The Franchise Memorandum

A federal court in Illinois granted a motion to dismiss a Biometric Information Privacy Act (BIPA) claim against a franchisor brought by a franchisee employee. Stauffer v. Innovative Heights Fairview Heights, LLC, 2022 WL 3139507 (S.D. Ill. Aug. 5, 2022). Madisyn Stauffer was an employee of a Sky Zone franchisee. Sky Zone requires its franchisees to use a particular POS system that collects and stores employee fingerprints and other information. Stauffer sued Sky Zone over this system, alleging that she was never informed in writing of the specific purpose for which her fingerprints were being collected or the length of time for which her fingerprints would be retained. Sky Zone moved to dismiss, arguing that Stauffer failed to plead how Sky Zone took any “active steps” to collect her biometric data, as required for the BIPA to apply to its conduct.

The court sided with Sky Zone. Examining the language of the statute, the court concluded that “active steps” were limited to such actions as storing, using, or accessing biometric data. Enjoying an unlimited right to access the data, as did Sky Zone under the franchise agreements, does not constitute such an “active step.” Because Stauffer only alleged that Sky Zone had the right to access the data, the court dismissed the claim without prejudice.