418 F.Supp.3d 279
N.D. Ill.2019Background:
- Kronos, Inc. supplied a biometric (fingerprint) timekeeping system used by Brookdale Senior Living at a Cook County, IL facility where plaintiff Aisha Namuwonge worked.
- Brookdale employees scanned fingerprints to clock in/out; Namuwonge alleges no written notices or releases were provided as required by BIPA.
- Namuwonge alleges Brookdale disclosed employees’ fingerprints to Kronos and that Kronos disclosed or stored those fingerprints with third-party hosts and lacked a publicly available retention/destruction policy.
- She filed a putative class action alleging violations of BIPA §§ 15(a), 15(b), and 15(d); Kronos removed and moved to dismiss under Rule 12(b)(6).
- The court accepted plaintiff’s factual allegations as true for the motion and evaluated plausibility under Twombly/Iqbal standards.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Claim under §15(a) (retention/destruction; possession) | Kronos possessed/controlled biometric data and failed to publish retention/destruction policy | "Possession" requires exclusive control; Kronos had (or later published) a retention schedule | Court: possession means ordinary control (not exclusive); allegations that Kronos received and lacked a public policy are plausible — §15(a) claim survives |
| Claim under §15(d) (disclosure to third parties) | Kronos disclosed/transmitted fingerprints to third-party hosts | Transmission is governed by §15(e); plaintiff’s allegations are speculative and lack specifics of any disclosure | Court: allegations are conclusory/speculative as to disclosure to third parties; §15(d) claim dismissed without prejudice |
| Claim under §15(b) (collection and written consent) | Any private entity that collected biometric data (including Kronos) must obtain written consent | Kronos did not collect fingerprints—Brookdale collected using Kronos’ system; §15(b) targets collectors | Court: complaint plausibly alleges Brookdale collected the prints and does not allege Kronos itself collected them; §15(b) claim dismissed without prejudice |
| Statutory damages for reckless/intentional violations (§20) | Seeks $5,000 per willful/reckless violation | Plaintiff fails to plead facts showing recklessness or intent | Court: negligence plausibly alleged; reckless/intentional misconduct not pleaded with sufficient detail; treble/intent-based damages stricken without prejudice |
Key Cases Cited
- Rosenbach v. Six Flags Entm’t Corp., 129 N.E.3d 1197 (Ill. 2019) (statutory rights under BIPA may be enforced without proof of additional actual injury)
- People v. Ward, 830 N.E.2d 556 (Ill. 2005) (possession as ordinary control; not limited to exclusive control)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions are insufficient; plausibility standard applied)
- Lavalais v. Village of Melrose Park, 734 F.3d 629 (7th Cir. 2013) (pleading standard discussion in Seventh Circuit)
- Miller v. Southwest Airlines Co., 926 F.3d 898 (7th Cir. 2019) (distinguishing disclosure/transmission obligations under BIPA)
- Pippen v. NBCUniversal Media, LLC, 734 F.3d 610 (7th Cir. 2013) (states of mind may be pleaded generally but must be plausible)
- Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826 (7th Cir. 2015) (allegations must support inferences of culpable state of mind)