Midwest grocery giant, Jewel-Osco, is seeking dismissal of a potentially massive putative class-action lawsuit filed against it alleging violations of the Illinois Biometric Information Privacy Act (BIPA). The grocery chain is accused of running afoul of the Illinois BIPA in connection with the technology used by the company to scan fingerprints of certain employees. The company has shot back against the complaint arguing that the suit should be thrown out because it is “conclusory and speculative” and is based entirely on “bald information and belief,” without hard facts.
In 2018, a former Jewel-Osco pharmacist, Gregg Bruhn, filed a putative class action lawsuit against New Albertsons Inc., the parent company of Jewel-Osco, alleging various violations of the Illinois BIPA. Albertsons operates nearly 200 stores located throughout Illinois, Indiana and Iowa, but mostly in the Chicago area. The plaintiff was employed by Jewel-Osco from 1989 to 2018.
In his complaint, Bruhn alleges that he and other employees had to scan their fingerprints in order to gain access to the pharmacy’s computer system for more than a decade beginning in 2006 until at least 2018. Bruhn further alleges that his former employer violated the Illinois BIPA in connection with these fingerprint scans by passing his prints to out-of-state third parties and by failing to give him and the other employees notice concerning how their prints were to be used, stored, shared and ultimately destroyed. He also alleged that Jewel-Osco failed to secure the consent of the employees before acquiring their prints. Under the Illinois BIPA, an employer can be found liable and made to pay damages for each time an employee scanned their fingerprints when verifying their identity. He is seeking to represent both himself and a class of similarly situated employees and has requested as much as $5,000 in statutory damages per violation, per employee.
In its motion for dismissal, Jewel-Osco argues that “Plaintiff’s information and belief allegations are unsupported by a single factual allegation of any kind. Plaintiff’s allegations are the exact kind of ‘merely speculative allegations of misconduct based upon information and belief’ that courts routinely reject.” Jewel-Osco further argues that Bruhn’s claims may be untimely as he filed his lawsuit two weeks after leaving Jewel, but the Illinois BIPA gives an employer up to three years from the employee’s last interaction with the employer to delete biometric data.
Interestingly, Jewel-Osco argues not only that Bruhn’s suit was filed too early but also that it was filed too late. According to the grocery chain, Bruhn did not file his suit until more than 10 years after his print was first scanned, putting his action beyond any possible statute of limitations, though the grocer acknowledges that courts are unsettled as to what the exact statute of limitations is for such actions with courts stating that it is one, two or five years.
Finally, Jewel-Osco argues that every scan could not accrue a separate violation as this would entitle Bruhn alone to damages ranging from $3 million (if he scanned his finger once a day for 12 years) up to $30 million (if he scanned it 10 times a day). These amounts are the types of “illogical and absurd” damages that would put “droves” of employers who unknowingly failed to comply with the letter of the law out of business.
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