Topgolf Must Face BIPA Class Action Over Fingerprint Data

Former employees of Topgolf brought a putative class action against the company for allegedly violating the Illinois Biometric Information Privacy Act (BIPA), claiming that employees were required to track shifts using a fingerprint-scan system and that Topgolf disclosed fingerprint data to a third-party vendor. On Thursday, Judge Edmond E. Chang of the Northern District of Illinois filed an opinion denying in part and granting in part the plaintiffs’ motion to remand the case to state court, while denying the defendant’s motion to dismiss.

The plaintiffs claimed that, during the class period, Topgolf used this biometric fingerprint-scan system “to prevent one employee from clocking in for a different employee.” According to the plaintiffs, by using this system, the defendant “‘captured, collected and stored’ their fingerprint data,” which they disclosed to “a third-party time-keeping vendor.” Furthermore, the plaintiffs asserted that Topgolf “never provided (them) any written disclosures about the collection, retention, destruction, use, or dissemination of his fingerprint data,” nor did the defendant obtain consent to collect this data.

In October 2019, Topgolf removed the suit to federal court, on the basis of diversity jurisdiction. The defendant then filed a motion to dismiss the BIPA claims.

Afterward, the plaintiffs filed a motion to remand the case to state court, stating that “the amount in controversy requirements have not been met” and that the defendant “improperly aggregated” the value of the claims. The plaintiffs alleged that the Class Action Fairness Act (CAFA) removal is insufficient because the defendant “included the value of claims for which the proposed class members lack Article III standing.”

The judge noted that “only the amount-in-controversy requirement is in dispute.” Topgolf must show that individual claims exceed $75,000 and that the class amount exceeds $5 million. However, the plaintiffs claimed that Topgolf failed to meet this requirement for diversity jurisdiction and diversity jurisdiction under CAFA because Topgolf erred by including values for the five BIPA claims that the proposed class would not have Article III standing. As a result, the plaintiffs argued that these should be remanded, since they would not be enough to bring the suit over the CAFA minimum.

Topgolf argued that the plaintiffs’ allegations “failed to meet these requirements because all of the BIPA violations that they allege constitute unintentional, and thus ‘accidental,’ injuries that arose.” However, the court pointed out that numerous courts have determined that this act does not preempt BIPA allegations, and this court agrees with this conclusion. The plaintiffs sued because their statutory rights were violated, which would not be preempted in the Worker’s Compensation Act. The court also found the defendant’s argument that these injuries were “accidental” unconvincing and the claims are not preempted by the Workers’ Compensation Act.

The court also rejected contentions that the plaintiffs’ complaints were barred by a statute of limitations. The motion to remand was denied as it pertains to BIPA provisions prohibiting the collection of biometric data without permission, as well as the disclosure of said data. Remand to state court was granted for claims that the company failed to provide a biometric data retention policy. Topgolf’s motion to dismiss is denied. 

Topgolf is represented by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. The plaintiffs are represented by Werman Salas P.C. and The Fish Law Firm, P.C.