Like most other Oxford students, my day revolves around making the most of my Pret a Manger coffee subscription and surviving the deadly queues of Cornmarket Street. However, particularly in the last two months, the chain has found itself at the centre of a string of contentious legal issues. Since November 2020, in the American state of Illinois, the chain has faced a class-action lawsuit regarding a breach of Biometric Data Laws that span back to 2008, involving 797 of its employees. The case was settled last month for $677,450. Simultaneously, the chain has received5000 direct formal complaints, as well as complaints to the UK’s Advertising Standards Authority (ASA) regarding its coffee subscription and claims of misrepresentation. So, what has Pret a Manger done, and why are they finding themselves in such hot water legally?
Biometric Privacy Violation
In 2008, the State of Illinois introduced a set of Biometric Data Laws - The Biometric Information Privacy Act (BIPA) – which outlines how biometric identifiers and information must be collected, held and disclosed. The Act was passed as a way of awarding ‘heightened protections for biometric privacy rights’; and there is the requirement that employers must provide information regarding how they will use the biometric data and obtain a signed written statement of consent to this use from any employee whose data will be collected.
Since the introduction of the laws, hundreds of class action suits have been brought against employers for violations – namely in relation to misuse of face/voice recognition and hand/eye scans. The class-action lawsuit against Pret a Manger falls under this bracket also. It is alleged that employees at its branches in Illinois (13 locations, all in Chicago) were required to use a timekeeping system that required hand (fingerprint) scans. However, by not gaining written consent, and mishandling the biometric data regarding the destruction of data clauses, Pret A Manger breached BIPA.
In November 2020, Former (April 2018 – January 2019) Pret a Manger employee Kayla Quarles filed the class-action lawsuit to the Cook County US District Court. On 12 January 2022, following a request from Quarles, the court granted preliminary approval to a settlement agreement. The proposed settlement requires the chain to pay $677,450 – divided between the 797 current and former employees. Excluding attorney fees, the compensation works out to around $518 per employee. The settlement will be placed into a non-reversionary Settlement Fund and the employees will “receive an equal, pro-rata distribution without the need to file a claim or take any other action”. Regarding the settlement, US District Court Judge Manish S. Shah commented: ‘the settlement appears to be a reasonable compromise of a complicated case with risk on both sides.
The case is symbolic of growing commercial accountability in light of new technology. The introduction of new technology, and laws constraining their use, presents the opportunity for companies to violate and abuse their power. Cases such as this highlight the necessity for commercial accountability and for legal violations, especially in relatively new sectors, to be recognised and handled.
Coffee Subscription – Misrepresentation?
Pret a Manger introduced their coffee subscription in September 2020 – allowing the purchaser 5 drinks of their choice a day for £20 (now £25) a month. The trademark of the campaign is "If our Baristas brew it, blend it or steam it, you can have it!" However, customers and workers alike have raised concerns regarding the subscription. Ex-Pret a Manger workers commented to the BBC that the introduction of the scheme has led to an increased workload and workers feeling overwhelmed. and customers have noted the widespread ‘unavailability’ of certain drinks, in particular smoothies.
In contrast to the campaign trademark, often, drinks such as smoothies and milkshakes are unavailable; and there are even claims that staff deliberately turn off blending machines, to avoid making such drinks, as they take too long to prepare. Such practice has resulted in Pret a Manger receiving 5000 direct complaints as well as customers approaching the UK’s Advertising Standards Authority (ASA). Following this, ASA has told Pret a Manger that they should "consider reviewing the ads for their subscription service". The authority issued an advice notice which stated "that their ads should not state or imply that the service was available in all store locations, or that it covers their entire range of products if that wasn't the case". Such advice notices are issued when ASA identifies problems in relation to its advertising rules but does not deem the problems so weighty that they merit a comprehensive formal investigation. In this sense, it appears that Pret a Manger’s campaign may have been deemed to pose issues regarding misrepresentation, although not completely constituting the offence.
In order for a statement to amount to an actionable misrepresentation, there must be a false statement of fact or law made by one party to the other, which induced the other party to enter the contract. Following this, Pret a Manger’s advertisement of the coffee subscription, entitling the purchaser to any drink when, in fact, all drinks are likely not available, clearly poses issues. Following this, there has been a public outcry on social media, with customers expressing disappointment at not being able to order the drinks they bought the subscription for. Although Pret a Manger claims that less than 1% of the complaints it has received about the subscription are regarding the lack of frappes or smoothies. Moreover, when Pret a Manger suggested that frappes and smoothies would be removed from the subscription earlier in 2021, the chain listened to ‘public outcry’ and didn’t remove them from the subscription. However, Leon also launched a similar deal in September 2020, but this limited the purchaser to 75 coffees a month, and other drinks, such as teas and hot chocolate, were not included. In comparison to the Pret a Manger subscription, Leon’s subscription was more transparent about what drinks were available. Moreover, when demand became too large to manage, as has been suggested regarding Pret a Manger, Leon announced that they were closing sign-ups. Under this lens, it is clear that the Pret a Manger subscription requires amending, or it may face further legal ramifications and/or public scrutiny. Positively, in response to the advice notice, a spokesperson for Pret a Manger stated: whilst the coffee subscription is “incredibly popular,” the company was “constantly working with our teams and customers to make it better, so that we’re able to continue to deliver the outstanding service our people are known for”. In a larger commercial sense, the interactions between ASA and Pret a Manger prove encouraging regarding legal accountability and ensuring companies do not abuse their power in the public domain.
Pret a Manger’s current legal predicaments are indicative of the necessity for commercial accountability. Updated laws, and government agencies, are fundamental in the process of ensuring good legal practice in the commercial sector. As the situation with Pret a Manger proves, no company is above such good practice. Perhaps Pret a Manger should just stick to brewing coffee… and not lawsuits.