EAST ST. LOUIS – Symphony nursing homes in Illinois are going out of business, according to lawyers pursuing claims that Symphony’s fingerprint scanning violated the biometric privacy of employees.
Matthew Limoli of John Driscoll’s firm in St. Louis asked Chief U.S. District Judge Nancy Rosenstengel for a conference about the issue on Aug. 9, and she granted the request on Aug. 14.
She presides over a suit against Sycamore Village, a Symphony nursing home in Fairview Heights.
A Cook County judge presides over a suit against Symphony nursing homes mostly in the Chicago region.
Limoli claimed Symphony entities “have no assets to satisfy plaintiffs’ claims except for an eroding insurance policy.”
He claimed Federal Insurance paid about $5 million, and about $3 million remains.
He claimed Federal should file an action for interpleader, which would allow a court to distribute the $3 million.
Driscoll’s firm sued Sycamore Village’s ownership entity Symphony Sycamore on behalf of employee Saroya Roberson in St. Clair County Circuit Court in 2017.
Roberson amended the complaint in 2020 to add ten plaintiffs from other Symphony nursing homes.
Symphony Sycamore removed the complaint to district court, claiming the amount in controversy exceeded a $5 million maximum for state court jurisdiction.
Symphony Sycamore moved to dismiss eight union members among the plaintiffs, claiming they should resolve their claims through their collective bargaining agreement.
Plaintiffs moved to remand the complaint to St. Clair County Circuit Court, asserting exceptions to the $5 million rule.
Rosenstengel denied it.
She dismissed the union members, leaving Olabisi Bodunde and Nicholle Headley as plaintiffs, along with Roberson.
Judges throughout the state, including Rosenstengel, stayed biometric privacy cases in 2021, pending decisions in other courts.
She lifted the stay this March after four of seven Supreme Court Justices ruled that a violation occurs with every scan.
Limoli moved for a settlement conference on Aug. 9.
He claimed that on July 13, plaintiffs informed Federal Insurance that available damages far exceeded the policy limit of $8 million.
“Plaintiffs therefore demanded all remaining coverage in settlement of their claims,” he wrote.
On July 19, Federal responded that the Cook County case was also tendered to it.
Federal stated, “The Policy is eroding, meaning that its coverage has been and continues to be diminished by the costs of defense.”
“Please be advised that Federal is willing to participate in efforts to resolve both of these matters under the Policy,” it added.
“Towards that end, Federal proposes that the plaintiffs in both the Roberson and the McDonald lawsuits agree to engage in a global mediation of these matters,” it continued.
On July 25, Limoli wrote that plaintiffs indicated willingness to participate in mediation.
“Plaintiffs suggested mediation could be most effective if Federal disclosed the amount of coverage remaining on the policy, which defendants previously had declined to do,” he wrote.
Limoli stated that in a conference on July 31, defendants advised Rosenstengel they were in the process of winding down and facilities would be divested or closed.
“Defendants advised that the Policy was the only asset available to satisfy any judgment or settlement,” he wrote.
Limoli stated they advised they would disclose to plaintiffs the amount of coverage remaining.
He added that Federal advised later that day that approximately $3 million remained.
He claimed the circumstances were ripe for interpleader.
He claimed plaintiffs in two actions might expose Symphony or Federal to double liability.
“Given the circumstances just described, defendants’ very limited financial resources that will further be depleted by continued litigation, a settlement conference would aid the parties and Federal in resolving this dispute and would serve the interests of the thousands of putative class members,” he wrote.
Limoli claimed lead counsel for each party and a representative of Federal with authority to bind Federal should be present.
He claimed a magistrate judge would ensure good faith participation among those involved.
Rosenstengel assigned Magistrate Judge Gilbert Sison.
C. J. Baricevic of Belleville and Paul Johnson of Driscoll’s firm also represent Roberson.
The Biometric Privacy Act provides damages of $1,000 for a negligent violation and $5,000 for a reckless or intentional violation.
That’s $480,000 a year for an employee who activates a scan of a negligent employer twice a day for 240 days a year and $2,400,000 a year for an employee with a reckless employer.