffs have asked the court to order the defendant - in this case, Target - to pay money damages of $1,000-$5,000 per alleged BIPA violation.
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, the law has been used by a growing group of trial lawyers to take aim at businesses of all types and sizes with an onslaught of thousands of class action lawsuits.
The overwhelming bulk of the litigation to date has been targeted at employers in the state, accusing them of improperly requiring their workers to scan fingerprints or other biometrics to verify their identity when punching the clock to begin and end work shifts.
However, a growing number of BIPA class actions have sought to collect paydays from companies using facial recognition camera systems.
Many of those lawsuits have come against trucking companies which use cameras in the cabs of their vehicles to monitor drivers.
But other lawsuits have come against businesses accuses of using facial recognition systems to monitor crowds, sniff out fake IDs or prevent theft.
These lawsuits can prove very costly and difficult for defendants to beat, with potentially massive financial stakes, as individual violations can be multiplied across hundreds or even thousands of potential class members, and potentially thousands more individual scans, multiplying the potential payout even further.
In the federal lawsuit against Target, for instance, the plaintiffs assert there are likely "many thousands of persons" who could be included in their class action.
Faced with such financial risks, many BIPA defendants have opted to simply settle, rather than take their chances in court and potentially pay even more.
In Target's case, however, the company's lawyers told the court they believe the allegations against them are completely false. They said they have warned the plaintiffs in each of the three facial recognition BIPA lawsuits filed against them that their lawsuits are baseless and will not hold up in court.
In a recent filing, Target noted that plaintiffs in two of those lawsuits then withdrew the cases.
However, they said, plaintiffs in the third remaining case have not only refused to withdraw, but have "doubled down" with a new filing that "leaves uncorrected their prior erroneous assertions and adds new ones."
In their filing, Target said the plaintiffs' lawsuit is based almost entirely on news reports, and not an any direct evidence backing their claims.
But "most egregiously," Target said, the plaintiffs have now included a claim that a Target employee viewed Schumm's Linkedin profile, allegedly while she was in a Target store and allegedly being followed by a Target loss prevention team member.
The plaintiffs asserted this shows Target loss prevention team members are able to use their surveillance systems to identify customers, allegedly in violation of the BIPA law.
Target, however, said that claim involves the actions of "a Target employee who was in the midst of a month-long leave at the time and whose job responsibilities do not include retail location asset protection."
According to Target's filing, the employee who allegedly visited Schumm's Linkedin profile was an asset protection ops manager at Target's distribution center in Galesburg, whose "responsibilities relate solely to the protection of assets at" that distribution center.
Even if Linkedin showed that Target employee viewed Schumm's profile, "that does not plausibly suggest that Target is using facial recognition technology," Target wrote.
"Indeed, ... nothing could plausibly suggest Target is using facial recognition technology because Target is not using facial recognition technology."
He noted the plaintiffs have been unable to offer evidence to back their claims beyond the assertions of the named plaintiffs, including Schumm, and the news reports and other third-party citations concerning Target's alleged surveillance.
But the judge said he believe that is so, in part, because Target has not supplied plaintiffs with the name of its video surveillance equipment provider "to evaluate the representations in the complaint."
"Absent discovery, the plaintiffs’ plausibly lack access to information to confirm their suspicions, and so the complaint will survive dismissal if the cited sources make it plausible that Target is using facial recognition-enabled video surveillance technology," Daniel wrote. "The Court concludes that they do."
Daniel further rejected Target's bid to discount Schumm's claims concerning the Linkedin profile visit.
Taken together with the news reports cited by the plaintiffs, Daniel said he believed "these allegations present a story that holds together."
"Time will tell whether factual contentions such as this one have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery," Daniel wrote.
Daniel is new to the Chicago federal bench. He was appointed in 2023 by President Joe Biden, after serving nine years as a federal prosecutor in the U.S. Attorney's Office for the Northern District of Illinois in Chicago.
Target is represented in the case by attorneys Justin O. Kay and Ambria D. Mahomes, of Faegre Drinker Biddle & Reath, of Chicago.
Plaintiffs are represented by Kahn Swick &Foti attorneys J. Ryan Lopatka, of Chicago; Kim E. Miller, of New York; and Lewis S. Kahn and Melissa H. Harris, of New Orleans.