Roberson v. Maestro Consulting Services LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SAROYA ROBERSON, et al.,

Individually, and on Behalf of

All Others Similarly Situated,

Plaintiffs,

v. Case No. 20-CV-00895-NJR

MAESTRO CONSULTING SERVICES

LLC, Individually and d/b/a Symphony

Post Acute Network, et al.,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion to Remand filed by Plaintiffs Saroya

Roberson, Christa Hammond, Tonika Smith, Daphne Williams, Idella Hill, Olabisi

Bodunde, Victoria Brewer, Alyssa Bendersky, Felecia Williams, Attla Dupree, and Jameea

Boykin (“Plaintiffs”) (Doc. 23). Also pending is Defendants’ Motion to Dismiss (Doc. 18).

For the reasons set forth below, Plaintiffs’ Motion to Remand is denied, and Defendants’

Motion to Dismiss is granted in part and denied in part.

FACTUAL & PROCEDURAL BACKGROUND

On December 8, 2017, Plaintiff Roberson filed a Class Action Complaint against

Symphony Sycamore LLC, and several related entities, in the Circuit Court for the

Twentieth Judicial Circuit of St. Clair County, Illinois. Plaintiffs were employed by

Defendants, a network of various nursing homes (Doc. 10-2). To track Plaintiffs’ time and

attendance, Defendants collected, and Plaintiffs scanned, fingerprints or handprints for

time and attendance purposes (Doc. 10-2, at ¶ 113).

On July 2, 2020, Plaintiff Roberson was granted leave to amend her complaint,

adding ten new plaintiffs and seventeen new defendants. Nine of the new plaintiffs were

union members during their respective tenures. The new defendants are allegedly part

of the network of various nursing homes employed by named Plaintiffs and class

members. Plaintiffs allege Defendants violated the Illinois Biometric Information Privacy

Act (BIPA), 740 ILL. COMP. STAT. § 14/1 et seq. Specifically, Plaintiffs allege Defendants

violated sections 15(a), 15(b)(1), 15(b)(2), 15(b)(3), 15(d), 15(e)(1), and 15(e)(2) of BIPA

(Doc. 10-2).

Under BIPA, a private entity must establish and make publicly available a protocol

for retaining and handling biometric data. 740 ILCS 14/15(a). This data must be

destroyed “when the initial purpose for collecting or obtaining such identifiers or

information has been satisfied or within 3 years of the individual’s last interaction with

the private entity, whichever occurs first.” Id. A “private entity” must first inform the

subject or “the subject’s legally authorized representative” in writing about the purpose

of collecting the data, how long the data will be kept, and obtain consent of the subject or

authorized representative. 740 ILCS 14/15(b). Sales, leases, trades, or further actions in

which a private entity may profit from a person’s biometric information are prohibited.

740 ILCS 14/15(c). Disclosures, redisclosures, or other dissemination of a person’s

biometric information are statutorily limited. 740 ILCS 14/15(d). Finally, private entities

must protect biometric information from disclosure using “the reasonable standard of

care within the private entity’s industry . . . . [and] in a manner that is the same as or more

protective than the manner in which the private entity stores, transmits, and protects

other confidential and sensitive information.” 740 ILCS 14/15(e).

On September 2, 2020, Defendants removed the case to this Court, asserting that

the Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, and 1367

(Doc. 10). Specifically, Defendants assert that this Court has federal-question jurisdiction

under 28 U.S.C. § 1331 because certain Plaintiffs’ claims are preempted by the Labor

Management Relations Act (“LMRA”) (Id. at p. 3). Defendants also allege that because

Plaintiffs are alleging the same facts in support of all the separate counts and that

Defendants share a “common liability” based on those facts, Plaintiffs’ claims for the

alleged BIPA violations share a common nucleus, and this Court can properly exercise

supplemental jurisdiction over Plaintiffs’ non-union claims (Id. at p. 10). Defendants

further allege that this Court has original jurisdiction over this matter pursuant to the

Class Action Fairness Act (“CAFA”). 28 U.S.C. § 1332(d).

On September 30, 2020, Plaintiffs moved to remand the case back to state court

(Doc. 23). Defendants filed a memorandum in opposition to Plaintiffs’ Motion to Remand

on October 30, 2020 (Doc. 48). Defendants also filed a timely Motion to Dismiss, arguing

that the First Amended Complaint fails to state a claim under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6) (Doc. 18).

ANALYSIS

I. Plaintiffs’ Motion to Remand

A defendant may remove any case from state court that a plaintiff could have filed

originally in federal court. 28 U.S.C. § 1441(a). The party seeking removal bears the

burden of demonstrating federal jurisdiction, “and federal courts should interpret the

removal statute narrowly, resolving any doubt in favor of the plaintiff’s choice of forum

in state court.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009).

A plaintiff may challenge removal by moving to remand the case back to state

court. Remanding to state court is appropriate for (1) lack of district court subject matter

jurisdiction or (2) a defect in the removal process. 28 U.S.C. §§ 1446, 1447(c); GE Betz, Inc.

v. Zee Co., 718 F.3d 615, 625–26 (7th Cir. 2013).

A. Timeliness

Pursuant to 28 U.S.C. § 1446, a notice of removal of a civil action must be filed

within thirty days after the defendant’s receipt, through service or otherwise, of a copy

of the initial pleading. Section (b)(3) further provides:

[I]f the case stated by the initial pleading is not removable, a notice of

removal may be filed within 30 days after receipt by the defendant,

through service or otherwise, of a copy of an amended pleading, motion,

order or other paper from which it may first be ascertained that the case

is one which is or has become removable.

28 U.S.C. § 1446(b)(3). The time limits in Section 1446 are mandatory, and the failure to

comply with those limits bars removal. N. Ill. Gas Co. v. Airco Indus. Gases, a Div. of Airco,

Inc., 676 F.2d 270, 273 (7th Cir. 1982).

Plaintiffs contend that the thirty-day removal clock began to run on July 2, 2020,

when Defendants’ counsel was in possession of a formally approved amended pleading.

The thirty-day removal clock does not begin to run, however, until a defendant is

formally served with the complaint. See Dultra v. U.S. Med. Home, Inc., 2014 WL 1347107,

at *3 (N.D. Ill. Apr. 4, 2014) (“[f]ormal service is required to trigger the 30–day clock, as

the Supreme Court held 15 years ago in Murphy Brothers v. Michetti Pipe Stringing, 526

U.S. 344 (1999))”; Dent v. Renaissance Mktg. Corp., 2014 WL 5465006, at *6 (N.D. Ill. Oct. 28,

2014) (same).

Here, the thirty-day clock began when Defendants were formally served with the

First Amended Complaint on August 3, 2020. The Notice of Removal was filed on

September 2, 2020, just within the thirty-day period. Accordingly, Defendants’ Notice of

Removal was timely.

B. Standing

Article III of the Constitution limits the judicial power of federal courts to

adjudicating “cases” and “controversies.” Hein v. Freedom From Religion Foundation, Inc.,

551 U.S. 587, 597 (2007). “One of the controlling elements in the definition of a case or

controversy under Article III is standing.” Id. (internal quotations, citations, and

alterations omitted). “[T]he irreducible constitutional minimum of standing consists of

three elements.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). A plaintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable to the defendant’s challenged

conduct, and (3) is redressable by the Court. Id.

“[T]he Supreme Court made [it] ‘crystal clear’ in Spokeo, ‘Article III standing

requires a concrete injury even in the context of a statutory violation.’” Fox v. Dakkota

Integrated Sys., LLC, 2020 WL 6738112, at *4 (7th Cir. Nov. 17, 2020) (quoting Spokeo, 136

S. Ct. at 1549). A statutory violation, with an intangible harm, satisfies the injury-in-fact

requirement, when it presents “an ‘appreciable risk of harm’ to the underlying concrete

interest [the legislature] sought to protect by enacting the statute.” Bryant v. Compass Grp.

USA, Inc., 958 F.3d 617, 621 (7th Cir. 2020) (quoting Groshek v. Time Warner Cable, Inc., 865

F.3d 884, 887 (7th Cir. 2017)); see also Fox, 2020 WL 6738112 at *4 (“[t]o determine whether

an intangible harm satisfies the injury-in-fact requirement in a statutory case, both the

legislature’s judgment and historical judicial practice ‘play important roles’”).

i. Article III Standing for Plaintiffs’ Section 15(a) Claims

Plaintiffs assert that their section 15(a) claims must be remanded for lack of Article

III standing. Four recent BIPA cases hold the keys to this question. See Fox, 2020 WL

6738112 at *4 (noting “[t]hree recent BIPA cases hold the keys to the standing question”).

In the first case, Miller v. Sw. Airlines Co., 926 F.3d 898 (7th Cir. 2019), the Court concluded

that the union employees’ sections 15(a) and 15(b) claims were concrete injuries sufficient

to confer Article III standing because the collection and use of biometrics for employee

timekeeping is a subject of collective bargaining. Id. at 902. In the second case, Patel v.

Facebook, Inc., 932 F.3d 1264 (9th Cir. 2019), the Ninth Circuit recognized that the Illinois

statute gives individuals the “right not to be subject to the collection and use of [his or

her] biometric data.” Id. at 1274. As a result, the section 15(a) claims, the failure to

maintain data retention and destruction protocols of users’ biometric data, and section

15(b) claims, the failure to obtain informed consent before collecting users’ biometric

data, were sufficient to confer Article III standing because the BIPA claims “actually

harm[ed] or pose a material risk of harm to those privacy interests.” Id. at 1275.

The third case, Bryant, 958 F.3d 617, unlike Miller, did not involve a unionized

employee or even an employee suing her employer. Additionally, unlike the section 15(a)

claims in Patel, the section 15(a) claims in Bryant were limited to defendants not making

their data-retention schedule and data-destruction guidelines publicly available. Bryant,

958 F.3d at 619. The Court held that this type of 15(a) violation was insufficiently

particularized to support Article III standing because “[it] is owed to the public generally,

not to particular persons whose biometric information the entity collects.” Id. at 626.

The fourth case, Fox, 2020 WL 6738112 at *6-7, further clarified when section 15(a)

claims have standing under Article III. In Fox, a plaintiff filed a proposed class action in

state court alleging that “her former employer, collected, used, retained, and disclosed

her handprint for its timekeeping system.” Id. at *1. The defendants removed the case

under CAFA. Id. Relying on Bryant, the district court held the section 15(a) claims lacked

Article III standing and remanded the section 15(a) claims to state court. Id.

On appeal, the Seventh Circuit pointed out that unlike Bryant, “[plaintiff’s] section

15(a) claim does not allege a mere procedural failure to publicly disclose a data-retention

policy.” Id. The Seventh Circuit explored the legislature’s judgment to expressly

condition lawful collection of biometric data on informed consent in section 15(b) and the

legislature’s judgment to expressly condition lawful retention of biometric data on the

continuation of the initial purpose for which the data was collected in section 15(a). Id. at

*7. By exploring the legislature’s judgment in sections 15(a) and 15(b), and three recent

BIPA cases—Miller, Patel, and Bryant—the Court concluded “an unlawful retention of a

person’s biometric data is as concrete and particularized an injury as an unlawful

collection of a person’s biometric data.” Id. “If the latter qualifies as an invasion of a

‘private domain, much like an act of trespass would be,’[ ] then so does the former.” Id.

(quoting Bryant, 958 F.3d at 624). Accordingly, the Court in Fox held that the plaintiff’s

section 15(a) claims were sufficient to plead an injury in fact for purposes of Article III

standing.

Although Fox is distinguishable on multiple fronts, Fox controls the Court’s

decision with respect to Plaintiffs’ section 15(a) claims. One difference is the complaint in

Fox contained all the section 15(a) claims in the same count, but Plaintiffs’ section 15(a)

claims are in separate counts. Another difference is the named plaintiff in Fox was

represented by a union. Here, a few of the named Plaintiffs were not union members

during their tenure with Defendants.

Plaintiffs’ separate counts for the section 15(a) claims both plead an injury in fact

for purposes of Article III standing. Plaintiffs’ first count against each Defendant is titled

“Violation of 740 ILCS 14/15(a) Failure to Properly Establish Publicly-Available Policy”

(Doc. 10-2). Plaintiffs allege “[Defendants] did not properly develop a written policy,

made available to the public, establishing a retention schedule and guidelines for

permanently destroying biometric identifiers and biometric information when the initial

purpose for collecting or obtaining such identifiers or information was satisfied or within

3 years of the individual’s last interaction with the private entity, whichever occurred

first” (Doc. 10-2 ¶¶ 131, 139, 189, 197, 247, 255, 305, 313, 363, 371, 421, 429, 479, 487, 537,

545, 595, 603, 653, 661, 711, 719, 769, 777, 827, 835, 885, 893, 943, 951, 1001, 1009, 1059, 1067,

1117, 1125, 1175, 1183, 1233, 1241, 1291, 1299). This is more than the mere procedural

failure to publicly disclose a data-retention policy in Bryant. Instead, it is more like the

section 15(a) claims alleged in Patel.1 Plaintiffs’ second count against each Defendant is

titled “Violation of 740 ILCS 14/15(a) Failure to Comply with Established Retention

Schedule and Destruction Guidelines”(Doc. 10-2). Specifically, Plaintiffs allege that

“[Defendants] did not comply with its established retention schedule and destruction

guidelines” (Doc. 10-2) (emphasis added). This is also more than the mere procedural

failure to publicly disclose a data-retention policy.

The straightforward application of Fox is not impacted because two of the eleven

named Plaintiffs were non-union members during their tenure with Defendants. In Fox,

the Court did not merely rely on Miller to determine standing. Rather, the Court

discussed Miller and other nonemployment cases to clarify when section 15(a) claims

have standing under Article III. The Court confirmed that the plaintiffs in Fox had Article

III standing aside from a “straightforward application of Miller.” Id. at *7-8.

The critical issue in Fox is the same here. In Fox, the Court explained that “[t]he

BIPA requirement to implement data retention and destruction protocols protects a

person’s biometric privacy just as concretely as the statute’s informed-consent regime.”

Id. at *7. As a result, a “[plaintiff] alleges a concrete and particularized invasion of her

privacy interest in her biometric data stemming from [defendant’s] violation of the full

panoply of its section 15(a) duties—the duties to develop, publicly disclose, and comply

with data retention and destruction policies—resulting in the wrongful retention of her

1 In Patel, the section 15(a) claims were the failure to maintain data retention and destruction protocols of

users’ biometric data. Patel, 932 F.3d at 1274. Of course, Patel is not binding. In Fox, however, the Seventh

Circuit not only analyzed Patel, but also recognized it as one of the “[t]hree recent BIPA cases [that] hold

the keys to the standing question.” Fox, 2020 WL 6738112 at *4.

biometric data after her employment ended, beyond the time authorized by law.” Id. at

*1 (emphasis added). Similarly, Plaintiffs allege a concrete and particularized invasion of

their privacy interests in their biometric data stemming from Defendants’ violation of the

full range of its section 15(a) duties resulting in the wrongful retention of their biometric

data after Plaintiffs’ employment ended.

Accordingly, Plaintiffs’ section 15(a) claims are sufficient to plead an injury in fact

for Article III standing.

ii. Article III Standing for Plaintiffs’ Sections 15(b)(1), (b)(2), (b)(3), (d), (e)(1), (e)(2)

Claims

“As a jurisdictional issue, the Court has a responsibility to address standing sua

sponte.” Snider v. Heartland Beef, Inc., 2020 WL 4880163, at *2 (C.D. Ill. Aug. 14, 2020) (citing

Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)).

The Seventh Circuit has already assessed standing for section 15(b) claims. In

Bryant, 958 F.3d at 626, the Court reasoned that “the informed-consent regime laid out in

section 15(b) is the heart of BIPA” and that “its purpose is to ensure that consumers

understand, before providing their biometric data, how that information will be used,

who will have access to it, and for how long it will be retained.” As a result, failure to

adhere to section 15(b)’s informed-consent regime inflicts a concrete injury because the

relevant information is “substantive and personal” and, “[e]quipped with the missing

information,” a person might opt to forgo use of the relevant device. Id.

Plaintiffs have Article III standing to pursue their section 15(b) claims under a

straightforward application of Bryant. Plaintiffs’ alleged section 15(b) injury is concrete

and particularized for the reasons summarized above: Defendants allegedly failed to

provide Plaintiffs with information about the collection, storage, and use of their

fingerprint data, and armed with this information, Plaintiffs may have chosen to forgo

the timekeeping system.

The Seventh Circuit has not addressed Article III standing for claims under section

15(d), but at least two district courts in this circuit have found that a plaintiff’s claims

under section 15(d) satisfy Article III’s injury-in-fact requirement. In Cothron v. White

Castle Sys., Inc., 467 F. Supp. 3d 604, 613 (N.D. Ill. 2020), the court reasoned that “[s]ection

15(d) requires entities to obtain a person’s consent when disclosing or disseminating an

individual’s biometric data.” The court continued acknowledging that “[s]ection 15(d)

forms a piece of the ‘informed-consent regime’ at the heart of BIPA.” Id. As a result, the

court held that informational injury the plaintiff suffered was concrete because “the

relevant information—that [plaintiff’s employer] planned to disseminate [plaintiff’s] data

to third parties—is personal and substantive and would have provided [plaintiff] an

opportunity to object to the way her data was being handled or to opt out of the system

entirely.” Id.; see also Figueroa v. Kronos Inc., 454 F. Supp. 3d 772, 781–83 (N.D. Ill. 2020)

(“[w]ith both [section 15(b) and section 15(d)] claims, Plaintiffs were denied an

opportunity to withhold their consent to the collection or dissemination of their data . . . .

Under Crabtree, the denial of that opportunity is sufficiently concrete to confer

standing. . . .”).

Here, Plaintiffs allege Defendants are private entities that collect biometric

information from employees, and Defendants “disclosed, redisclosed, or disseminated

the biometric information of plaintiffs and the class members to, through, and/or among

others, including but not limited to other [Defendants’] entities or persons associated

with [Defendants]” (Doc. 10-2). Applying the reasoning and analysis of Cothron, Plaintiffs

have Article III standing to pursue their section 15(d) claims.

Plaintiffs also have Article III standing to pursue their section 15(e) claims. The

analysis provided in Fox suggests that Plaintiffs’ alleged injuries from section 15(e)

violations satisfy Article III’s injury-in-fact requirement. In Fox, the Court explored the

legislature’s judgment in sections 15(a) and 15(b), and three recent BIPA cases—Miller,

Patel, and Bryant—and concluded “an unlawful retention of a person’s biometric data is

as concrete and particularized an injury as an unlawful collection of a person’s biometric

data.” Id. at *7. Section 15(e) requires private entities retaining a person’s biometric data

to protect biometric information from disclosure using “the reasonable standard of care

within the private entity’s industry . . . [and] in a manner that is the same as or more

protective than the manner in which the private entity stores, transmits, and protects

other confidential and sensitive information.” 740 ILCS 14/15(e). Framed this way,

section 15(e) forms a piece of the retention regime. Like their section 15(a) claims, the

concrete injury suffered by Plaintiffs was the unlawful retention of their biometric data by

Defendants because Defendants allegedly failed to comply with the standard of care

within their industry and in a manner that is the same or more protective than the manner

in which Defendants store, transmit, and protect other confidential and sensitive

information. 740 ILCS 14/15(e).

C. Subject Matter Jurisdiction

Federal courts “possess only that power authorized by Constitution and statute.”

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (7th Cir. 2005) (quoting

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). District courts have

subject matter jurisdiction only in cases that raise a federal-question and cases in which

there is diversity of citizenship among the parties. See 28 U.S.C. §§ 1331–32. Unless

Plaintiffs’ case falls into one of these two categories, this Court must remand.

i. Jurisdiction Under Class Action Fairness Act

Defendants removed this case under 28 U.S.C. § 1332(d), alleging that this Court

has subject matter jurisdiction under CAFA. “[T]he party asserting federal jurisdiction

under CAFA must establish that the requirements of § 1332(d) are satisfied.” Sabrina

Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 578 (7th Cir. 2017). “To meet this

burden, a defendant seeking to remove to federal court must file in the district court a

notice of removal ‘containing a short and plain statement of the grounds for removal.’”

Id. (quoting 28 U.S.C. § 1446(a)). “By design, § 1446(a) tracks the general pleading

requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure.” Dart Cherokee

Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014). The Supreme Court explained

that “Congress, by borrowing the familiar ‘short and plain statement’ standard from Rule

8(a), intended to ‘simplify the ‘pleading’ requirements for removal’ and to clarify

that courts should ‘apply the same liberal rules [to removal allegations] that are applied

to other matters of pleading.’” Id. (alteration in original) (quoting H.R. Rep. No. 100–889,

p. 71 (1988)).

“A federal court’s jurisdiction under CAFA is determined at the time of removal.”

Cleary v. Philip Morris Inc., 656 F.3d 511, 515 (7th Cir. 2011) (citing In re Burlington N. Santa

Fe Ry. Co., 606 F.3d 379, 380 (7th Cir. 2010)). Under CAFA, federal courts have jurisdiction

over cases in which (1) the class consists of 100 or more members, see 28 U.S.C.

§ 1332(d)(5)(B); (2) any plaintiff is a citizen of a state different from that of any defendant,

28 U.S.C. § 1332(d)(2)(A); and (3) the aggregate amount of the plaintiffs’ claims exceeds

$5 million, exclusive of interest and costs. 28 U.S.C. §§ 1332(d)(2), (d)(6).

Defendants established, at the time of removal, the requirements for jurisdiction

under CAFA. Minimal diversity exists because Defendants are organized under the laws

of Illinois and maintain their principle places of business in Illinois (Doc. 10, p. 11),2 and

Defendants allege “at least one putative class member—either all or some of the ones

with non-Illinois addresses mentioned [ ], or an employee or former employee [of] one of

the other Defendants—is diverse from the Defendants, which at this stage of the

proceedings is sufficient to satisfy minimum diversity” (Id. at p. 14).3 The proposed class

involves more than the requisite 100 members, as Plaintiffs allege that the putative class

2 CAFA states that “an unincorporated association shall be deemed to be a citizen of the State where it has

its principal place of business and the State under whose laws it is organized.” 28 U.S.C. § 1332(d)(10).

3 Residency is not equivalent to citizenship. See Myrick v. WellPoint, Inc., 764 F.3d 662, 664 (7th Cir. 2014)

(“[c]itizenship means domicile (the person’s long-term plan for a state of habitation) rather than just current

residence”). Here, however, Defendants did not merely allege residency. Defendants used addresses to

explain why they believed class members were citizens outside of Illinois. See Doc. 10, pp. 13-14.

Defendants did not need to explain why they believed class members were citizens outside of Illinois. A

defendant’s allegations of citizenship may be based solely on information and belief. See Dancel v. Groupon,

Inc., 940 F.3d 381, 385 (7th Cir. 2019) (noting that an allegation “even if only ‘on information and belief,’

that a specific member of the putative class had ‘a particular state of citizenship’” may be preliminarily

accepted as a basis for subject matter jurisdiction).

includes “hundreds or thousands of members” (Doc. 10-2, p. 32). As to the amount in

controversy, Plaintiffs allege “an amount less than $75,000.00” for each member (Doc. 10-

2, p. 27). At the same time, Plaintiffs are seeking statutory damages of $5,000 for each

intentional and reckless violation of BIPA pursuant to 740 ILCS 14/20(2) and damages of

$1,000 for each negligent violation of BIPA pursuant to 740 ILCS 14/20(1). Given the size

of the class (more than 552 workers),4 the number of causes of action under BIPA (169

counts), and the penalties provided by state law—the amount in controversy meets the

required threshold.

Instead of contesting that the parties to this action are minimally diverse or that

the amount in controversy exceeds $5 million, Plaintiffs argue that the “home-state

controversy” and “local controversy” exceptions apply. Under both exceptions, Plaintiffs

have the burden of persuasion on whether two-thirds or more of the members of the

proposed class and the primary defendants are citizens of the original filing state. Hart v.

FedEx Ground Package Sys. Inc., 457 F.3d 675, 681 (7th Cir. 2006); 28 U.S.C. § 1332(d)(4)(A)-

(B).5

Defining the class to include only “Illinois citizens” whose biometric data was

captured by Defendants is not helpful. See Myrick v. WellPoint, Inc., 764 F.3d 662, 665 (7th

4 Plaintiffs stated in a state appellate court filing that the class includes “a minimum of 552 workers”

(Doc. 10-17, p. 4).

5 Under the “local controversy” exception, a plaintiff has the burden of persuasion on three additional

requirements: (1) at least one defendant is a defendant from whom members of the proposed plaintiff class

seek significant relief, whose alleged conduct forms a significant basis of the asserted claims, and who is a

citizen of the original filing state; (2) the principal injuries were incurred in the original filing state; and

(3) no other class action asserting the same or similar factual allegations has been filed against any of the

defendants within the three years preceding the filing of the case. 28 U.S.C. § 1332(d)(4)(A); Hart, 457 F.3d

at 681.

Cir. 2014) (noting “plaintiffs needed to produce some evidence that would allow the court

to determine the class members’ citizenships on the date the case was removed”); but see

In re Sprint Nextel Corp., 593 F.3d 669, 676 (7th Cir. 2010) (acknowledging that “plaintiffs

could have guaranteed that the suit would remain in state court” if “the plaintiffs might

have defined their class as all Kansas citizens who purchased text messaging from Sprint

Nextel or an alleged coconspirator”).

Plaintiffs fail to meet their burden for this Court to find that two-thirds of the class

members are Illinois citizens. Plaintiffs only provide time system employee data

produced by one defendant and claim that “[a]t least 95% of the Plaintiffs’ class are

Illinois citizens and all of the Defendants are by admission Illinois citizens from which

significant legal relief is being sought by all members of the Plaintiffs’ class for

Defendants’ capturing, collecting, and use of the Plaintiffs’ biometric information and

identifiers in the State of Illinois” (Doc. 23, p. 24). Plaintiffs “ignore the potential non-

Illinois citizens employed by the newly named Defendants with facilities in the

Chicagoland area” (Doc. 48, p. 22). The number of class members also remains unclear.

Accordingly, jurisdiction exists by way of CAFA because Plaintiffs fail to carry

their burden of persuasion on whether two-thirds or more of the members of the

proposed plaintiff class and the primary defendants are citizens of the original filing state.

ii. Jurisdiction as to Union Members’ Claims Under Federal-Question Jurisdiction

Defendants also removed this case under 28 U.S.C. § 1331, arguing that Plaintiffs’

claims regarding union members are preempted by Section 301 of the LMRA. Plaintiffs

counter that their state law BIPA claims are neither preempted by the NLRA nor the

LMRA because their complaint makes no reference to any federal statute, law, collective

bargaining agreement, or union affiliation (Doc. 23).

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.’” Gray v. University of Chicago Medical Center, Inc., 2020

WL 1445608, at *2 (N.D. Ill. Mar. 25, 2020) (quoting Caterpillar Inc. v. Williams, 482 U.S.

386, 394 (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).

Plaintiffs’ claims regarding union members are preempted by Section 301 of the

LMRA under a straightforward application of Miller. To be sure, the Seventh Circuit

explained:

[T]here can be no doubt that how workers clock in and out is a proper subject of negotiations

between unions and employers—is, indeed, a mandatory subject of bargaining.

* * *

A state cannot remove a topic from the union’s purview and require direct

bargaining between individual workers and management. And Illinois did not try.

Its statute provides that a worker or an authorized agent may receive necessary

notices and consent to the collection of biometric information.

* * *

[O]ur plaintiffs assert a right in common with all other employees, dealing with a

mandatory subject of bargaining. It is not possible even in principle to litigate a dispute

about how an air carrier acquires and uses fingerprint information for its whole workforce

without asking whether the union has consented on the employees’ collective behalf . . . .

[I]f a dispute necessarily entails interpretation or administration of a collective

bargaining agreement, there’s no room for individual employees to sue under

state law—in other words, state law is preempted to the extent that a state has tried

to overrule the union’s choices on behalf of the workers.

Id. at 903-4 (emphasis added) (concluding ”[defendant] was entitled to remove the suit to

federal court under federal-question jurisdiction”).

Here, Plaintiffs allege that Defendants violated BIPA when they utilized “a finger

or hand print reader/scanner for the purposes of measuring workers’ time and

attendance” as “a primary method to ‘clock-in’ at one or more of the subject Illinois

locations” (Doc. 10-2, ¶ 113). Plaintiffs further allege that Defendants “are not first

informing employees in writing that their biometric information is or will be collected

and stored; they are not first informing employees in writing of the specific purpose and

length of term for which their respective biometric identifiers or biometric information

will be collected, stored, and/or used; nor are they first securing written releases from

each respective employee.” (Id. at ¶ 114).

Plaintiffs attempt to distinguish Miller and argue that it does not apply because

Miller involved the RLA which solely governs the relationship between management and

labor in the air and rail industries. This misses the critical issue. The fact that Miller

addressed “common carriers” or analyzed the RLA is insignificant. Rather, “[t]he rule

and reasoning of Miller apply to the LMRA because the RLA preemption standard is

‘virtually identical to the pre-emption standard the Court employs in cases involving

§ 301 of the LMRA.’” Gray, 2020 WL 1445608 at *3 (quoting Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246, 260 (1994)).6

6 Indeed, the Seventh Circuit in Fox, 2020 WL 6738112, suggested that Miller leads to a straightforward

conclusion regarding preemption. See id. at *8 (remanding the issue of whether a union member’s BIPA

claim was preempted by the LMRA because the district judge did not address the issue and the parties did

not brief it, but acknowledging that “the answer appears to flow directly from Miller”).

Plaintiffs also argue that “§ 301 ‘complete preemption’ applies with force where

state laws create a risk of taking away employee rights provided by collective bargaining

or becoming entangled in the collective bargaining process, not when state laws add rights

that are independent of the agreement, such as the biometric information privacy

protection afforded by BIPA” (Doc. 23, p. 17). This argument is unpersuasive, as district

courts within this circuit have consistently found that BIPA claims from unionized

employees are preempted by federal labor law. See e.g., Peatry v. Bimbo Bakeries USA, Inc.,

2020 WL 919202, at *3 (N.D. Ill. Feb. 26, 2020) (concluding that under Miller, a union

member’s BIPA claims from its timekeeping system “require interpretation of the CBA

so that § 301 preempts her post-May 8, 2018 claims”); Gray, 2020 WL 1445608, at *4 (noting

“Seventh Circuit’s guidance makes clear” that union member’s BIPA claims from a

medication dispensing machine “require interpretation of the CBA—at the very least its

management rights clause”); Darty v. Columbia Rehab. & Nursing Ctr., LLC, 468 F. Supp.

3d 992, 995 (N.D. Ill. 2020) (acknowledging that “courts in this district have consistently

found federal preemption by Section 301 of the LMRA in similar BIPA cases”); Williams

v. Jackson Park SLF, LLC, 2020 WL 5702294, at *3 (N.D. Ill. Sept. 24, 2020) (disagreeing with

plaintiff’s contention “that his claim should not be preempted because the union cannot

waive his statutory privacy rights under BIPA” and acknowledging that this was directly

addressed in Miller “when it held that BIPA’s text allows authorized agents, such as

unions, to act on members’ privacy rights”); Hernandez v. True World Foods Chicago, LLC,

2020 WL 7027727, at *2 (N.D. Ill. Nov. 30, 2020) (“[d]istrict courts within this circuit have

uniformly followed Miller and have found that BIPA claims from unionized employees

are preempted by federal labor law”); Fernandez v. Kerry, Inc., 2020 WL 7027587, at *4-5

(N.D. Ill. Nov. 30, 2020) (applying Miller and noting that “at least three courts within this

District have examined the similarity of the RLA and LMRA preemption standards and

have held that Miller applies to nearly identical BIPA claims, which are preempted by the

LMRA”).

Plaintiffs also note that there is no basis to find that the unions provided “written

releases” to Defendants and the “CBAs are silent as to biometric-based timekeeping,

BIPA, and Plaintiffs’ rights and Defendant’s obligations under it” (Doc. 23, pp. 18-22).

These arguments are likewise unavailing. As explained in Hernandez, 2020 WL 7027727

at *3, “plaintiffs’ arguments regarding whether the union provided a waiver or a written

release necessarily require interpretation of the CBA and the union’s authority

thereunder, thus leading to preemption.” In fact, Miller addressed the impact of CBAs

being silent as to biometric information and held that “[w]hether [defendant’s] unions

did consent to the collection and use of biometric data, or perhaps grant authority through

a management-rights clause, is a question for an adjustment board.” Miller, 926 F.3d at

903; see Williams, 2020 WL 5702294 at *3 (acknowledging that “neither the CBA in the

present case or the Miller case mentioned biometric information. But the Miller Court also

addressed this question when it determined that whether the CBA management rights

clause gave rise to consent regarding biometric data is a question for an adjustment

board”).

Rather than following binding precedent and persuasive authority from district

courts within this circuit, Plaintiffs ask the Court to adopt the reasoning of four state court

decisions. See Doc. 23, p. 21 (citing Thomas v. KIK Custom Productions, No. 19-CH-2471

(Cir. Ct. Cook Cnty., Dec. 19, 2019); Winters v. Aperion Care Inc., 19-CH-6579 (Ill. Cir. Ct.

Feb. 11, 2020); Walton v. Roosevelt University, 19-CH-04176 (Ill. Cir. Ct. May 5, 2020);

Watson v. Legacy Healthcare, No. 18-CH-03425 (Cir. Ct. Cook Cnty., June 10, 2020)). Of

course, unlike this Court, Illinois state courts are not bound by Seventh Circuit precedent.

See Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (district judges

must follow the decisions of the Seventh Circuit whether or not they agree).

Significantly, two of the state court decisions, Thomas and Winters, were decided

before Williams, Gray, or Peatry were issued. This is significant, because the state courts

“did not have the benefit of the district courts’ application of Miller’s holding to

preemption under the LMRA.” Fernandez, 2020 WL 7027587 at *6. “In distinguishing

Miller, Walton merely adopted the reasoning of Winters.” Id. As for Watson, the most

recent case, it merely reinforces the fact that Illinois state courts are not bound by Seventh

Circuit precedent. See Watson, No. 18-CH-03425 at *7 (holding that “the Court respectfully

declines to follow the nonbinding Seventh Circuit case of Miller” and “the Northern

District of Illinois cases that followed it . . . .”).

Accordingly, this Court finds that there is subject matter jurisdiction over the

union claims.

iii. Jurisdiction as to Non-Union Claims Under Supplemental Jurisdiction

Plaintiffs do not contest or note any issue of supplemental jurisdiction over the

non-union claims. District courts “may exercise supplemental jurisdiction over state law

claims that share ‘a common nucleus of operative facts’ with a federal claim properly

before the court.” Bailey v. City of Chicago, 779 F.3d 689, 696 (7th Cir. 2015); 28 U.S.C.

§ 1367.

Here, the claims of all non-union class members are based on a common nucleus

of operative facts as the union class members. Both focus on Defendants using a

fingerprint scanner for the purposes of measuring time and attendance and Defendants

failing to inform employees in writing that their biometric information was being

collected or stored (Doc. 10-2, ¶¶ 113-114). Because this Court has subject matter

jurisdiction over the union class members claims, the Court finds it appropriate to

exercise supplemental jurisdiction over the remaining non-union claims.

I. Defendants’ Motion to Dismiss for Lack of Jurisdiction

To survive a motion seeking dismissal under Federal Rule of Civil Procedure

12(b)(1), a plaintiff must “‘clearly . . . allege facts demonstrating’ each element” required

to establish he or she has standing. See Spokeo, 136 S.Ct. at 1547 (quoting Warth v. Seldin,

422 U.S. 490, 518 (1975)). The “irreducible constitutional minimum” of standing requires

a showing that a plaintiff has “(1) suffered an injury in fact, (2) that is fairly traceable to

the challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Id.

Whether a defendant argues that a complaint fails to (1) properly state a claim, or

(2) properly plead the elements of standing, courts apply the same analysis. See Silha v.

ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). The factual allegations contained within a

complaint must “raise a right to relief above the speculative level, on the assumption that

all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 554-55 (2007) (internal citations omitted); see also Warth, 422 U.S.

at 501 (“trial and reviewing courts must accept as true all material allegations of the

complaint, and must construe the complaint in favor of the complaining party”).

Complaints that contain only “naked assertion[s] devoid of further factual enhancement”

will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

omitted).

Further, courts “need not accept as true legal conclusions, or threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements.” Brooks v.

Ross, 578 F.3d 574, 581 (7th Cir. 2009). On the other hand, “[a]t the pleading stage, general

factual allegations of injury resulting from the defendant’s conduct may suffice, for on a

motion to dismiss [during the pleading stage] we ‘presum[e] that general allegations

embrace those specific facts that are necessary to support the claim.’” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife Fed., 497 U.S. 871,

889 (1990)).

Defendants seek dismissal of the union members’ claims under 12(b)(1) because

they are preempted by the LMRA. Section 301, as discussed above, preempts the union

members’ claims. Accordingly, Defendants’ 12(b)(1) Motion to Dismiss the union

members’ claims is granted.

II. Defendants’ Motion to Dismiss for Failure to State a Claim

The purpose of a Rule 12(b)(6) motion is to decide the adequacy of the complaint,

not to determine the merits of the case or decide whether a plaintiff will ultimately

prevail. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule

12(b)(6) motion to dismiss, a plaintiff only needs to allege enough facts to state a claim

for relief that is plausible on its face. Twombly, 550 U.S. at 570. A plaintiff need not plead

detailed factual allegations, but must provide “more than labels and conclusions, and a

formulaic recitation of the elements.” Id. For purposes of a motion to dismiss under Rule

12(b)(6), the Court must accept all well-pleaded facts as true and draw all possible

inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873,

879 (7th Cir. 2012).

A. BIPA Consent Forms

Defendants argue that Plaintiffs Tonika Smith, Daphne Williams, Olabisi

Bodunde, Victoria Brewer, and Alyssa Bendersky (“Consenting Plaintiffs”) have no claim

because each of these Plaintiffs signed a BIPA Consent Form. This Court disagrees.

A district court may consider documents attached to the pleadings without

converting a motion to dismiss into a motion for summary judgment, as long as the

documents are referred to in the complaint and central to the plaintiff’s claims. Adams v.

City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014); see Fredrick v. Simmons Airlines, Inc.,

144 F.3d 500, 504 (7th Cir. 1998) (noting that “[defendant’s] [a]ffidavits are not properly

considered in deciding upon a motion under Rule 12(b)(6) unless the district court

converts the motion into one for summary judgment under Rule 56”). The BIPA Consent

Forms provided by Defendants are not attached to the Complaint. Defendants argue,

however, that these BIPA Consent Forms are central to Plaintiffs’ claims because the First

Amended Complaint squarely references Defendants’ time-keeping policy, “[b]ut yet the

Amended Complaint fails to attach the time-keeping policy that the Consenting Plaintiffs

acknowledged receiving, even though it is central to their claims” (Doc. 19, p. 19). See

Geinosky v. City of Chicago, 675 F.3d 743, 745 (7th Cir. 2012) (noting that “[a] motion under

Rule 12(b)(6) can be based only on the complaint itself, documents attached to the

complaint, documents that are critical to the complaint and referred to in it, and

information that is subject to proper judicial notice”).

Besides the First Amended Complaint referencing Defendants’ time-keeping

policy, the Complaint alleges the following:

At no time during [their] employment [were] [Plaintiffs] informed in

writing that [their] biometric information was being collected or stored or

of the specific purpose and length of term for which [their] biometric

information was being collected, stored, and used. At no time did

[Plaintiffs] execute a writing releasing or permitting Maestro or the other

Defendants to utilize [their] biometric information. [Plaintiffs] [were] never

provided with a publicly available written policy regarding a schedule or

guideline for the retention and permanent destruction of [their] biometric

information.

(Doc. 10-2). Plaintiffs further allege that Defendants’ “collection and storage of the

plaintiffs’ and class member’s biometric data was done without properly informing the

plaintiffs and class members in writing that a biometric identifier or biometric

information was being collected or stored” (Doc. 10-2) (emphasis added). Plaintiffs are

also alleging that Defendants “collection and storage of the Plaintiffs’ and class members’

biometric data was systematic and done without first obtaining the written release

required by 740 ILCS 14/15(b)(3)” (Doc. 10-2).

To properly inform, before collecting, capturing, purchasing, receiving through

trade, or otherwise obtaining the subject’s biometric information, Defendants must first

inform the subject or the subject’s legally authorized representative in writing that

biometric information is being collected or stored, the specific purpose, and the length in

which the biometric information is being collected, stored, and used. 740 ILCS 14/15

(b)(1)-(2). Additionally, before collecting, capturing, purchasing, receiving through trade,

or otherwise obtaining the subject’s biometric information, Defendants must first obtain

a written release. 740 ILCS 14/15 (b)(3).

The Consenting Plaintiffs’ section 15(b) claims are not rendered false by the signed

BIPA Consent Forms. While the BIPA Consent Forms are dated, Defendants have not

shown that Plaintiffs were informed and consented before their biometric information

was collected (Doc. 19-1, pp. 179, 181, 260, 299, 330). Even if Defendants provided

appropriate documents showing that Plaintiffs were informed and consented before their

biometric information was collected, this would potentially only impact the Consenting

Plaintiffs’ claims regarding their sections 15(b) and 15(d) claims. Defendants fail to show

how the Consenting Plaintiffs’ remaining BIPA claims would be impacted.

Accordingly, Defendants’ Motion to Dismiss the Consenting Plaintiffs’ claims is

denied.

B. Plaintiffs’ Pleadings

Defendants assert that all of Plaintiffs’ claims must be dismissed because the

“substantive allegations are directed against all ‘Defendants’ en masse . . . and, in any

event, none of the substantive allegations identifies what each particular Defendant did

to plausibly warrant liability as to each particular Plaintiff” (Doc. 19).

Under BIPA, however, “[a]ny person aggrieved by a violation” has a private right

of action. 740 ILCS § 14/20. In Rosenbach v. Six Flags Entm’t Corp., 129 N.E.3d 1197, 1206

(Ill. 2019), the Illinois Supreme Court explained “when a private entity fails to comply

with one of [s]ection 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.” Id.

Illinois Supreme Court precedent binds this Court. See Allstate Ins. Co. v. Menards,

Inc., 285 F.3d 630, 637 (7th Cir. 2002) (“the task of the federal court sitting in diversity is

to ascertain the substantive content of state law as it [] has been determined by the highest

court of the state”). Plaintiffs need not allege anything “beyond violation of his or her

rights under the Act, in order to qualify as an ‘aggrieved’ person and be entitled to seek

liquidated damages and injunctive relief[.]” Rosenbach, 129 N.E.3d at 1207. Indeed, all

Plaintiffs must do is allege that Defendants collected, captured, purchased, received or

obtained their fingerprints without complying with BIPA’s requirements. Accordingly,

for purposes of a 12(b)(6) motion, Plaintiffs pled sufficient facts to state a cause of action

against Defendants.

C. Plaintiffs’ Claims for Statutory Damages

Defendants also argue that the Illinois Workers’ Compensation Act (“IWCA”) bars

employees from recovering statutory damages against their employers under BIPA for

their workplace injuries. Defendants rely on a 62-year-old Illinois Supreme Court case,

Gannon v. Chicago, M., St. P. & P. Ry. Co., 150 N.E.2d 141 (Ill. 1958), for this point. The

Court in Gannon held “Section 5(a) bars a common-law action by an employee against his

employer for injuries received in the cause of his employment, and it also bars a statutory

action against his employer . . . .” Id. at 143.

Significantly, Gannon does not touch on the four exceptions to the IWCA’s

exclusivity bar. IWCA is not the exclusive remedy when the employee establishes that

the injury “(1) was not accidental, (2) did not arise from his or her employment, (3) was

not received during the course of employment or (4) was noncompensable under the

Act.” Collier v. Wagner Castings Co., 408 N.E.2d 198, 202 (Ill. 1980). Defendants argue that

Plaintiffs’ alleged injuries are “accidental” for purposes of determining whether the

IWCA bars Plaintiffs’ BIPA claims (Doc. 19, p. 23). Defendants explain that courts

construe the term “accidental” broadly (Id.). Defendants also argue that Plaintiffs’ BIPA

injuries are compensable under the IWCA (Id.). As a result, Defendants assert that the

IWCA bars Plaintiffs’ statutory damages simply because Plaintiffs’ alleged injuries arose

out of their employment. To support this argument, Defendants point out that the Illinois

Supreme Court did not limit or narrow IWCA’s exclusivity bar in Pathfinder Co. v. Indus.

Comm’n, 343 N.E.2d 913 (Ill. 1976), Collier, 408 N.E.2d 198, Meerbrey v. Marshall Field & Co.,

564 N.E.2d 1222 (Ill. 1990), and Folta v. Ferro Eng’g, 43 N.E.3d 108 (Ill. 2015).

Defendants fail to point out that more than 50 years after Gannon, in Folta, the

Illinois Supreme Court explained that the inquiry of whether an injury is exclusively

compensable under the IWCA is not simply whether “[a] plaintiff’s injuries arose out of

or in the course of his [or] [her] employment.” Folta, 43 N.E.3d at 114. Rather, the Court

“refined [its] inquiry as to what is meant by compensable by considering whether an

employee was covered under the Act where the essence of the harm was a psychological

disability, and not a traditional physical injury.” Id. In other words, Illinois courts

consider the character of the injury when determining whether the compensability

exception applies.

Contrary to Defendants’ assertions, recent state court rulings are not attempting

to create a new exception from the IWCA. Rather, the Illinois Supreme Court in Folta

summarized the development of the compensability exception and explained that

“Pathfinder, Collier and Meerbrey stand for the proposition that whether an injury is

compensable is related to whether the type of injury categorically fits within the purview

of the [IWCA].” Id. at 114.

Blindly applying Gannon and relying on the rulings in Pathfinder, Collier and

Meerbrey—which held psychological injuries were exclusively compensable under the

IWCA—would be imprecise. Psychological injuries can be exclusively compensable

under the IWCA, but “courts have generally required that the psychological injury stem

from ‘a sudden, severe emotional shock traceable to a definite time, place and cause.’”

Cothron, 467 F. Supp. 3d at 616 (quoting Pathfinder Co., 343 N.E.2d at 917).7

The Supreme Court of Illinois proposed a more general “test for whether an

employee suffered a compensable injury”—”‘whether there was a harmful change in the

human organism—not just its bones and muscles, but its brain and nerves as well.’”

7 Gannon and the other cases cited by Defendants all involved physical injuries to a plaintiff’s body. See

Vacos v. La Salle Madison Hotel Co., 159 N.E.2d 24 (Ill. App. Ct. 1959) (declining to allow a claim under the

Dram Shop Act when two patrons became “so intoxicated, engaged in a scuffle, fight or brawl and fell

against [plaintiff], causing severe injuries); Copass v. Illinois Power Co., 569 N.E.2d 1211 (Ill. App. Ct. 1991)

(injury was a result of the explosion); Carey v. Coca-Cola Bottling Co. of Chicago, 363 N.E.2d 400, 402 (Ill. App.

Ct. 1977) (holding that the employee, who fell when a ladder slid out from under him, may not recover

under the Structural Work Act because the “employee is covered by the Workmen’s Compensation Act

and recovery is had thereunder”).

Treadwell v. Power Sols. Int’l, Inc., 427 F.Supp.3d 984 (N.D. Ill. 2019) (emphasis in original)

(quoting Pathfinder, 343 N.E.2d at 918). Multiple district courts in this circuit have used

the test in Pathfinder to find that BIPA injuries are not compensable under the IWCA—

even when employees’ alleged injuries originate from their employment. See Peatry, 2020

WL 919202 at *6 (“adopt[ing] the reasoning from Treadwell and agree[ing] that, under the

current case law, the IWCA does not cover the injury [a] [former] [employee] alleges—

the invasion of her privacy rights”); Cothron, 467 F. Supp. 3d at 616 (concluding that

“[employee’s] injuries stemming from alleged BIPA violations are not preempted by the

IWCA”); Lenoir v. Little Caesar Enterprises, Inc., 2020 WL 4569695, at *4 (N.D. Ill. Aug. 7,

2020) (denying argument that former employees where “‘necessarily claiming a

workplace injury’ by alleging that they experienced emotional distress as a result of

Defendant’s BIPA violations, and therefore their ‘exclusive remedy’ is through the

IWCA”); Sherman v. Brandt Indus. USA Ltd., 2020 WL 6685701, at *7 (C.D. Ill. Nov. 12,

2020) (rejecting defendant’s argument that the IWCA might preempt former employee’s

BIPA claims and acknowledging “the unanimous rejection of arguments that [the]

[IWCA] might otherwise preempt privacy claims . . . .”). “Similarly, numerous trial courts

in Illinois have found that privacy injuries are distinct from those preempted by the

IWCA.” Cothron, 467 F. Supp. 3d at 616.

The Seventh Circuit has repeatedly reminded courts and counsel that district court

opinions have no precedential value. See, e.g., Midlock v. Apple Vacations West, Inc., 406

F.3d 453, 457–58 (7th Cir. 2005). Rather than relying on district court cases for their

precedential value, the Court acknowledges these cases because they recognize the

development of the Illinois Supreme Court’s compensability exception and the test in

Pathfinder.

Here, Plaintiffs’ alleged BIPA injuries are non-physical and non-psychological.

Applying the Pathfinder test, Plaintiffs’ alleged injuries are not compensable under the

IWCA. Accordingly, the compensability exception applies, and Defendants’ Motion to

Dismiss is denied.

CONCLUSION

For these reasons, the Motion to Remand (Doc. 23) filed by Plaintiffs Saroya

Roberson, Christa Hammond, Tonika Smith, Daphne Williams, Idella Hill, Olabisi

Bodunde, Victoria Brewer, Alyssa Bendersky, Felecia, Williams, Attla Dupree, and

Jameea Boykin (“Plaintiffs”), individually, and on behalf of all others similarly situated

is DENIED.8 The Motion to Dismiss filed by Defendants (Doc. 18) is GRANTED in part

and DENIED in part.

8 In Hart, 457 F.3d at 682, the Seventh Circuit explained that in a CAFA case, defendants and plaintiffs both

“have the right, through appropriate discovery, to explore the facts relevant to the court’s jurisdiction as

the case progresses.” Denying Plaintiffs’ Motion to Remand without prejudice and directing Plaintiffs to

conduct discovery to explore the question of whether a CAFA exception exists is unnecessary given this

Court’s conclusion that federal-question jurisdiction supports removal. See Miller, 926 F.3d at 905 (“[g]iven

our conclusion that the federal-question jurisdiction supports removal, we need not remand for the district

court to explore the question whether, on the date the case was removed, one class member was a citizen

of Wisconsin or Indiana, or conceivably some third state other than Illinois or Delaware—say, a citizen of

California temporarily detailed to work at O’Hare”).

The Court dismisses Plaintiffs’ union members claims without prejudice.’

Plaintiffs have until January 4, 2021, to file aSecond Amended Complaint consistent with

Rule 11.

IT IS SO ORDERED.

DATED: December 14, 2020 Tl ( }

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

A preempted state law claim “must either be treated as a § 301 claim, or dismissed as preempted by federal

labor-contract law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). Unless certain exceptions apply,

employees must exhaust administrative remedies before bringing suit in federal court. See McLeod v. Arrow

Marine Transp., Inc., 258 F.3d 608, 616 (7th Cir. 2001). The First Amended Complaint does not contain

allegations that allow the Court to treat Plaintiffs’ claims as § 301 claims, nor does it allege that Plaintiffs

properly exhausted their administrative remedies. Based on the information currently before it, the Court

cannot conclude that there are no other facts Plaintiffs can plead that establish a non-preempted claim. See

Gray, 2020 WL 1445608 at *5 (dismissing complaint without prejudice); Peatry, 2020 WL 919202 at *7

(dismissing certain claims without prejudice); Fernandez, 2020 WL 7027587 at *8 (dismissing complaint

without prejudice and allowing plaintiff to amend complaint).

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