CHICAGO (Legal Newsline) - A federal judge in Illinois dismissed a would-be biometric privacy class action after the plaintiff disappeared, saying plaintiff lawyers “skirted close to the line” of sanctions by pursuing the case without properly investigating the claims.
First Student moved for sanctions against lawyers at Stephan Zouras LLC after the school-bus operator determined that plaintiff Roxanne Brewton had never applied for work at the company, contradicting her claim First Student had violated her rights under the Illinois biometric privacy act by taking her fingerprints.
“The charade is up,” First Student said in an April 20 filing seeking Rule 11 sanctions against the lawyers. “First Student has been unjustly forced to defend a class action lawsuit brought by an individual who did not apply to First Student for employment as alleged, and who has subsequently abandoned her case.”
The judge overseeing the case partly agreed. In a ruling that same day U.S. District Judge Manish S. Shah dismissed the lawsuit, saying Stephan Zouras “skirted close to the line of a sanctionable failure to conduct a reasonable investigation before filing suit, but the court concludes that counsel did not cross it.”
“While the Stephan Zouras firm seems to have done a bad job vetting the case at the outset, the court does not think the work was so sloppy to be in bad faith or vexatious,” the judge wrote. “Counsel should have pulled back when defendant pointed out the potential problems with naming First Student as a defendant and when plaintiff herself stopped communicating with counsel in February 2021.”
The Illinois Biometric Privacy Act has become a rich source of profits for plaintiff lawyers, since it provides for a private right of action against companies that collect face, iris voice or fingerprint scans without obtaining a written release and providing detailed explanations of how the information will be stored and when it will be destroyed. Stephan Zouras was among the many law firms that sued Facebook over its use of facial-recognition technology, establishing the reach of BIPA far beyond Illinois’ borders. Facebook agreed to settle that lawsuit for more than half a billion dollars last year.
In its motion for sanctions, First Student said Stephan Zouras signed up Brewton as a client and filed a lawsuit on her behalf, seeking class-action status, without ever providing basic information such as where she supposedly applied for work. First Student was forced to search many of its Illinois locations to rule out the possibility she had applied for a job, the company said, since it doesn’t keep centralized employment records.
“It is highly improbable” that lawyers at Stephan Zouras “only now discovered that plaintiff does not have standing to bring a claim against First Student,” the company said. “Rather, plaintiff has been hiding the ball on this issue since the filing of her complaint, which suspiciously does not allege which First Student location she applied to.”
Stephan Zouras attorney Megan Shannon argued in an earlier filing that sanctions weren’t merited because the law firm had “conducted a thorough investigation of the facts, and believed Roxanne had a meritorious claim.”
After First Student conducted a background check suggesting the plaintiff lived in the suburbs north of Chicago and found no records of her applying for work in that area the company moved to dismiss the case. At that point, Shannon said she “attempted to call Roxanne to determine whether defendant’s representations could have any merit.”
Numerous attempts to reach Brewton via phone, email, Facebook and certified mail, “were unsuccessful,” Shannon said. Nevertheless, the law firm said First Student had violated BIPA and asked the judge to keep the case alive for another 30 days while they tried to reach their client.
Judge Shah denied that request, saying “plaintiff has abandoned this litigation,” as she had not communicated with her lawyers since February.
”Suffice it to say that the case reflects poorly on the firm and all three attorneys who entered appearances on behalf of plaintiff,” Shah wrote.
Stephan Zouras, which frequently represents plaintiffs in employment lawsuits, has jousted with defendants before over its tactics, including using websites to recruit clients. The firm settled a biometric privacy lawsuit against ADP in December for $25 million. Stephan Zouras earlier had fought alongside Edelman PC for control of the ADP case against a rival law firm.