WeWork Brings Biometric Data Case to Federal Court

Under the Class Action Fairness Act, WeWork Companies Inc. removed a putative class action suit against the company to the United States District Court for the Northern District of Illinois, Eastern Division from the Circuit Court of Cook County, Illinois (Osborne v. WeWork Companies Inc. et al 1:19-cv-08374).

Plaintiff Elliott Osborne, on behalf of himself and a class of others similarly situated, filed a class action complaint on November 11, 2019, under the Illinois Code of Civil Procedure claiming that WeWork and its subsidiaries and associated companies, including WeWork Companies Inc., had unlawfully collected, retained, used, and divulged Osborne’s biometric data.

WeWork uses high-tech features as part of its marketing. Some of these high-tech features include sensors and facial recognition software that WeWork uses to monitor how the office spaces are used. The company has also used facial recognition software for security purposes. The plaintiff believes that WeWork monitors people using their office spaces. WeWork uses a stored image of people’s faces to recognize when known people enter WeWork office spaces. This is a requirement of using the defendant’s office spaces.

Osborne alleges that these actions by WeWork violate the Illinois Biometric Information Privacy Act (BIPA), because WeWork failed to create and follow a publicly known schedule for retaining his private biometric information, failed to obtain written consent and release from him before obtaining his biometric data, and then shared this information without consent. The proposed class in this case is defined as “All individuals who entered a WeWork space in the State of Illinois and had their facial geometry collected, captured, received, otherwise  obtained, maintained, stored, or disclosed by any Defendant during the applicable statutory period.” The plaintiff is seeking $5,000 in statutory damages per instance of violation of the BIPA, where the violations were intentional, reckless, or both.

The Class Action Fairness Act made this case a matter for federal court because it is a class action suit with minimal diversity in the case and the amount in dispute exceeds $5 million. The defendants cite 28 U.S.C. § 1332(d)(2) to define minimal diversity as a circumstance where “any member of a class of plaintiffs is a citizen of a State different from any defendant.” Osborne is a citizen of Illinois, WeWork Companies Inc. is a Delaware corporation with its principal place of business in New York. After the complaint was initially filed WeWork Companies Inc. was dissolved in a holding company reorganization and reconstituted as WeWork Companies LLC which is also a Delaware corporation. The case has now been assigned to the Honorable Judge Edmond E. Chang.

The plaintiff alleges that WeWork has collected hundreds and possibly thousands of faces in the period that would make them eligible members of the class. Defendants calculate that only 350 class members would cause the amount in controversy to exceed the $5 million minimum for a change in jurisdiction because the defendant alleges three violations of BIPA for each face.

WeWork is facing other suits including being sued by its own shareholders in another class-action suit last month. WeWork is also being taken over by SoftBank after the implosion if its IPO and their former CEO is being sued, along with the company, for discrimination. In this case, WeWork and the defendants are being represented by Shook, Hardy & Bacon. Osborne and the class are being represented by Stephan Zouras.