Class Action Filed Over Kroger’s Alleged Use of Facial Recognition Software in Mariano’s Stores

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The Kroger Company and a subsidiary face a proposed class action that claims the grocery store operators have violated a state privacy law by using store cameras to capture scans of employees’ and shoppers’ faces without their knowledge or consent.

Filed in Cook County, Illinois Circuit Court by a customer and a former employee, the lawsuit claims the defendants have used facial recognition devices in at least three of the 41 Mariano’s grocery store locations throughout the state. With the aid of cameras equipped with facial recognition software, Kroger has collected and stored biometric information—such as scans of individuals’ facial geometries, retinas and irises—and purportedly used the data to track shoplifters, the complaint says.

According to the case, however, Kroger has failed to toe the line of the Illinois Biometric Information Privacy Act—including by failing to obtain consent to collect shoppers biometrics and provide a schedule for the destruction of the data—before collecting, storing and using the information.

One of the plaintiffs says she regularly shops at a Northbrook Mariano’s store and sporadically shops at another location in the same area. Through testimony in unrelated litigation, the plaintiff learned that, “unbeknownst to her,” scans of her facial geometry had been collected through Mariano’s cameras and facial recognition software, per the complaint.

According to the suit, a district manager for Mariano’s testified under oath that the defendants use facial recognition software at the Northbrook store where the plaintiff often shops, and the lawsuit alleges the same software is used at the other Northbrook location as well.

The second plaintiff worked at the defendant’s Hoffman Estates location between November 2018 and May 2019, during which time she overheard other employees discussing the store’s use of facial recognition software, the case goes on. The plaintiff says she observed facial recognition cameras at the entrance and exit of the store, as well as in the employee break room, and saw images on the computer monitors in the store’s office that could be pulled up by loss-prevention workers.

According to the lawsuit, the defendants have knowingly disregarded the BIPA’s requirements by collecting workers’ and shoppers’ biometrics without providing proper disclosures and obtaining informed consent to do so, exposing the individuals to an increased risk of identity theft and fraud. From the complaint:

The plaintiffs contend that “[n]o amount of time or money can compensate” them if their biometric information is compromised by the defendants’ “intentional, reckless, and/or negligent procedures,” adding they would never have provided their biometric data had they known it would be retained “for an indefinite period of time without their consent.”

The plaintiffs look to represent anyone who entered one of the defendants’ Mariano’s locations in Illinois and had their facial geometry scans, biometric identifiers, and/or biometric information “collected, captured, received, or otherwise obtained, maintained, stored, disclosed, or disseminated” during a yet-to-be-determined time period.

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