Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 1 of 11 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`TYRONE BREWER,
`on behalf of himself and all others
`similarly situated,
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`Plaintiff,
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`Case No. 21-cv-535
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`Jury Demanded
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`PEPPERIDGE FARM, INCORPORATED,
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`Defendant
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`CLASS ACTION COMPLAINT
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`Plaintiff Tyrone Brewer, on behalf of himself and a putative class, brings this Class
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`Action Complaint against Defendant Pepperidge Farm, Incorporated (“Pepperidge Farm”) for its
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`violations of the Illinois Biometric Privacy Act, and alleges the following:
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`NATURE OF THE ACTION
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`1.
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`When employees are hired at Pepperidge Farm they have their fingerprints scanned into
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`one of its biometric time clocks.
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`2.
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`Each day the employees press their finger into the time clock to “punch” in and out and
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`to get through a door, so that Pepperidge Farm may record its employees’ arrival, departure, and
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`break times.
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`3.
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`While the use of fingerprint scans may be more secure for the building than key fobs,
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`identification cards, or combination codes, the use of biometric identifiers in the workplace
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`entails risks for the employees. Fingerprints are permanent, unique biometric identifiers that will
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`be associated with the employee forever, whereas other security measures that may be misplaced
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
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`TYRONE BREWER,
`on behalf of himself and all others
`similarly situated,
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`Plaintiff,
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`v.
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`Case No. 21-cv-535
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`Jury Demanded
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`PEPPERIDGE FARM, INCORPORATED,
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`Defendant
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`CLASS ACTION COMPLAINT
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`Plaintiff Tyrone Brewer, on behalf of himself and a putative class, brings this Class
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`Action Complaint against Defendant Pepperidge Farm, Incorporated (“Pepperidge Farm”) for its
`
`violations of the Illinois Biometric Privacy Act, and alleges the following:
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`NATURE OF THE ACTION
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`1.
`
`When employees are hired at Pepperidge Farm they have their fingerprints scanned into
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`one of its biometric time clocks.
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`2.
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`Each day the employees press their finger into the time clock to “punch” in and out and
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`to get through a door, so that Pepperidge Farm may record its employees’ arrival, departure, and
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`break times.
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`3.
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`While the use of fingerprint scans may be more secure for the building than key fobs,
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`identification cards, or combination codes, the use of biometric identifiers in the workplace
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`entails risks for the employees. Fingerprints are permanent, unique biometric identifiers that will
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`be associated with the employee forever, whereas other security measures that may be misplaced
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 2 of 11 PageID #:2
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`or stolen can be deactivated. Keeping employees’ biometric identifiers on file exposes them to
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`serious privacy risks like identity theft and unauthorized tracking.
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`4.
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`Illinois enacted the Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”)
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`to regulate private entities that collect and store biometric identifiers, such as fingerprints.
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`5.
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`Pepperidge Farm violated their employees’ privacy rights by unlawfully collecting,
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`storing, and/or using their biometric data and information not in accordance with BIPA.
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`PARTIES
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`6.
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`Plaintiff Tyrone Brewer is a natural person and resident of this district, and former
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`employee of the defendant.
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`7.
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`Defendant Pepperidge Farm, Incorporated is a Connecticut corporation, with its
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`headquarters in Connecticut, manufacturing plants in Illinois and Pennsylvania, and its registered
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`agent C T Corporation System located at 208 S LaSalle Street, Suite 814, Chicago, Illinoi 60604.
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`JURISDICTION AND VENUE
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`8.
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`9.
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`This Court has diversity jurisdiction under 28 U.S.C. § 1332(a) over the Defendant.
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`The parties are all completely diverse: Tyrone Brewer is a citizen of Illinois. Pepperidge
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`Farm is a Connecticut corporation with its principal place of business also in Connecticut.
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`10.
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`An individual may recover between $1,000 and $5,000 in statutory damages for each
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`violation of BIPA. Mr. Brewer estimates he scanned his hand 6 times a day, 6 days a week, for
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`his three-week term of employment. Based on the length of time Mr. Brewer worked for
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`Defendant and the number of times his handprint was scanned each day, the statutory damages
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`he is entitled to far exceed $75,000.
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`2
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 3 of 11 PageID #:3
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`11.
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`This Court has personal jurisdiction over Defendant because it conducts a substantial
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`amount of business here which forms the basis of Plaintiff’s claims. Defendant’s Illinois
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`manufacturing plant is located at 230 2nd St, Downers Grove, IL 60515.
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`12.
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`Venue is proper here under 28 U.S.C. § 1391(b)(2) because a substantial amount of the
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`acts and omissions giving rise to the claims occurred in Illinois.
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`PLAINTIFF’S FACTUAL ALLEGATIONS
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`13.
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`Plaintiff was employed at Pepperidge Farm for May of 2020, contracted by a temporary
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`agency located in the same building.
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`14.
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`At the start of his employment, his handprint was scanned and saved by the biometric
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`time clock system. His handprint was then used to identify him during his workhours, when he
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`needed to get through the building door.
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`15.
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`Each time Plaintiff needed to access the building, Plaintiff had to scan his hand on a
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`biometric time clock that looked like a 3-foot-tall podium and enter in a six-digit code, which
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`was the last six digits of his social security number, to open the door.
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`16.
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`Defendant was in actual possession of Plaintiff’s biometric information contained in the
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`biometric time clock system.
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`17.
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`Plaintiff saw his coworkers use the same scanner as he did and estimates that he and the
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`other class members were asked to scan their hands three to six times per day over the course of
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`their employment.
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`18. More than ten years ago, the Illinois Legislature recognized the promises and perils of
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`biometric identification technology. It passed the Biometric Information Privacy Act, 740 ILCS
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`§ 14/1 et seq., to establish and safeguard Illinois’ residents absolute right to control their
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`biometric data.
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`3
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 4 of 11 PageID #:4
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`19.
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`20.
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`Under the act, a fingerprint or a handprint are biometric identifier. Id. at § 14/10.
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`Biometric information is any information derived from a biometric identifier, regardless
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`of how it is captured, stored, or shared. Id.
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`21.
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`Defendant used the scanner system to capture the handprints of its numerous employees
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`and store them for future use.
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`22.
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`Plaintiff’s and Class members’ handprints were obtained by Defendant and stored on
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`Defendant’s equipment to later identify each individual.
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`23.
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`Each time Plaintiff scanned his handprints using the scanner, the Defendant obtained his
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`handprint.
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`24.
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`Under the act, a private entity in possession of either biometric identifiers or information
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`must develop a written policy, available to the public, establishing a retention schedule and
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`guidelines for permanently destroying the information or identifiers. Id. § 14/15(a). Private
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`entities must also comply with that policy.
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`25.
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`Defendant has not provided any policy establishing either a retention schedule or
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`guidelines for permanently destroying the biometric data. Plaintiff was not informed of any such
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`policy and no policy was made publicly available. Based on these facts, Defendant did not
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`develop any policy regarding biometric information, nor could they have complied with any
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`policy.
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`26.
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`Under the act, a private entity is prohibited from collecting, capturing, or otherwise
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`obtaining a person’s biometric information or identifier unless it first: a) informs the subject in
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`writing that the information or identifier is being collected or stored; b) informs the subject in
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`writing of the specific purpose and length of term for which the information or identifier is being
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`4
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 5 of 11 PageID #:5
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`collected, stored, or used; and, c) receives a written release from the subject of the information or
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`identifier. Id. at § 14/15(b).
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`27.
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`Plaintiff or any member of the Class were not, at any relevant time, informed in writing
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`of any of the information required under § 14/15(b). Neither the Plaintiff nor members of the
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`putative Class executed a written release to their employer.
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`28.
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`Under the act, a private entity in possession of biometric information or identifiers may
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`not disclose, redisclose, or disseminate a person’s biometric identifier or information unless the
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`person consents to the disclosure or re-disclosure. Id. at § 14/15(d).
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`29.
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`Specifically, on information and belief, Defendant allowed other employees and third-
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`parties (for example, the on-site staffing company that hired Plaintiff) access to the print and
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`scan database and disseminated the biometric information by transmitting it both internally and
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`externally.
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`30.
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`31.
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`Plaintiff Brewer and the putative class members never consented to these disclosures.
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`Lastly, a private entity in possession of biometric identifiers or information must store,
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`transmit, and protect from disclosure all biometric identifiers and information using a reasonable
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`standard of care and in the same way the private entity stores, transmits, and protects other
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`sensitive information. Id. at § 14/15(e).
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`32.
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`On information and belief, access to the fingerprint database was essentially open to large
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`numbers of the Defendant’s employees, agents, and subcontractors. Defendant did not store,
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`transmit, or protect the handprint database in the same way it would do so to other sensitive
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`information. For example, Defendant did not encrypt the biometric data they stored on their
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`servers.
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`5
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 6 of 11 PageID #:6
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`CLASS ALLEGATIONS
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`33.
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`Tyrone Brewer brings this action on behalf of himself and under Fed. R. Civ. P. 23, on
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`behalf of a class defined as:
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`All persons in the United States who are or were employed by Pepperidge Farms,
`and whose handprint is or was collected, captured or otherwise obtained by the
`company, at any time from five years before the date of Plaintiff’s original
`complaint to the date the class is certified.
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`Plaintiff reserves the right to amend or modify the Class definition as necessary following
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`discovery.
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`34.
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`On information and belief, the Class is so numerous that joinder is impracticable. While
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`the exact number is unknown, Plaintiff believes that Defendant has saved handprint scans of
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`hundreds of its various employees, without written releases.
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`35.
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`Common questions of law and fact exist and predominate over individual questions and
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`include:
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`a.
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`Whether Defendant collected, captured, or otherwise obtained the Class’s
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`biometric identifiers;
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`b.
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`Whether Defendant informed Class members in writing of the specific purpose
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`for collecting, using, and storing their biometric identifiers;
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`c.
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`Whether any of the members consented, via a written release, to their biometric
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`identifier being used and stored by Defendant;
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`d.
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`Whether Defendant developed a written policy, made available to the public,
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`establishing a retention schedule and guidelines for permanently destroying biometric
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`identifiers;
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`e.
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`Whether Defendant complied with any such written policy;
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`6
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 7 of 11 PageID #:7
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`f.
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`Whether defendant disclosed, re-disclosed, or otherwise disseminated the
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`biometric information and identifiers and if so whether they obtained consent to do so
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`from each individual.
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`g.
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`Whether Defendant stored, transmitted, and protected the fingerprint database
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`with the requisite level of care.
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`h.
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`The extent of any damages incurred by Class members as a result of Defendant’s
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`actions.
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`36.
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`Plaintiff’s claims are also typical and co-extensive with the claims of the class because he
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`and members of the Class have all suffered the same injuries as a result of identical conduct by
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`the Defendant.
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`37.
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`Plaintiff will fairly and adequately protect the interests of the proposed Class and he has
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`retained counsel with experience in consumer law, Illinois law, and federal class actions.
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`38.
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`A class action is superior to other methods of adjudication. The Class seeks injunctive
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`relief applicable to the Class as a whole; due to the complexity of the claims, individual actions
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`are not likely to be economically feasible; based on the possibility of a very large Class size,
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`individual litigation would be a burden on the courts and result in delay and inconsistent results.
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`COUNT I – VIOLATIONS OF BIPA 740 ILCS § 14/15(a)
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`39.
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`40.
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`Plaintiff restates and alleges the above paragraphs as if set forth fully herein.
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`Defendant violated BIPA 740 ILCS § 14/15(a) by failing to develop and maintain a
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`publicly available retention and destruction schedule.
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`41.
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`Defendant also violated BIPA 740 ILCS § 14/15(a) by failing to comply with any such
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`policy.
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`7
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 8 of 11 PageID #:8
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`42.
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`Defendant’s violation of the rights of Plaintiff and the Class under BIPA render them
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`liable to Plaintiff and the Class members for $1,000 or $5,000 in liquidated damages per
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`violation, and equitable relief, attorneys’ fees and costs. 750 ILCS 14/20.
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`COUNT II – VIOLATION OF BIPA 740 ILCS § 14/15(b)
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`Plaintiff restates and alleges the above paragraphs as if set forth fully herein.
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`Defendant violated BIPA 740 ILCS § 14/15(b) by obtaining biometric identifiers without
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`43.
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`44.
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`making the required disclosures and receiving a written release from each Class member.
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`45.
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`46.
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`47.
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`Defendant did not make disclosures to Plaintiff or the Class members.
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`Neither Plaintiff nor the Class members executed a written release.
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`Defendant’s violation of the rights of Plaintiff and the Class under BIPA render them
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`liable to Plaintiff and the Class members for $1,000 or $5,000 in liquidated damages per
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`violation, and equitable relief, attorneys’ fees and costs. 750 ILCS 14/20.
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`COUNT III – VIOLATION OF BIPA 740 ILCS § 14/15(d)
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`48.
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`49.
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`Plaintiff restates and alleges the above paragraphs as if set forth fully herein.
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`Defendant violated BIPA 740 ILCS § 14/15(d) by disclosing, re-disclosing, or
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`disseminating Plaintiff and the Class members biometric information.
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`50.
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`Defendant allowed other employees and third-parties access to the print database and
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`servers and disseminated the biometric information by transmitting it both internally and
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`externally.
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`51.
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`Defendant’s violation of the rights of Plaintiff and the Class under BIPA render them
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`liable to Plaintiff and the Class members for $1,000 or $5,000 in liquidated damages per
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`violation, and equitable relief, attorneys’ fees and costs. 750 ILCS 14/20.
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`COUNT IV – VIOLATION OF BIPA 740 ILCS § 14/15(e)
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`8
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`52.
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`53.
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`Plaintiff restates and alleges the above paragraphs as if set forth fully herein.
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`Defendant violated BIPA 740 ILCS § 14/15(e) by failing to store, transmit, and protect
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`the fingerprint database with the requisite level of care.
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`54.
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`Access to the handprint database and the biometric information and identifiers stored
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`therein was, on information and belief, protected only with weak and/or shared passwords and
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`unencrypted.
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`55.
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`Defendant’s violation of the rights of Plaintiff and the Class under BIPA render them
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`liable to Plaintiff and the Class members for $1,000 or $5,000 in liquidated damages per
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`violation, and equitable relief, attorneys’ fees and costs. 750 ILCS 14/20.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff Tyrone Brewer, on behalf of himself the Class, respectfully
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`requests that the Court enter an Order:
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`A.
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`Certifying this case as a class action on behalf of the Class defined above (or on
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`behalf of such other class the Court deems appropriate), appointing Plaintiff as representative of
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`the Class, and appointing his attorneys as class counsel;
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`B.
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`Awarding liquidated damages of $1,000 for each negligent violation, and $5,000
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`for each intentional or reckless violation, of BIPA that Defendant committed;
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`C.
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`Awarding injunctive and other equitable relief as is necessary to protect the
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`interests of Plaintiff and the Class, including an order requiring Defendant to destroy their
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`biometric identifiers and information after termination of the employment relationship;
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`D.
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`E.
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`Awarding Plaintiff and the Class their reasonable attorneys’ fees and costs; and
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`Awarding such other and further relief as equity and justice may require.
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 10 of 11 PageID #:10
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`JURY DEMAND
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`Respectfully submitted:
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`By:/s/ Michael W. Drew
`Michael W. Drew
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`Plaintiff demands a trial by jury.
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`
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`Neighborhood Legal LLC
`20 N. Clark Street #3300
`Chicago, IL 60602
`312-967-7220
`mwd@neighborhood-legal.com
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`Celetha Chatman
`Community Lawyers LLC
`20 N. Clark Street, Suite 3100
`Chicago, IL 60602
`Tel (312) 757-1880
`cchatman@communitylawyersgroup.com
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`Attorneys for Plaintiff
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`10
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`Case: 1:21-cv-00535 Document #: 1 Filed: 01/29/21 Page 11 of 11 PageID #:11
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`NOTICE OF LIEN AND ASSIGNMENT
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`Please be advised that we claim a lien upon any recovery herein for 1/3 or such amount
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`as a court awards. All rights relating to attorneys’ fees have been assigned to counsel.
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`By:/s/ Michael W. Drew
`Michael W. Drew
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`11
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