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Namuwonge v. Kronos, Inc.

United States District Court, N.D. Illinois, Eastern Division

November 22, 2019

AISHA NAMUWONGE, individually, and on behalf of all other similarly situated individuals, Plaintiff,
KRONOS, INC., Defendant.



         Plaintiff Aisha Namuwonge filed a class action complaint against defendant Kronos, Inc. alleging violations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. Kronos moves to dismiss the class action complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motion is granted in part and denied in part.


         The following facts are summarized from the complaint and taken as true for the purpose of deciding this motion. Defendant Kronos is a leading provider in workforce management software and services. The corporation is best known for its devices that enable employers to process payroll and track employee time. Kronos provides Brookdale Senior Living, Inc. with an employee timekeeping system. Brookdale operates and owns over 1, 000 senior living communities in the United States.

         Namuwonge began working as a utility worker for a Brookdale facility in Cook County, Illinois on February 11, 2019. Brookdale requires employees to enroll in its database system, supplied by Kronos, that scans their fingerprint as a means of authenticating and monitoring time worked. Namuwonge and other Brookdale employees scanned their fingerprint each time they clocked in and clocked out for work. Brookdale subsequently stored Namuwonge's fingerprint data in its Krono database. Namuwonge was never provided with nor signed a written release allowing Kronos or Brookdale to collect, store, use, or disseminate her biometric data.

         Based on information and belief, Namuwonge alleges that Brookdale failed to inform their employees that they disclose the employees' fingerprint data to third party vendor Kronos. Namuwonge further alleges, also based on information and belief, that Kronos failed to inform Brookdale employees that Kronos disclosed their fingerprints to other third parties, which host data in their data centers. Kronos failed to provide Brookdale employees with a written, publicly available policy explaining their retention schedules and guidelines for permanently destroying biometric data in their possession. Namuwonge further alleges that because Kronos “neither publish[es] a BIPA-mandated data-retention policy nor disclose[s] the purposes for their collection and use of biometric data, Brookdale employees have no idea whether any Defendant sells, discloses, re-discloses, or otherwise disseminates their biometric data.” (Dkt. 1-1, Compl. ¶ 41.)

         On April 5, 2019, Namuwonge initiated this class action lawsuit against Kronos in the Circuit Court of Cook County, Illinois, alleging three separate violations of BIPA's provisions: 740 ILCS 14/15(a), (b), and (d). Namuwonge, individually, and on behalf of the class, seeks to recover liquidated damages of $1, 000 or actual damages, whichever is greater, for negligent violations and $5, 000 or actual damages, whichever is greater, for intentional or reckless violations. 740 ILCS 14/20. Kronos removed this lawsuit to federal court. Now, Kronos moves to dismiss the class action complaint for failure to state a cause of action upon which relief can be granted.

         Legal Standard

         In ruling on a Rule 12(b)(6) motion to dismiss, the Court accepts all of the plaintiff's allegations as true and views them in the light most favorable to the plaintiff. Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). To survive a motion to dismiss, a complaint must contain allegations that “state a claim to relief that is plausible on its face.” Id. at 632 (internal quotations omitted). The plaintiff does not need to plead particularized facts, but the allegations in the complaint must be sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Threadbare recitals of the elements of a cause of action and allegations that are merely legal conclusions are not sufficient to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).


         BIPA “imposes numerous restriction on how private entities collect, retain, disclose and destroy biometric identifiers … Under the Act, any person ‘aggrieved' by a violation of its provisions ‘shall have a right of action against an offending party' and ‘may recover for each violation.'” Rosenbach v. Six Flags Entm't Corp., 2019 IL 123186, ¶ 1, 129 N.E.3d 1197 (Ill. 2019); see also 740 ILCS 14/1 et seq. BIPA imposes distinct sets of obligations on possessors and collectors of biometric data. Entities “in possession” of biometric identifier or biometric information must develop publicly available retention schedules and destruction deadlines. 740 ILCS 14/15(a). These entities also may not disclose or otherwise disseminate the data except under certain circumstances. 740 ILCS 14/15(d). Entities that collect biometric information are subjected to heightened criteria. Namely, these entities must inform the subject in writing that biometric information is being collected and receive an executed written release authorizing the collection. 740 ILCS 14/15(b).

         First, Kronos contends that Namuwonge failed to adequately plead that Kronos actually possessed Brookdale employees' biometric data as required under provisions 15(a) and 15(d). Kronos argues that possession requires the exercise of dominion and control over the biometric data “to the exclusion of others.” (Dkt. 23 at 5.) Namuwonge responds that she sufficiently alleges that Kronos captured, collected, stored, and used her biometric data and that more than one entity may possess biometric or any electronic data at any given time.

         The Court begins its analysis with the Illinois Supreme Court's recent holding in Rosenbach v. Six Flags Entertainment Corporation, 2019 IL 123186, 129 N.E.3d 1197 (Ill. 2019). In Rosenbach, the plaintiff alleged that defendant Six Flags collected and stored her son's fingerprint without informing her son or her of the purpose of data collection or obtaining written consent. Rosenbach, 2019 IL 123186 at ¶ 6-9. The Illinois Supreme Court reversed the lower court's finding that one qualifies as an “aggrieved” person only when he or she has alleged some actual injury beyond a violation of the rights under the statute. In reaching its decision, the court engaged in “basic principles of statutory construction” to examine the plain and ordinary meaning of the statute language to best give effect to the legislature's intent. Id. at ¶ 24 (citing Acme Markets, Inc. v. Callanan, 236 Ill.2d 29, 37-38, 923 N.E.2d 718 (2009)). The Illinois Supreme Court held that when a statute does “not contain its own definition” of what a particular term means, “[the court] assume[s] the legislature intended for it to have its popularly understood meaning.” Rosenbach, 2019 IL 123186 at ¶ 29. Similarly, where “a term has a settled legal meaning, the courts will normally infer that the legislature intended to incorporate that established meaning into the law.” Id. (citing People v. Johnson, 2013 IL 114639, ¶ 9, 995 N.E.2d 986 (Ill. 2013)).

         Applying the lessons of Rosenbach here, the Court looks first to the statute language. The statues does not define what it means to be “in possession” of biometric information. See 740 ILCS 14/10. Following the “ordinarily understood” rule, however, the Illinois Supreme Court held that possession “occurs when a person has or takes control of the subject property or holds the property at his or her disposal.” People v. Ward, 215 Ill.2d 317, 325, 830 N.E.2d 556 (2005). The Ward court elaborated that the legislature did not intend for the reader “to delve into the legal intricacies of the word ‘possession'” and rejected Kronos' argument that “possession” means exclusive control over property. Id. at 325-26. Here, the Court similarly finds no indication that the ordinary meaning of possession ...

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