# Peatry v. Bimbo Bakeries USA, Inc.

> District Court, N.D. Illinois · February 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10142229

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** February 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10142229

## How later opinions describe it (automated extraction)

- rejecting argument that “if Congress requires employers to engage in collective bargaining on a particular matter, states are powerless to impose any requirements that touch on any aspect of that matter”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LISA PEATRY, individually, and on behalf of )
all others similarly situated, )
)
Plaintiff, )
) No. 19 C 2942
v. )
) Judge Sara L. Ellis
BIMBO BAKERIES USA, INC., )
)
Defendant. )

OPINION AND ORDER
Plaintiff Lisa Peatry, an employee of Defendant Bimbo Bakeries USA, Inc. (“Bimbo”),
filed this putative class action lawsuit alleging that Bimbo violated the Illinois Biometric
Information Privacy Act (“BIPA”), 740 Ill. Comp. Stat. 14/1 et seq., through its collection,
storage, and use of Peatry’s biometric information. Specifically, Peatry brings claims for
(1) Bimbo’s failure to institute, maintain, and adhere to a publicly available retention schedule in
violation of BIPA § 15(a); (2) Bimbo’s failure to obtain informed, written consent before
obtaining biometric information in violation of BIPA § 15(b); and (3) Bimbo’s disclosure of
biometric information before obtaining consent in violation of BIPA § 15(d). Bimbo moves to
dismiss the complaint, arguing that § 301 of the Labor Management Relations Act of 1947 (the
“LMRA”) and the National Labor Relations Act of 1935 (the “NLRA”) preempt Peatry’s
claims.1 Alternatively, Bimbo argues that Peatry has failed to state a BIPA claim and that the
Illinois Workers Compensation Act (the “IWCA”), 820 Ill. Comp. Stat. 305/1 et seq., bars her

1 Bimbo filed its motion under Federal Rule of Civil Procedure 12(b)(3) for improper venue.
Subsequently, the Seventh Circuit clarified that the Court should consider these preemption arguments
under Rule 12(b)(1) for lack of subject matter jurisdiction or as a motion for judgment on the pleadings
under Rule 12(c). Miller v. Sw. Airlines Co., 926 F.3d 898, 901 (7th Cir. 2019). Because Bimbo has not
yet filed an answer, the Court considers Bimbo’s preemption arguments under Rule 12(b)(1).
claims. The Court finds that § 301 of the LMRA preempts Peatry’s claims arising after May 8,
2018, when a collective bargaining agreement governing Peatry’s employment went into effect.
But Peatry may proceed on her pre-May 8, 2018 claims, which neither the NLRA or IWCA
preempt and sufficiently allege BIPA violations.
BACKGROUND2

Bimbo, a bakery product manufacturing company, uses a biometric timekeeping device,
provided by a third party, to track employees’ hours. Upon hiring an employee, Bimbo scans
their fingerprints and enrolls them in an employee database. Employees must then use their
fingerprints to clock in and clock out. Bimbo does not inform its employees that it discloses the
biometric information it collects to its third-party vendor and other third parties that host the
database. Bimbo also does not obtain written releases before collecting the fingerprints or
provide employees with a written, publicly available policy identifying a retention schedule and
guidelines for permanently destroying employees’ fingerprints.
Peatry worked for Bimbo as a machine operator at Bimbo’s facility at 1540 S. 54th

Avenue in Cicero, Illinois. Aryzta owned this facility until Bimbo acquired it on February 9,
2018. Bimbo entered into a collective bargaining agreement (“CBA”) with the Chemical and
Production Workers Union Local No. 30, AFL-CIO (the “Union”), which became effective May
8, 2018. Among other things, the CBA provides Bimbo with certain exclusive management
rights, including “to make and enforce reasonable plant rules of conduct and regulations not
inconsistent with the provisions” of the CBA, “to introduce new and improved methods,
materials, equipment or facilities,” and “to change or eliminate existing methods, materials,

2 The facts in the background section are taken from Peatry’s complaint and are presumed true for the
purpose of resolving the motion to dismiss pursuant to Rule 12(b)(6). See Virnich v. Vorwald, 664 F.3d
206, 212 (7th Cir. 2011). The Court also considers the additional materials submitted by Bimbo when
considering the motion to dismiss pursuant to Rule 12(b)(1). See Apex Digital, Inc. v. Sears, Roebuck &
Co., 572 F.3d 440, 443–44 (7th Cir. 2009).
equipment, or facilities.” Doc. 18-1 at 8. The CBA also sets forth negotiated wage tables.
Finally, as relevant here, the CBA includes a grievance procedure, requiring employees to pursue
“dispute[s] regarding the meaning and application of the terms of” the CBA in accordance with
that procedure. Id. at 12.

During her employment at the facility between September 2016 and February 2019,
Peatry scanned her fingerprints every time she clocked in and out of work as part of the facility’s
timekeeping method.3 Bimbo never informed her of the purposes or length of time for which
Bimbo collected, stored, used, and disseminated her biometric data. Bimbo also never informed
her of a biometric data retention policy or whether Bimbo would at some point permanently
delete her biometric data. Peatry never received or signed a written release authorizing the
collection, storage, use, and dissemination of her biometric data. She would not have provided
her biometric data if she knew that Bimbo would retain it for an indefinite period of time without
her consent. She also would not have agreed to the compensation she received had she known
that Bimbo would retain her biometric data indefinitely.

LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) challenges the Court’s subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). The party asserting jurisdiction has the burden of proof.
United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on
other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). The standard
of review for a Rule 12(b)(1) motion to dismiss depends on the purpose of the motion. Apex
Digital, 572 F.3d at 443–44. If a defendant challenges the sufficiency of the allegations
regarding subject matter jurisdiction (a facial challenge), the Court must accept all well-pleaded

3 Peatry’s complaint alleges that her employment ended in February 2019, while Bimbo’s representative
indicates that his review of the records reflects an end date of March 12, 2019. The end date of her
employment does not affect the pending motion to dismiss.
factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. See id.;
United Phosphorus, 322 F.3d at 946. If, however, the defendant denies or controverts the truth
of the jurisdictional allegations (a factual challenge), the Court may look beyond the pleadings
and view any competent proof submitted by the parties to determine if the plaintiff has

established jurisdiction by a preponderance of the evidence. See Apex Digital, 572 F.3d at 443–
44; Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006).
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-
pleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
ANALYSIS
I. Section 301 Preemption
First, Bimbo argues that § 301 of the LMRA preempts Peatry’s claims arising after May
8, 2018, when the CBA between Bimbo and the Union went into effect. Section 301 preempts
“claims founded directly on rights created by collective-bargaining agreements, and also claims
‘substantially dependent on analysis of a collective-bargaining agreement.’” Caterpillar Inc. v.
Williams, 482 U.S. 386, 394 (1987) (quoting Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3
(1987)). “If the resolution of a state law claim depends on the meaning of, or requires
interpretation of, a collective bargaining agreement, the application of state law is preempted and
federal labor law principles must be employed to resolve the dispute.” Atchley v. Heritage Cable
Vision Assocs., 101 F.3d 495, 499 (7th Cir. 1996); see also Crosby v. Cooper B-Line, Inc., 725

F.3d 795, 797 (7th Cir. 2013) (section 301 preemption “covers not only obvious disputes over
labor contracts, but also any claim masquerading as a state-law claim that nevertheless is deemed
‘really’ to be a claim under a labor contract”).
Bimbo argues that Peatry’s BIPA claims arising after May 8, 2018 require the Court to
interpret the CBA’s management rights provision, which gives Bimbo the right “to make and
enforce reasonable plant rules of conduct and regulations,” as well as “to introduce new and
improved methods, materials, equipment or facilities, or to change or eliminate existing methods,
materials, equipment or facilities.” Doc. 18-1 at 8. Bimbo claims that determining whether the
CBA authorized Bimbo to use the timekeeping system at issue requires consideration of the
scope of these management rights. See Brazinski v. Amoco Petroleum Additives Co., 6 F.3d

1176, 1179 (7th Cir. 1993) (privacy violation suit arose under § 301 because “the company has a
nonfrivolous argument that the surveillance of which the plaintiffs complain is authorized, albeit
implicitly, by the management-rights clause of the agreement, so that the plaintiffs’ claim that
the surveillance invaded their privacy cannot be resolved without an interpretation of the
agreement”). Bimbo also argues that Peatry’s allegations that Bimbo did not sufficiently
compensate her for the retention and use of her biometric data implicates the CBA’s wages
provision because the Court would have to consider whether the wage provision in the CBA
intended to compensate Peatry for the use of the timekeeping system. Because Peatry did not
submit any grievance or request for arbitration, Bimbo contends that Peatry failed to comply
with § 301’s procedural requirements and so the Court must dismiss those claims.
In Miller v. Southwest Airlines Co., the Seventh Circuit recently considered a similar
preemption argument under the Railway Labor Act (“RLA”), 45 U.S.C. § 181 et seq. 926 F.3d

898. In both of the cases consolidated before the Seventh Circuit, the plaintiffs alleged that the
defendants implemented biometric timekeeping systems without the plaintiffs’ consent, did not
publish protocols as required by BIPA, and improperly disclosed the plaintiffs’ biometric
information. Id. at 901. The defendants argued that the plaintiffs had consented to the use of
their biometric identifiers through the applicable collective bargaining agreements’ management
rights clauses. Id. The Seventh Circuit rejected the plaintiffs’ argument that their union could
not qualify as an “authorized agent” that could provide consent and receive notices for BIPA
purposes, noting that “[n]either the statutory text nor any decision by a state court suggests that
Illinois wants to exclude a collective-bargaining representative from the category of authorized
agents.” Id. at 903; see 740 Ill. Comp. Stat. 14/15(b), (d) (requiring entities collecting biometrics

to provide notice to and receive release from “the subject or the subject’s legally authorized
representative”). Therefore, Miller found that the RLA preempted the plaintiffs’ claims, which
involved “retention and destruction schedules for biometric data, and whether [the defendants]
may use third parties to implement timekeeping and identification systems,” as well as whether
the management rights clauses granted authority to the unions to consent to the collection and
use of biometric data. 926 F.3d at 903. Miller governs the Court’s resolution of the preemption
question raised here because the RLA preemption standard is “virtually identical to the pre-
emption standard the Court employs in cases involving § 301 of the LMRA.” Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994). The facts are also almost identical here.
Therefore, under Miller, Peatry’s claims require interpretation of the CBA so that § 301 preempts
her post-May 8, 2018 claims. 926 F.3d at 903–04 (because dispute about collection and use of
biometric information required interpretation of CBA’s management rights and wage provisions,
the “state law is preempted to the extent that a state has tried to overrule the union’s choices on

behalf of the workers”).
Peatry ignores the Seventh Circuit’s Miller decision, despite the fact that the Seventh
Circuit issued Miller before Peatry filed her response. Instead, Peatry only addresses the
underlying district court decisions that the Seventh Circuit considered in Miller, attempting to
distinguish her claims from the facts there. Peatry contends that the plaintiffs in those cases
challenged the defendants’ “decision to implement and use a biometric timekeeping device” and
sought actual damages, while her claims involve statutory violations “stemming from [Bimbo’s]
failure to obtain consent prior to [its] collection, obtainment, use, storage and dissemination of
[Peatry’s] biometrics, as well as its failure to provide public retention and destruction
guidelines.” Doc. 34 at 5–7. But, having compared Peatry’s complaint to the complaints in

those cases, the Court observes no material differences where the plaintiffs in those cases alleged
the same statutory violations and only requested statutory damages as compensation for the
BIPA violations. See Miller v. Sw. Airlines Co., No. 18 C 86, Doc. 22 ¶¶ 72–81, Prayer for
Relief (N.D. Ill. April 2, 2018); Johnson v. United Airlines, Inc., No. 17 C 8858, Doc. 1-1 ¶¶ 46–
55, Prayer for Relief (N.D. Ill. Dec. 8, 2017).
In another attempt to avoid Miller, Peatry argues that BIPA provides her with non-
waivable rights that § 301 cannot preempt. Miller rejected Peatry’s contention that only she, and
not the Union, could consent to Bimbo’s use of her biometric information. 926 F.3d at 903. As
in Miller, the Union was Peatry’s “sole and exclusive bargaining agent with respect to rates of
pay, hours of work and other conditions of employment.” Doc. 18-1 at 8; see 29 U.S.C.
§§ 158(a)(5), 158(d), 159(a). And instead of excluding a union from acting on its members’
behalf with respect to their privacy rights under BIPA, BIPA explicitly allows “an authorized
agent” to receive notices and consent to the collection of biometric information. 740 Ill. Comp.

Stat. 14/15(b), (d); Miller, 926 F.3d at 903–04 (“That biometric information concerns workers’
privacy does not distinguish it from many other subjects, such as drug testing, that are routinely
covered by collective bargaining and on which unions give consent on behalf of the whole
bargaining unit.”).
More importantly, however, Peatry ignores that § 301 may even preempt a nonnegotiable
state remedy that “turns on the interpretation of a collective bargaining agreement.” Atchley, 101
F.3d at 501; Carter v. Tyson Foods, Inc., No. 3:08-CV-209, 2009 WL 4790761, at *8 (N.D. Ind.
Dec. 3, 2009) (“[E]ven non-negotiable statutory rights may be preempted if interpretation of a
collective bargaining agreement was required to resolve the statutory claims.” (citing Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407 n.7 (1988))). Here, Peatry’s BIPA claims

require interpretation of the CBA, meaning that § 301 preempts her BIPA claims regardless of
whether the Court treats her rights under BIPA as nonnegotiable. See Atchley, 101 F.3d at 501.
And although the LMRA does not provide a separate vehicle for asserting claims like the RLA,
the CBA includes a grievance procedure through which Peatry arguably could have raised her
claims.
Because § 301 preempts Peatry’s post-May 8, 2018 claims, the Court must determine the
appropriate remedy. The Supreme Court has indicated that a preempted state law claim “must
either be treated as a § 301 claim, or dismissed as pre-empted by federal labor-contract law.”
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). Employees must exhaust
administrative remedies before bringing suit in federal court unless certain exceptions apply. See
McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 616 (7th Cir. 2001). Peatry has not set
forth allegations to allow the Court to treat her claims as § 301 claims, and it appears she did not
properly exhaust her administrative remedies. Although Peatry may have an argument

concerning the futility of exhaustion or the unavailability of the grievance procedure, the Court
cannot make such determinations on the information before it. The Court therefore finds it
appropriate to dismiss Peatry’s post-May 8, 2018 claims without prejudice and allow Peatry to
evaluate how she wishes to proceed with respect to these preempted claims.
II. NLRA Preemption
Bimbo also argues that the NLRA preempts Peatry’s remaining pre-May 8, 2018 claims.
The Supreme Court has developed two NLRA preemption doctrines, known as Garmon
preemption and Machinists preemption. See San Diego Bldg. Trades Council v. Garmon, 359
U.S. 236 (1959); Lodge 76, Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Wis.
Emp’t Relations Comm’n, 427 U.S. 132 (1976). Garmon preemption “seeks to prevent conflicts

between state and local regulation and Congress’s integrated scheme of regulation embodied in
Section 7 and 8 of the NLRA” and ensures “the NLRB’s primary jurisdiction in cases involving”
those NLRA sections. 520 S. Mich. Ave. Assocs., Ltd. v. Shannon, 549 F.3d 1119, 1125 (7th Cir.
2008). Machinists preemption “forbids both the National Labor Relations Board (NLRB) and
States to regulate conduct that Congress intended ‘be unregulated [and] left to be controlled by
the free play of economic forces.’” Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 65
(2008) (quoting Machinists, 427 U.S. at 140); Cannon v. Edgar, 33 F.3d 880, 885 (7th Cir. 1994)
(“Machinists preemption prohibits state and municipal regulations of areas that Congress left to
the free play of economic forces.”).
As the Miller court recognized, and contrary to Peatry’s position, “how workers clock in
and out is a proper subject of negotiation between unions and employers—is, indeed, a
mandatory subject of bargaining.” Miller, 926 F.3d at 903; see 29 U.S.C. § 158(d). “Similarly,
the retention and destruction schedules for biometric data, and whether [employers] may use

third parties to implement timekeeping and identification systems, are topics for bargaining
between unions and management.” Id. But this does not automatically mean that the NLRA
preempts Peatry’s claims. 520 S. Mich. Ave., 549 F.3d at 1128 (“[A] state law is not preempted
by the NLRA merely because it regulates a mandatory subject of bargaining.”); Spoerle v. Kraft
Foods Glob., Inc., 527 F. Supp. 2d 860, 870–71 (W.D. Wis. 2007) (rejecting argument that “if
Congress requires employers to engage in collective bargaining on a particular matter, states are
powerless to impose any requirements that touch on any aspect of that matter”).
“[T]he NLRA is concerned primarily with establishing an equitable process for
bargaining, and not the substantive terms of bargaining.” 520 S. Mich. Ave., 549 F.3d at 1128.
Its preemptive reach does not extend to a state law that “establishes a minimum labor standard

that does not intrude upon the collective-bargaining process.” Fort Halifax Packing Co. v.
Coyne, 482 U.S. 1, 7 (1987); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 754–55 (1985)
(“No incompatibility exists, therefore, between federal rules designed to restore the equality of
bargaining power, and state or federal legislation that imposes minimal substantive requirements
on contract terms negotiated between parties to labor agreements, at least so long as the purpose
of the state legislation is not incompatible with these general goals of the NLRA.”). Although
Bimbo argues that Peatry’s claims interfere with and attempt to regulate an aspect of labor
relations, the Court disagrees and finds BIPA comparable to a state statute that establishes a
minimum labor standard with which all employers must comply. See Fort Halifax, 482 U.S. at
23 (state statute requiring employers to provide severance pay to certain employees not
preempted by the NLRA); Metro. Life Ins. Co., 471 U.S. at 755 (“Minimum state labor standards
affect union and nonunion employees equally, and neither encourage nor discourage the
collective-bargaining processes that are the subject of the NLRA.”). Nor has Bimbo sufficiently

explained how BIPA’s requirements are incompatible with the NLRA’s concerns “with
establishing an equitable process for determining terms and conditions of employment.” See
Metro. Life Ins. Co., 471 U.S. at 753, 758 (state insurance regulation “designed to implement the
Commonwealth’s policy on mental-health care” did not “limit the rights of self-organization or
collective bargaining protected by the NLRA”). Therefore, the Court cannot find that the NLRA
preempts Peatry’s pre-May 8, 2018 claims so as to require their dismissal.
III. Sufficiency of the Pleadings
Alternatively, Bimbo argues that Peatry has failed to state a BIPA claim because she has
not adequately pleaded negligence, recklessness, or intent. BIPA provides that a plaintiff may
recover statutory damages of $1,000 for negligent violations and $5,000 for intentional or

reckless violations. 740 Ill. Comp. Stat. 14/20(1)–(2). But the need to demonstrate negligence,
intentional action, or recklessness impacts a plaintiff’s recovery, not the underlying substantive
violation of BIPA. See Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186, ¶¶ 33, 36
(“[W]hen a private entity fails to comply with one of section 15’s requirements, that violation
constitutes an invasion, impairment, or denial of the statutory rights of any person or customer
whose biometric identifier or biometric information is subject to the breach. . . . The violation, in
itself, is sufficient to support the individual’s or customer’s statutory cause of action.”); Woodard
v. Dylan’s Candybar LLC, Doc. 46 at 9 (Ill. Cir. Ct. Cook Cty. Nov. 20, 2019) (BIPA’s inclusion
of states of mind serve as “standards of culpability for determining damages,” not as elements of
the violation).
Rule 8 does not require a plaintiff to plead damages with particularity and instead only
requires “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(3). Peatry has sufficiently

complied with this requirement. And even treating state of mind as an element of the violation,
by alleging that Bimbo has made no effort to comply with BIPA, Peatry has pleaded facts to
suggest Bimbo acted with negligence, recklessness, or intent. See Neals v. PAR Tech. Corp., ---
F. Supp. 3d ----, 2019 WL 6907995, at *3 (N.D. Ill. Dec. 18, 2019) (rejecting the defendant’s
argument that the plaintiff failed to include facts that would entitle her to statutory damages
because the rules do not require a plaintiff to prove her case at the pleading stage); Rogers v.
BNSF Ry. Co., No. 19 C 3083, 2019 WL 5635180, at *5 (N.D. Ill. Oct. 31, 2019) (“[T]he BIPA
took effect more than ten years ago, and if the allegations of his complaint are true—as the Court
must assume at this stage—BNSF has made no effort to comply with its requirements. This is
certainly enough, at the pleading stage, to make a claim of negligence or recklessness

plausible.”). But see Namuwonge v. Kronos, Inc., No. 1:19-cv-03239, 2019 WL 6253807, at *5
(N.D. Ill. Nov. 22, 2019) (“Namuwonge’s abstract statements regarding damages are insufficient
for the Court to infer that Kronos acted recklessly or intentionally.”); Rogers v. CSX Intermodal
Terminals, Inc., 409 F. Supp. 3d 612, 618 (N.D. Ill. 2019) (“Rogers’ conclusory statement of
CSX’s intent is insufficient to allow us to infer that CSX acted intentionally or recklessly and
does nothing to distinguish this case from every possible BIPA case where the defendant is
alleged to have failed to meet the strictures of Section 15.”).
IV. IWCA Preemption
Finally, Bimbo advances another preemption argument, contending that the IWCA
preempts Peatry’s BIPA claims. The IWCA provides the exclusive remedy for accidental
injuries that employees sustain in the course of their employment. 820 Ill. Comp. Stat. 305/5(a);

Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990). A plaintiff can avoid IWCA
preemption if she establishes “(1) that the injury was not accidental; (2) that the injury did not
arise from . . . her employment; (3) that the injury was not received during the course of
employment; or (4) that the injury was not compensable under the [IWCA].” Meerbrey, 139 Ill.
2d at 463. Peatry argues that she has not asserted a compensable injury.
“[W]hether an injury is compensable is related to whether the type of injury categorically
fits within the purview of the Act.” Folta v. Ferro Eng’g, 2015 IL 118070, ¶ 23. Peatry claims
that the IWCA only preempts claims for physical injuries or psychological injuries arising out of
physical injuries or stemming from a definite time and place, while Bimbo maintains that
Peatry’s injury should be considered a psychological one compensable under the IWCA. In

Treadwell v. Power Solutions International, Inc., a court in this district extensively addressed the
question presented here. --- F. Supp. 3d ----, 2019 WL 6838940, at *5–6 (N.D. Ill. Dec. 16,
2019). After reviewing the case law and noting that any other conclusion would be “a novel
development,” the court found that the IWCA does not preempt non-physical and non-
psychological injuries like those arising under BIPA. Id. A number of Illinois trial courts have
found similarly, concluding that the “loss of the ability to maintain privacy rights . . . is neither a
psychological nor physical injury and is not compensable under the Act.” McDonald v.
Symphony Bronzeville Park LLC, Doc. 34-5 at 4 (Ill. Cir. Ct. Cook Cty. June 17, 2019); see also
Woodard, Doc. 46 at 9–11; Robertson v. Hostmark Hosp., Doc. 34-1 at 4 (Ill. Cir. Ct. Cook Cty.
July 31, 2019); Fluker v. Glanbia Performance Nutrition, Inc., Doc. 34-4 at 4 Cll. Cir. Ct. Cook
Cty. July 11, 2019). The Court adopts the reasoning from Treadwell and agrees that, under the
current case law, the IWCA does not cover the injury Peatry alleges—the invasion of her privacy
rights. See Treadwell, 2019 WL 6838940, at *5—6. At this stage, the Court allows Peatry’s pre-
May 8, 2018 claims to proceed to discovery.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Bimbo’s motion to
dismiss [17]. The Court dismisses Peatry’s post-May 8, 2018 claims without prejudice.

5 Oy
Dated: February 26, 2020
SARA L. ELLIS
United States District Judge

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10142229. Public record. Not legal advice.