Thakkar v. ProctorU Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RUTVIK THAKKAR, et al., )

)

Plaintiffs, )

)

v. ) Case No. 2:21-cv-01565-NAD

)

PROCTORU, INC., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT’S MOTION TO DISMISS BASED ON CHOICE OF LAW

For the reasons stated below and on the record in the May 24, 2022 motion

hearing, Defendant ProctorU, Inc.’s motion to dismiss (Doc. 21), as supplemented

on choice-of-law grounds, is GRANTED.

INTRODUCTION

Plaintiffs Rutvik Thakkar, William Gonigam, and Andrea Kohlenberg

initiated this action against Defendant ProctorU in the United States District Court

for the Central District of Illinois, alleging two claims for relief under the Illinois

Biometric Information Privacy Act (BIPA). See Doc. 18 (amended complaint).

After the Central District of Illinois transferred the case to this district (based on a

contractual forum-selection clause), ProctorU argued that a contractual choice-of-

law provision bars Plaintiffs’ BIPA claims.

Because Plaintiffs’ BIPA claims fall within the scope of that choice-of-law

provision, and because that choice-of-law provision is enforceable according to

Alabama choice-of-law rules (which do not apply a Restatement §§ 187–188

balancing analysis to a provision such as this), Alabama substantive law applies, and

Plaintiffs cannot state an Illinois state-law BIPA claim upon which relief can be

granted.

BACKGROUND

A. Procedural background

1. Plaintiffs’ BIPA claims

On March 12, 2021, Plaintiffs filed this action in the Central District of

Illinois, alleging two BIPA claims against ProctorU. Doc. 1. On May 20, 2021,

Plaintiffs filed an amended complaint that also alleges two BIPA claims against

ProctorU. Doc. 18.

BIPA is an Illinois state statute that requires a private entity that possesses an

individual’s biometric information to establish “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 has been

satisfied or within 3 years of the individual’s last interaction with the private entity,

whichever occurs first.” 740 Ill. Comp. Stat. 14/15(a). BIPA also prohibits a

private entity from “collect[ing], captur[ing], purchas[ing], receiv[ing] through

trade, or otherwise obtain[ing] a person’s or a customer’s biometric identifier or

biometric information,” unless the entity first informs the person “in writing of the

specific purpose and length of term for which a biometric identifier or biometric

information is being collected, stored, and used.” 740 Ill. Comp. Stat. 14/15(b)(2).

Plaintiffs allege that ProctorU violated both “§§ 15(a) and 15(b) of BIPA,”

when it “collected, stored and used—without first publishing sufficiently specific

data retention and deletion policies—the biometrics of hundreds or thousands of

students who used [ProctorU’s] software to take online exams.” Doc. 18 at 2–3.

As noted above, Plaintiffs’ amended complaint includes two claims for relief under

BIPA. First, Plaintiffs allege that ProctorU violated § 15(a) of BIPA when it failed

to create, publish, and adhere to a retention schedule providing for permanent

deletion of biometric information. Doc. 18 at 17–18. In particular, Plaintiffs

allege that, “[i]n direct violation of § 15(a) of BIPA, from at least approximately

March 2020 through present, [ProctorU] did not have written, publicly available

policies identifying its retention schedules or guidelines, and has continued to retain

the biometrics beyond the intended purpose for collection.” Doc. 18 at 10.

Second, Plaintiffs allege that ProctorU violated § 15(b)(2) of BIPA when it failed to

obtain proper consent from Plaintiffs before capturing, storing, and/or using

Plaintiffs’ biometric identifiers and biometric information. Doc. 18 at 18–21. In

this regard, Plaintiffs allege that, “[i]n direct violation of BIPA § 15(b)(2), from at

least approximately March 2020 through present, [ProctorU] never informed Illinois

students who had their facial geometry collected of the length of time for which their

biometric identifiers or information would be collected, stored and used.” Doc. 18

at 10.

2. ProctorU’s motion to dismiss and motion to transfer venue

(Central District of Illinois)

On June 3, 2021, ProctorU filed the pending motion to dismiss in the Central

District of Illinois. Doc. 21. As filed, ProctorU’s motion argued for dismissal

pursuant to Federal Rule of Civil Procedure 12(b)(2) because ProctorU is not subject

to personal jurisdiction in Illinois, and for dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(6) because Plaintiffs’ amended complaint failed to state a claim

upon which relief can be granted. Doc. 21 at 1.

On June 7, 2021, ProctorU also filed a motion to transfer venue. Doc. 23.

Both of those motions were fully briefed in the Central District of Illinois. See Doc.

22; Doc. 24; Doc. 29; Doc. 30; Doc. 37; Doc. 38.1 Plaintiffs also filed two notices

of supplemental authority in opposition to ProctorU’s motion to dismiss. See Doc.

34; Doc. 35.

On November 23, 2021, the Central District of Illinois granted ProctorU’s

1 Plaintiffs filed a brief in opposition to ProctorU’s motion to dismiss (Doc. 29), and

a brief in opposition to ProctorU’s motion to transfer venue (Doc. 30). On July 28,

2021, ProctorU filed unopposed motions for leave to file reply briefs (Doc. 31; Doc.

31-1; Doc. 32; Doc. 32-1). The Central District of Illinois granted ProctorU’s

motions for leave, and directed the clerk to docket the reply briefs. Doc. 36 at 23;

Doc. 31-1; Doc. 32-1; Doc. 37; Doc. 38.

motion to transfer venue, transferred the case to this district, and reserved ruling on

the motion to dismiss for this district. Doc. 36 at 1.

In granting ProctorU’s motion to transfer venue, the Central District of Illinois

ruled that ProctorU’s “Terms of Service” contained a valid and enforceable forum-

selection clause to which Plaintiffs had agreed. Doc. 36 at 23. Consequently, the

Central District of Illinois directed the clerk to “transfer this case to the U.S. District

Court for the Northern District of Alabama,” and ordered that a ruling on ProctorU’s

motion to dismiss (Doc. 21) was “reserved pending transfer to the Northern District

of Alabama.” Doc. 36 at 23–24.

3. The choice-of-law issues (this court)

After the case was transferred to this district, the case was assigned to the

undersigned. Doc. 40. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73, the parties consented to magistrate judge jurisdiction. Doc. 48.

On January 19, 2022, the court held a telephone status conference, during

which counsel for ProctorU raised choice-of-law grounds as additional support for

the pending motion to dismiss. See Doc. 51; Minute Entry (Entered: 01/19/2022).

Consequently, the court ordered supplemental briefing on the choice-of-law

issues discussed during that conference. Doc. 52. The choice-of-law issues were

fully briefed in this court, including a second round of (optional) supplemental

briefing on certain Alabama Supreme Court decisions. Doc. 55; Doc. 58; Doc. 61;

Doc. 64; Doc. 65. Plaintiffs also filed two notices of supplemental authority on the

choice-of-law issues. Doc. 59; Doc. 60.

On May 24, 2022, the court held a motion hearing on the choice-of-law issues.

See Doc. 62; Minute Entry (Entered: 05/24/2022).

This court has subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1332(d) because Plaintiffs have alleged that “there are more than 100 class

members and the aggregate amount in controversy exceeds $5,000,000, exclusive of

interest, fees, and costs, and at least one Class member is a citizen of a state different

from Defendant.” Doc. 18 at 3.

B. Factual background

1. Plaintiffs and ProctorU

Plaintiffs are students, domiciled in Illinois, who used ProctorU while taking

online examinations. Doc. 18 at 3, 10–14.

ProctorU is a Delaware corporation with its principal place of business in

Birmingham, Alabama. Doc. 1 at 5.

ProctorU develops, owns, and operates an online proctoring software that

provides remote proctoring services. Doc. 18 at 1; Doc. 22 at 3–4. ProctorU

monitors exams over the internet, and can be accessed and used throughout the

United States and internationally. Doc. 22 at 2–3. “One of the ways in which

ProctorU monitors students is by collecting and monitoring their facial geometry.”

Doc. 18 at 6. ProctorU uses the collected biometric information “to create an

identity profile for students and to confirm students’ identities during testing so as

to prevent cheating.” Doc. 18 at 8.

2. ProctorU’s Privacy Policy and Terms of Service, including

the forum-selection clause and the choice-of-law provision

Privacy Policy. Plaintiffs allege that ProctorU’s Privacy Policy describes its

“‘policies and procedures for the collection, receipt, use, storage, sharing, transfer,

disclosure, and other processing of personal information through [ProctorU’s]

websites, browser extensions, platforms, and applications.’” Doc. 18 at 10 (quoting

Privacy Policy); see Doc. 21-1 at 15. Plaintiffs allege that, according to ProctorU’s

“Privacy Policy, ‘[d]uring testing . . . [ProctorU] [would] obtain IP address

information to help troubleshoot issues and verify [users’] testing location.’” Doc.

18 at 4 (quoting Privacy Policy) (emphasis omitted); see Doc. 21-1 at 16. Plaintiffs

also allege that ProctorU’s Privacy Policy states as follows: “‘We require you to

share your photo ID on camera and we use that ID in conjunction with biometric

facial recognition software to authenticate your identity. We also require you to

perform a biometric keystroke measurement for some exams.’” Doc. 18 at 6

(quoting Privacy Policy); see Doc. 21-1 at 15. Plaintiffs allege further that

ProctorU’s Privacy Policy states that, “‘[d]uring testing, we automatically track your

keystroke pattern to ensure it matches the biometric profile created before the start

of your exam.’” Doc. 18 at 6 (quoting Privacy Policy); see Doc. 21-1 at 16.

Plaintiffs allege that “ProctorU’s Privacy Policy simply states that ‘We retain

information for as long as necessary to perform the Services described in this Policy,

as long as necessary for us to perform any contract with you or your institution, or

as long as needed to comply with our legal obligations,’” and that ProctorU’s

“Privacy Policy does not have a section on the deletion of biometric information.”

Doc. 18 at 10 (quoting Privacy Policy); see Doc. 21-1 at 17.

Terms of Service (including “Terms,” “Services,” and “Content”).

ProctorU’s Terms of Service—also defined as the “‘Terms’”—“govern [users’]

access to and use of [ProctorU’s] website(s), browser extensions, platforms,

applications, and other services (collectively, [ProctorU’s] ‘Services’).” Doc. 21-1

at 9 (emphasis added).2 ProctorU’s Terms of Service (or Terms) “also apply to any

information, text, audio, video, images, graphics, code, extensions, or other materials

created, uploaded, downloaded, transferred or otherwise appearing on or connected

with the Services when [users] interact with ProctorU, including recordings of any

test sessions (collectively referred to as ‘Content’).” Doc. 21-1 at 9 (emphasis

added).

Importantly, ProctorU’s Privacy Policy “is expressly incorporated into”

ProctorU’s Terms of Service (or Terms). Doc. 21-1 at 9. In addition, ProctorU’s

2 Likewise, ProctorU’s Privacy Policy defines “Services” as ProctorU’s “websites,

browser extensions, platforms, and applications, including, but not limited to,

ProctorU Go and ProctorU.” Doc. 21-1 at 15.

Terms of Service state as follows: “Your use of the Services and any Content that

you provide during your interaction with ProctorU is subject to our Privacy Policy,

which governs how your information and any Content you provide is collected and

forwarded to your Testing Institution.” Doc. 21-1 at 9 (emphasis added).

Forum-selection clause. ProctorU’s Terms of Service include a section

labeled, “15. Controlling Law and Jurisdiction.” Doc. 21-1 at 12. That one-

paragraph section states that “[a]ll claims, legal proceedings, or litigation arising out

of or in connection with or related to the Services will be brought solely in a court

of competent jurisdiction in the State of Alabama, County of Jefferson.” Doc. 21-

1 at 12. As noted above, that forum-selection clause was the basis for the Central

District of Illinois’ order transferring venue to this district. Doc. 36 at 13.

Choice-of-law provision. That same one-paragraph section in ProctorU’s

Terms of Service also includes the choice-of-law provision now at issue. That

choice-of-law provision states as follows: “All Terms [i.e., Terms of Service] and

any claim or action arising out of or in any way related thereto will be governed by

the laws of the State of Alabama without regard to or application of its conflict of

law provisions.” Doc. 21-1 at 12.

LEGAL STANDARD

Federal Rule of Civil Procedure 8 requires that a complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), the court

can dismiss a complaint for “failure to state a claim upon which relief can be

granted.” Id.

A defendant’s Rule 12(b)(6) motion to dismiss can challenge the legal

sufficiency of a plaintiff’s complaint. See, e.g., United States v. Gaubert, 499 U.S.

315, 327 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990);

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (“Such a

dispute always presents a purely legal question; there are no issues of fact because

the allegations contained in the pleading are presumed to be true.”); Executive 100

v. Martin Cty., 922 F.2d 1536, 1539 (11th Cir. 1991) (“Federal Rule of Civil

Procedure 12(b)(6) authorizes a court to dismiss a complaint on the basis of a

dispositive issue of law.” (citation omitted)); see also Bell Atl. Corp. v. Twombly,

550 U.S. 544, 548 (2007) (complaint must contain “enough facts to state a claim to

relief that is plausible on its face”); accord, e.g., Watts v. Farmers Ins. Exch., 2018

U.S. Dist. LEXIS 71030, at *8 (N.D. Ala. April 27, 2018) (“A Rule 12(b)(6) motion

attacks the legal sufficiency of the complaint.”).

Generally speaking, “analysis of a 12(b)(6) motion is limited primarily to the

face of the complaint and attachments thereto.” Brooks v. Blue Cross & Blue Shield

of Fla., 116 F.3d 1364, 1369 (11th Cir. 1997). But, “where the plaintiff refers to

certain documents in the complaint and those documents are central to the plaintiff’s

claim, then the Court may consider the documents part of the pleadings for purposes

of Rule 12(b)(6) dismissal.” Id.

DISCUSSION

A couple threshold matters: First, everyone agrees that Alabama choice-of-

law rules control the court’s analysis here. See, e.g., Doc. 58 at 13 n.3 (“Plaintiffs

agree that this Court should apply Alabama choice of law rules to determine the

substantive law applicable to this case because the case was transferred here pursuant

to a choice of forum clause.”).3

Second, Plaintiffs have not raised any contract defense with respect to the

validity or enforceability of ProctorU’s Terms of Service or the relevant choice-of-

law provision. Illustratively, in their opposition to ProctorU’s motion to transfer

venue in the Central District of Illinois, “Plaintiffs argue[d] that the Terms of Service

in general are procedurally unconscionable, and that the forum-selection clause

specifically is invalid because it is the result of [ProctorU’s] overweening bargaining

power, the selected forum would be inconvenient for Plaintiffs, and enforcement of

the clause would contravene the strong public policy of Illinois.” Doc. 36 at 9.

And the Central District of Illinois already has ruled that “neither the Terms of

3 Accord Atlantic Marine Constr. Co. v. U.S.D.C. for W.D. Tex., 571 U.S. 49, 64

(2013) (“[W]hen a party bound by a forum-selection clause flouts its contractual

obligation and files suit in a different forum, a § 1404(a) transfer of venue will not

carry with it the original venue’s choice-of-law rules.”).

Service nor the forum-selection clause are procedurally unconscionable nor invalid

under Illinois or federal law.” Doc. 36 at 16.

Consequently (big-picture), there are two choice-of-law issues for the court to

resolve: (1) whether Plaintiffs’ BIPA claims are governed by the choice-of-law

provision in ProctorU’s Terms of Service; and (2) whether the choice-of-law

provision is enforceable according to Alabama choice-of-law rules—that is, whether

Alabama choice-of-law rules require the court to apply the plain language of the

choice-of-law provision in ProctorU’s Terms of Service (which would apply

Alabama substantive law and bar Plaintiffs’ Illinois state-law BIPA claims), or

whether Alabama choice-of-law rules require the court to apply §§ 187–188 of the

Restatement (Second) of Conflicts of Laws (pursuant to which Illinois substantive

law, including BIPA, might apply).

Based on the plain language of ProctorU’s Terms of Service, Plaintiffs’ BIPA

claims fall within the scope of the choice-of-law provision. And, under Alabama

choice-of-law rules (which do not apply a Restatement §§ 187–188 balancing

analysis to a provision such as this), the choice-of-law provision is enforceable. As

a result, Alabama substantive law applies, and Plaintiffs cannot proceed on their

Illinois state-law BIPA claims.

I. Plaintiffs’ BIPA claims are governed by the choice-of-law provision in

ProctorU’s Terms of Service.

Plaintiffs’ BIPA claims fall within the scope of the choice-of-law provision in

ProctorU’s Terms of Service. This is a question of contract interpretation, which

requires the court to look to the contract’s plain language in order to determine the

parties’ intent. Title Max of Birmingham, Inc. v. Edwards, 973 So. 2d 1050, 1054

n.1 (Ala. 2007) (“[W]e do not look beyond the plain language of the contract to

second-guess the intentions of the parties.”). In interpreting a contract, the “court

should give the terms of the agreement their clear and plain meaning and should

presume that the parties intended what the terms of the agreement clearly state.” Ex

parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 36 (Ala. 1998) (citing Pacific

Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So. 2d 409 (Ala. 1993)).

As explained above, ProctorU’s Terms of Service include a choice-of-law

provision that states as follows: “All Terms [of Service] and any claim or action

arising out of or in any way related thereto will be governed by the laws of the State

of Alabama without regard to or application of its conflict of law provisions.”4 Doc.

21-1 at 10. So (stated simply), the question is whether Plaintiffs’ two BIPA claims

“aris[e] out of or in any way relate[] []to” ProctorU’s Terms of Service. See id.

And the answer is, yes.5

4 The court need not address ProctorU’s argument—based on the “without regard

to” clause of the choice-of-law provision, Doc. 21-1 at 10—that Alabama

substantive law applies regardless of Alabama choice-of-law rules. See Doc. 55 at

20–21.

5 Generally speaking, with respect to a choice-of-law provision, “the term ‘arising

out of or relating to’ has a broad application.” Ex parte Killian Constr. Co., 276

So. 3d 201, 209 (Ala. 2018) (quoting Unum Life Ins. Co. of Am. v. Wright, 897 So.

At a minimum, Plaintiffs’ BIPA claims arise out of and/or relate to ProctorU’s

Terms of Service because those claims arise out of and/or relate to ProctorU’s

Privacy Policy. As explained above, Plaintiffs’ complaint includes several

allegations that various aspects of ProctorU’s Privacy Policy violate BIPA’s

retention and consent protections. Among other things, Plaintiffs allege that the

Privacy Policy addresses ProctorU’s “‘policies and procedures for the collection,

receipt, use, storage, sharing, transfer, disclosure, and other processing of personal

information through [ProctorU’s] websites, browser extensions, platforms, and

applications.’” Doc. 18 at 10 (quoting Privacy Policy); see Doc. 21-1 at 15.

Plaintiffs also allege that “ProctorU’s Privacy Policy simply states that ‘We retain

information for as long as necessary to perform the Services described in this Policy,

as long as necessary for us to perform any contract with you or your institution, or

as long as needed to comply with our legal obligations.’” Doc. 18 at 10 (quoting

Privacy Policy); see Doc. 21-1 at 17. Plaintiffs allege further that ProctorU’s

“Privacy Policy does not have a section on the deletion of biometric information.”

Doc. 18 at 10; see Doc. 21-1 at 17.6

2d 1059, 1086 (Ala. 2004)).

6 Furthermore, Plaintiffs’ opposition to the motion to dismiss in the Central District

of Illinois also shows that their claims arise out of and/or relate to ProctorU’s Privacy

Policy. See Doc. 29. For example, Plaintiffs argued that ProctorU’s “‘Privacy

Policy simply states that “We retain information for as long as necessary to perform

the Services described in this Policy, as long as necessary for us to perform any

contract with you or your institution, or as long as needed to comply with our legal

As also explained above, ProctorU’s Privacy Policy “is expressly

incorporated into” ProctorU’s Terms of Service. Doc. 21-1 at 9. Because

Plaintiffs’ claims relate to ProctorU’s Privacy Policy, and because that Privacy

Policy “is expressly incorporated into” ProctorU’s Terms of Service (id.), Plaintiffs’

claims necessarily relate to ProctorU’s Terms of Service. And, on the plain

language of the contract, claims that relate to (and/or arise out of) the Terms of

Service are governed by the choice-of-law provision.

In addition, Plaintiffs’ BIPA claims arise out of and/or relate to ProctorU’s

Terms of Service because those claims arise out of and/or relate to ProctorU’s

obligations.” The Privacy Policy does not have a section on the deletion of

biometric information.’ These general statements do not outline the ‘specific

purpose and length of term for which a biometric identifier or biometric information

is being collected,’ nor do they establish ‘a retention schedule and guidelines for

permanently destroying biometric identifiers and biometric information.’

Accordingly, Plaintiffs allege ProctorU violated BIPA §§ 15(a) and 15(b) when it

collected the biometrics of Plaintiffs and other Illinois residents.” Doc. 29 at 7

(citations omitted). Plaintiffs argued further that “Plaintiffs have alleged—and

ProctorU does not dispute—that when proctoring online exams, ProctorU collects

students’ biometrics, including their facial geometry, eye movement, and keystroke

pattern. However, ProctorU’s Privacy Policy does [not] disclose how long

ProctorU will retain th[ese] biometrics. ‘Rather, ProctorU’s Privacy Policy simply

states that “We retain information for as long as necessary to perform the Services

described in this Policy, as long as necessary for us to perform any contract with you

or your institution, or as long as needed to comply with our legal obligations.”’ This

vague and unspecific policy is insufficient to comply with the requirements of BIPA

§§ 15(a) and 15(b)(2) because it does not establish a ‘retention schedule and

guidelines for permanently destroying biometric identifies,’ and it does not inform

Plaintiffs of the ‘specific purpose or length of term’ for which their biometrics will

be retained.” Doc. 29 at 19 (citations omitted).

Services and users’ Content. As explained above, the Terms of Service “govern

[users’] access to and use of [ProctorU’s] website(s), browser extensions, platforms,

applications, and other services,” which are defined as ProctorU’s “‘Services.’”

Doc. 21-1 at 9. The Terms “also apply to any information, text, audio, video,

images, graphics, code, extensions, or other materials created, uploaded,

downloaded, transferred or otherwise appearing on or connected with the Services

when [users] interact with ProctorU, including recordings of any test sessions,”

which are defined as “‘Content.’” Doc. 21-1 at 9.

In this regard, Plaintiffs premise their BIPA claims on allegations that

ProctorU collected users’ biometric Content while providing its Services. Plaintiffs

allege that “‘[d]uring testing . . . [ProctorU] [would] obtain IP address information

to help troubleshoot issues and verify [users’] testing location.’” Doc. 18 at 4

(quoting Privacy Policy) (emphasis omitted); see Doc. 21-1 at 16. Plaintiffs also

allege that ProctorU’s Privacy Policy includes the following: “‘We require you to

share your photo ID on camera and we use that ID in conjunction with biometric

facial recognition software to authenticate your identity. We also require you to

perform a biometric keystroke measurement for some exams. . . . During testing, we

automatically track your keystroke pattern to ensure it matches the biometric profile

created before the start of your exam.’” Doc. 18 at 6 (quoting Privacy Policy); see

Doc. 21-1 at 15–16.

Again (as explained above), ProctorU’s Terms state that “use of the Services

and any Content that [users like Plaintiffs] provide during [their] interaction with

ProctorU is subject to our Privacy Policy, which governs how [their] information

and any Content [they] provide is collected.” Doc. 21-1 at 9. Thus, Plaintiffs’

claims relate to ProctorU’s Services and users’ Content, which are “subject to”

ProctorU’s Privacy Policy; and that Privacy Policy “is expressly incorporated into”

ProctorU’s Terms of Service (id.; see supra). Consequently, Plaintiffs’ claims

relate to (and/or arise out of) ProctorU’s Terms of Service and are governed by the

choice-of-law provision.

Notwithstanding the plain language of the contract, Plaintiffs argue that “the

choice of law clause restricts itself to only those claims arising out of or relating to

the Terms of Service,” and that “Plaintiffs’ claims do not arise out of or relate to the

Terms of Service.” Doc. 58 at 9. Plaintiffs argue instead that their “claims solely

arise out of the provision of services by [ProctorU].” Doc. 58 at 9 (emphasis in

original).

Preliminarily, the plain language of the contract does not permit for the line-

drawing distinction that Plaintiffs attempt to make between claims arising out of

ProctorU’s Terms of Service and their claims arising solely out of ProctorU’s

“Services.” As discussed above, Plaintiffs claims do relate to and arise out of

ProctorU’s Services. But ProctorU’s Services are subject to ProctorU’s Privacy

Policy. And ProctorU’s Privacy Policy is expressly incorporated into ProctorU’s

Terms of Services. As a result, Plaintiffs’ claims necessarily relate to and/or arise

out of both ProctorU’s Services and ProctorU’s Terms of Service, and consequently

are governed by the choice-of-law provision.

Relatedly, Plaintiffs argue that the forum-selection clause in the Terms of

Service supports this distinction between claims arising out of the Terms of Service

and their claims arising solely out of the “Services.” According to Plaintiffs,

“ProctorU’s choice of law clause covers claims that arise out of or relate to its Terms

of Service. By contrast, ProctorU’s choice of forum clause covers ‘[a]ll claims,

legal proceedings, or litigation arising out of or in connection with or related to the

Services.’” Doc. 58 at 10 (quoting Doc. 23-1 at 13) (emphasis in original).

But Plaintiffs’ argument appears to presuppose that their BIPA claims cannot

be governed by both the forum-selection provision (as the Central District of Illinois

ruled), and the choice-of-law provision (as this court now rules). Based on the plain

language of the contract (as discussed above), those provisions are not mutually

exclusive. The scopes of those provisions can overlap, and—with respect to

Plaintiffs’ BIPA claims—those scopes do overlap. There is no ambiguity or

superfluity in this regard.

Plaintiffs also argue that the choice-of-law provision does not cover their

BIPA claims because those claims are “statutory torts.” See, e.g., Doc. 65 at 2. But

the determinative question is not whether Plaintiffs’ claims properly are

characterized as sounding in contract, tort, or even statutory tort. In construing the

choice-of-law provision, the question still is one of contract interpretation—what is

the “scope of the provision.” Alabama Aircraft Indus. v. Boeing Co., 2022 U.S.

App. LEXIS 4039, at *22 (11th Cir. Feb. 14, 2022) (“‘[I]n determining whether a

choice of law clause contained in a contract between two parties also governs tort

claims between those parties, a court must first examine the scope of the provision.’”

(quoting Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1162 (11th Cir. 2009))).7

And (as discussed above), based on the plain language of the contract, Plaintiffs’

BIPA claims fall within the scope of the choice-of-law provision.

The court here notes that, in Alabama Aircraft, the Eleventh Circuit ruled that

the choice-of-law provision in that case—which governed “the rights and liabilities

of the parties to th[e] Agreement”—covered a statutory tort claim for

misappropriation of trade secrets. See 2022 U.S. App. LEXIS 4039, at *24–25. As

Plaintiffs correctly point out (see Doc. 65 at 2), in dicta in Alabama Aircraft, the

Eleventh Circuit did observe that “[w]hether Alabama courts would enforce a

choice-of-law provision in a contract when the claim at issue is a statutory tort is a

7 For instance, “[a] choice of law provision that relates only to the agreement will

not encompass related tort claims,” but a provision that “purports to govern ‘all

disputes’ having a connection to the agreement and not just the agreement itself”

covers tort claims “necessarily connected to the agreement.” Cooper, 575 F.3d at

1162.

question for which we do not find a clear answer.” 2022 U.S. App. LEXIS 4039,

at *22 n.15 (citing Williams v. Norwest Fin. Ala., Inc., 723 So. 2d 97, 101 (Ala. Civ.

App. 1998)). But the Alabama Court of Civil Appeals’ decision in Williams, on

which the Eleventh Circuit relied in this respect, did not address a per se rule whether

(or not) all contractual choice-of-law provisions would cover all statutory tort

claims. Rather, just like Alabama Aircraft, and just like this case, the question in

Williams was whether—on the plain language of the parties’ contract—the particular

choice-of-law provision at issue covered the particular claim at issue. See Williams,

723 So. 2d at 101.8

Here, based on the allegations in Plaintiffs’ complaint and the plain language

of the parties’ contract, the choice-of-law provision does cover Plaintiffs’ two BIPA

claims.

8 In relevant part, the Court of Civil Appeals in Williams reasoned that “[t]he

documents signed by the parties contained the following choice-of-law clause:

‘This loan and Note and Security Agreement are governed by the laws of Alabama.’

. . . We conclude that the choice-of-law clause would require that Alabama law be

applied if [the plaintiff] had complained of a breach of the loan and security

agreement; however, [the plaintiff’s] claims sound in tort and allegedly arise from

the facts and circumstances surrounding the making of the loan and security

agreement. Therefore, the choice-of-law clause does not [apply].” 723 So. 2d at

101.

II. The choice-of-law provision is enforceable and bars Plaintiffs’ BIPA

claims because Alabama choice-of-law rules require the court to apply

the plain language of that provision, and not to apply Restatement

§§ 187–188.

Because Plaintiffs’ BIPA claims are governed by the choice-of-law provision

in ProctorU’s Terms of Service, the next question is whether that provision is

enforceable according to Alabama choice-of-law rules. As noted above, the parties

agree that Alabama choice-of-law rules control, and there are no contract defenses

at issue with respect to the validity or enforceability of ProctorU’s Terms of Service

or the choice-of-law provision.

The plain language of the choice-of-law-provision—which provides that

claims “will be governed by the laws of the State of Alabama,” Doc. 21-1 at 12—

bars Plaintiffs’ Illinois state-law BIPA claims. Consequently, Plaintiffs argue that

the choice-of-law provision is unenforceable. Specifically, Plaintiffs argue that

Alabama choice-of-law rules apply §§ 187–188 of the Restatement (Second) of

Conflicts of Laws to determine whether a choice-of-law provision is enforceable.9

9 Restatement § 187 (Law of the State Chosen by the Parties) provides as follows:

“(1) The law of the state chosen by the parties to govern their contractual rights and

duties will be applied if the particular issue is one which the parties could have

resolved by an explicit provision in their agreement directed to that issue. (2) The

law of the state chosen by the parties to govern their contractual rights and duties

will be applied, even if the particular issue is one which the parties could not have

resolved by an explicit provision in their agreement directed to that issue, unless

either (a) the chosen state has no substantial relationship to the parties or the

transaction and there is no other reasonable basis for the parties choice, or

(b) application of the law of the chosen state would be contrary to a fundamental

See Doc. 58 at 12–14. Then, under Restatement §§ 187–188, Plaintiffs argue that

the choice-of-law provision in ProctorU’s Terms of Service is unenforceable, that

Illinois substantive law applies, and that Plaintiffs can pursue their Illinois state-law

BIPA claims. See Doc. 58 at 15–29; In re Facebook Biometric Information Privacy

Litig., 185 F. Supp. 3d 1155 (N.D. Cal. 2016).

But, with respect to choice-of-law provisions like the one at issue in this case,

Alabama choice-of-law rules apply the plain terms of the provision and do not apply

a Restatement §§ 187–188 balancing analysis.10

policy of a state which has a materially greater interest than the chosen state in the

determination of the particular issue and which, under the rule of § 188, would be

the state of the applicable law in the absence of an effective choice of law by the

parties. (3) In the absence of a contrary indication of intention, the reference is to

the local law of the state of the chosen law.” Id.

Furthermore, Restatement § 188 (Law Governing in Absence of Effective Choice

by the Parties) provides as follows: “(1) The rights and duties of the parties with

respect to an issue in contract are determined by the local law of the state which,

with respect to that issue, has the most significant relationship to the transaction and

the parties under the principles stated in § 6. (2) In the absence of an effective

choice of law by the parties (see § 187), the contacts to be taken into account in

applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place

of performance, (d) the location of the subject matter of the contract, and (e) the

domicil, residence, nationality, place of incorporation and place of business of the

parties. These contacts are to be evaluated according to their relative importance

with respect to the particular issue. (3) If the place of negotiating the contract and

the place of performance are in the same state, the local law of this state will usually

be applied, except as otherwise provided in §§ 189–199 and 203.” Id.

10 As such, the court does not address the parties’ arguments—pursuant to

Restatement §§ 187–188—about whether Illinois or Alabama substantive law

should apply based on that balancing analysis. See Doc. 55 at 23–33; Doc. 58 at

Alabama choice-of-law rules require that the court must “first look to the

contract to determine whether the parties have specified a particular sovereign’s law

to govern.” Stovall v. Universal Constr. Co., 893 So. 2d 1090, 1102 (Ala. 2004).

On the question whether a given choice-of-law provision is enforceable

pursuant to Alabama choice-of-law rules, the Alabama Supreme Court’s decision in

Cherry, Bekaert & Holland v. Brown is controlling. 582 So. 2d 502 (Ala. 1991).

According to Cherry, “Alabama law has long recognized the right of parties

to an agreement to choose a particular state’s laws to govern an agreement.” 582

So. 2d at 506 (citing Craig v. Bemis Co., 517 F.2d 677 (5th Cir. 1975)); accord

Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So. 2d 1129, 1133 (Ala. 2003); see

also Alabama Aircraft, 2022 U.S. App. LEXIS 4039, at *21 (“Contractual choice-

of-law provisions are generally enforceable under Alabama law, at least for breach-

of-contract claims.” (citing Stovall, 893 So. at 1102)).

In Cherry, the Alabama Supreme Court provided an exception to this general

“right of parties to an agreement to choose a particular state’s laws to govern an

agreement.” 582 So. 2d at 506. The Supreme Court instructed that, “[w]hile

parties normally are allowed to choose another state’s laws to govern an agreement,

where application of that other state’s laws would be contrary to Alabama policy,

the parties’ choice of law will not be given effect and Alabama law will govern the

15–28; Doc. 61 at 10–15.

agreement.” Id. at 507 (emphasis added). The parties in Cherry “ha[d] chosen

North Carolina law to govern the agreement,” but the Supreme Court invalidated a

covenant not to compete—that “North Carolina law would [have] enforce[d]”—

because “Alabama’s policy against covenants not to compete is a fundamental public

policy.” Id. at 507.

The Alabama Supreme Court reiterated this Alabama-policy exception five

years later in Buckley v. Seymour: “[T]he right of parties to a contract to choose the

law governing their obligations is recognized by Alabama law only if the

consequences of that election are not contrary to Alabama public policy.” 679 So.

2d 220, 226 (Ala. 1996) (emphasis added).

Here, because the parties contracted for Alabama substantive law in the

choice-of-law provision, that provision is governed by Cherry’s general rule of the

“right of parties to an agreement to choose a particular state’s laws to govern.” 582

So. 2d at 506. And that choice of Alabama substantive law cannot be contrary to

Alabama public policy, so Cherry’s Alabama-policy exception cannot apply. Id. at

507.

Indeed, Plaintiffs have identified no Alabama state appellate decision wherein

the court has invalidated a choice-of-law provision—that, like the provision in

ProctorU’s Terms of Service, chooses Alabama substantive law—either on public

policy grounds or pursuant to Restatement §§ 187–188. And this court has found

none.

Plaintiffs argue instead that the public policy exception in Cherry is not

Alabama-only, and that Alabama courts apply Restatement §§ 187–188 “whenever

the chosen state’s law violates the fundamental policy of the non-chosen state (if the

non-chosen state has a materially greater interest than the state chosen by the parties

and would otherwise apply absent the parties’ choice).” Doc. 58 at 14. According

to Plaintiffs, “[s]ometimes, that’s Alabama; other times—like here—it’s not.” Doc.

58 at 14. Plaintiffs’ argument is based in part on Blalock v. Perfect Subscription

Co., a 1978 federal decision from the United States District Court for the Southern

District of Alabama. See 458 F. Supp. 123 (S.D. Ala. 1978); see, e.g., Doc. 58 at

13.

Plaintiffs are correct that Blalock did discuss Restatement §§ 187–188.

Plaintiffs also are correct that, in Cherry, the Alabama Supreme Court discussed

both Blalock and Restatement §§ 187–188. But what matters is that the Alabama

Supreme Court in Cherry did not adopt Restatement §§ 187–188; nor has the

Supreme Court adopted Restatement §§ 187–188 since Cherry.

As a preliminary matter, it is the Alabama Supreme Court’s decision in

Cherry—and not the federal lower court decision in Blalock—that controls on this

question of Alabama state law.11 In Cherry, the Supreme Court reasoned that

11 See, e.g., Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1177 (11th Cir.

“North Carolina law would seem to govern the present agreement, because [the

parties] have apparently chosen the laws of North Carolina to govern it,” but that

“this principle is qualified by the principles set out in [Blalock], and the cases

following it.” 582 So. 2d at 506.

The Supreme Court summarized the Blalock holding as follows: The

“Southern District of Alabama held that where the parties’ choice of law would be

contrary to the fundamental public policies of the forum state, Alabama, the parties’

choice of law could not be given effect and that the laws of the forum must control

the agreement.” Id. at 506–07.12 The Supreme Court noted that the “Blalock court

referred to [Restatement §§ 187–188] for guidance,” and then included lengthy

quotations from Restatement § 187, comment (g) to Restatement § 187, and the

comments to Restatement § 187. Id. at 507. The Supreme Court then summarized

the Blalock holding again: “The Blalock court went on to hold that because the

covenant not to compete, which would be enforced under Pennsylvania law, ‘flies

directly in the face of the public policy of Alabama as set out by statute,’ the parties’

choice of law could not be given effect, and the law of Alabama . . . governed the

2013) (“‘[A]s a federal court sitting in diversity, [the court] [is] required to apply the

law as declared by the state’s highest court.’” (quoting CSX Transp., Inc. v. Trism

Specialized Carriers, Inc., 182 F.3d 788, 790 (11th Cir. 1999))).

12 In Blalock, “the parties to an agreement, which contained a covenant not to

compete, chose Pennsylvania law (which enforces covenants not to compete) to

govern the agreement.” Cherry, 582 So. 2d at 506.

agreement.” Id. at 507 (citation omitted). Characterizing the “situation” in Cherry

as “similar” to that in Blalock, the Supreme Court “h[e]ld that the contractual choice

of North Carolina law cannot be given effect and that Alabama law will govern this

agreement.” Id. at 507–08.13

For sake of completeness, in Blalock, the court initially reasoned that the

choice-of-law provision in that case “[wa]s due to be enforced and that the laws of

the State of Pennsylvania govern[ed] the construction of th[e] contract.” 458 F.

Supp. at 126. But the “crucial question” was “the validity of the covenant against

competition contained in the contract,” as to which the court “[began] its analysis

with the conclusion that the covenant against competition [wa]s enforceable against

the plaintiff in the absence of some showing that its’ enforcement [wa]s due to be

excused or prohibited.” Id. Then, reasoning that the “the covenant would be void

under Alabama law,” the court restated the question as whether to “give effect to the

Pennsylvania law and enforce the contract, or find that the Alabama law [wa]s

13 The Supreme Court in Cherry reasoned as follows: “In this case, because the

parties have chosen North Carolina law to govern the agreement and North Carolina

law would enforce the covenant not to compete . . . , the parties’ choice of law must

fall. This Court finds that Alabama’s policy against covenants not to compete is a

fundamental public policy; that Alabama law would be applicable but for the parties’

choice of North Carolina law; and that Alabama has a materially greater interest than

North Carolina in the determination of this issue, because [the defendant] is

attempting to enforce a covenant not to compete in Alabama and against an Alabama

resident. Furthermore, application of North Carolina law, enforcing the covenant

not to compete, clearly ‘flies directly in the face of the public policy of Alabama.’”

582 So. 2d at 507 (quoting Blalock, 458 F. Supp. at 127).

controlling on this point and declare the covenant void.” Id. at 126–27. Stating

that “[t]here ha[d] been no Alabama appellate decision involving [similar] factual

circumstances,” the Blalock court “[found] it appropriate to look to the teachings of

the American Law Institute,” and then quoted at length from Restatement § 187 and

comment (g) to Restatement § 187. Id. at 127 (also discussing Restatement § 188).

“Under th[e] [Restatement’s] characterization of the law,” the Blalock court ruled

that Restatement § 187(2)(b) “clearly requires this Court to refuse enforcement of

the anti-competition covenant since it flies directly in the face of the public policy

of Alabama as set out by statute, and since the Court concludes that Alabama law

would be applicable but for the contractual choice of Pennsylvania.” Id. at 127.

Based on their reading of Cherry, Plaintiffs argue that “the question is whether

application of the chosen law would be contrary to a fundamental policy ‘of a state

which has a materially greater interest than the chosen state . . . and which . . . would

[otherwise] be the state of the applicable law,’ not specifically whether the chosen

law would be contrary to fundamental Alabama public policy.” Doc. 58 at 13

(citing Cherry, 582 So. 2d at 507; Restatement § 187(2)(b)). But that is not what

Cherry says. The Alabama Supreme Court in Cherry could have adopted

Restatement §§ 187–188, but it did not. Tellingly, the Supreme Court never

conducted the multi-factor, balancing analysis that Restatement §§ 187–188 outline,

and that the parties’ briefing here details in depth. See Doc. 58 at 15–28 (arguing

that the Restatement §§ 187–188 analysis favors the application of Illinois law);

Doc. 55 at 23–33; Doc. 61 at 10–15 (arguing that the Restatement §§ 187–188

analysis favors the application of Alabama law); see also DJR Assocs., LLC v.

Hammonds, 241 F. Supp. 3d 1208, 1223–29 (N.D. Ala. 2017) (conducting a full-

scale Restatement §§ 187–188 analysis that is absent from the Cherry decision).

While Blalock embraced Restatement §§ 187–188, Cherry reduced Blalock’s

holding into an Alabama-only exception to contracting parties’ general right to

choose a particular state’s laws to govern: “[W]here the parties’ choice of law

would be contrary to the fundamental public policies of the forum state, Alabama,

the parties’ choice of law [cannot] be given effect and the laws of the forum must

control the agreement.” Cherry, 582 So. 2d at 506–07 (emphasis added).

Plaintiffs also argue that Cherry “expressly used the Second Restatement

approach.” Doc. 65 at 3. But that again is not what Cherry expressly says.

Nowhere in the Cherry decision does the Supreme Court hold that the Restatement

§§ 187–188 analysis governs the enforceability of a choice-of-law provision under

Alabama law. Rather (as discussed above), a close reading of Cherry shows that

the Alabama Supreme Court did not explicitly apply the Restatement analysis, but

instead boiled down the Blalock holding into an Alabama-only exception to the

general rule of contracting parties’ right to choose another state’s laws to govern.

As stated by Cherry, and confirmed by Buckley, the rule under Alabama law

is that a valid choice-of-law provision controls unless it violates Alabama public

policy. See Cherry, 582 So. 2d at 506–07; Buckley, 679 So. 2d at 226. And (as

noted above), there appears to be no Alabama state appellate caselaw that, pursuant

to Restatement §§ 187–188, invalidates a choice-of-law provision that—like the

provision in ProctorU’s Terms of Service—chooses Alabama substantive law.

Moreover, choice-of-law provisions are routinely enforced in Alabama

without any Restatement §§ 187–188 analysis. See, e.g., Polaris, 879 So. 2d at

1133; Ex parte HealthSouth Corp., 974 So. 2d 288, 295 (Ala. 2007) (applying

Michigan substantive law without additional analysis because the agreement

contained “a choice-of-law clause that states that Michigan law will govern the

interpretation of the contract”); Stovall, 893 So. 2d 1090; see also Jennmar of

Kentucky, Inc. v. Wilson, 2021 U.S. Dist. LEXIS 146953, at *10 (N.D. Ala. Aug. 5,

2021) (“Alabama courts generally honor contractual choice of law provisions.”).

Plaintiffs have identified several federal district court decisions that have

applied Restatement §§ 187–188 pursuant to Alabama choice-of-law rules,

including some that have invalidated a choice-of-law provision that chooses

Alabama substantive law. See, e.g., Doc. 58 at 8, 12–14; Wingard v.

Lansforsakringar AB, 2013 U.S. Dist. LEXIS 141572, at *1 (M.D. Ala. Sept. 30,

2013); Mercedes-Benz U.S. Int’l, Inc. v. Cobasys, LLC, 605 F. Supp. 2d 1189 (N.D.

Ala. 2009); DJR Assocs., 241 F. Supp. 3d 1208; McGriff Seibels & Williams, Inc. v.

Sparks, 2019 U.S. Dist. LEXIS 161548, at *1 (N.D. Ala. Sept. 23, 2019); Blalock,

458 F. Supp. 123; Core Laboratories LP v. AmSpec, 2018 U.S. Dist. LEXIS 228565,

at *30 (S.D. Ala. May 10, 2018).

But none of these cases appears to have analyzed Cherry (or Buckley), or to

have asked whether Alabama choice-of-law rules actually apply a Restatement

§§ 187–188 analysis; instead, these cases appear to have assumed without deciding

that Restatement §§ 187–188 apply under Alabama law. See, e.g., McGriff Seibels,

2019 U.S. Dist. LEXIS 161548, at *30 (“The court must analyze whether the parties’

‘contractual choice-of-law clause is enforceable by reference to the Second

Restatement of Conflicts §§ 187–88.’” (quoting DJR Assocs., 241 F. Supp. 3d at

1222)); Wingard, 2013 U.S. Dist. LEXIS 141572, at *33 (“Alabama courts analyze

whether a party’s contractual choice-of-law clause is enforceable by reference to the

Second Restatement of Conflicts §§ 187–88.” (citing Cherry, 582 So. 2d 502)).

While this court cannot say that those decisions were wrongly decided, this court

can say that those decisions are not binding here, and that this court reads Cherry

differently. See also Allied Sales & Serv. Co. v. Global Indus. Techs., Inc., 2000

U.S. Dist. LEXIS 7774, at *11–12 (S.D. Ala. May 1, 2000) (reasoning that Cherry

“did not adopt or even address [Restatement § 187(2)(a)], but dealt only with the

separate issue of when to uphold choice of law provisions when the selected state’s

substantive law violates Alabama public policy”).

Plaintiffs argue further that the Alabama Supreme Court—if not explicitly—

has implicitly or practically adopted the Restatement §§ 187–188 analysis. But

(again), that is not what the Alabama Supreme Court did in Cherry or in Buckley, or

has done since. And, as the United States Supreme Court has observed in a different

context, elephants don’t hide in mouseholes.14 The Alabama Supreme Court knows

just how to adopt certain Restatement sections into Alabama law (or not), and the

Supreme Court has not done so with respect to Restatement §§ 187–188. See, e.g.,

Fitts v. Minnesota Mining & Mfg. Co., 581 So. 2d 819, 823 (Ala. 1991) (collecting

cases, confirming that Alabama law adheres “to the traditional view of the first

Restatement, which looks to the lex loci delicti in tort cases,” and concluding that,

“[a]fter careful consideration, we are not convinced that we should abandon the lex

loci delicti rule for the approach of the Restatement (Second) on the facts of the

present case”); Cobbs, Allen & Hall, Inc. v. Epic Holdings, Inc., 335 So. 3d 1115,

1134 (Ala. 2021) (“[W]e expressly hold that [Restatement (Second) of Torts] § 772

should be applied in appropriate factual scenarios that implicate the defense of

justification.”); Laster v. Norfolk S. Ry., 13 So. 3d 922, 930 (Ala. 2009) (“Having

held that the duty of care set out in Restatement [(Second) of Torts] § 339, rather

14 Cf. Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress,

we have held, does not alter the fundamental details of a regulatory scheme in vague

terms or ancillary provisions—it does not, one might say, hide elephants in

mouseholes.”).

than the conventional duty of care, applies in this case, we turn to the elements of

the Restatement test.”).

In any event, if forced to choose between what the Alabama Supreme Court

explicitly has said (and hasn’t said), and what the Alabama Supreme Court arguably

may have implied or practically applied, this court chooses what the Alabama

Supreme Court explicitly has said—here, in Cherry, Buckley, and since.

Plaintiffs argue that this Alabama-only exception to contracting parties’

general right to choose a particular state’s laws to govern makes for an unfair one-

way ratchet that respects the sovereignty of Alabama law, but not the interests and

substantive law of other states. See, e.g., Doc. 58 at 20 (arguing that BIPA

“embodies a fundamental policy of the state of Illinois,” and that applying the

“contractual choice of local law . . . would eviscerate a BIPA claim” (citation and

quotation marks omitted)); Restatement § 187 cmt. g (“Fulfillment of the parties’

expectations is not the only value in contract law; regard must also be had for state

interests and for state regulation.”); DJR Assocs., 241 F. Supp. 3d at 1221 (“The

desire of the parties is outweighed by the sovereignty of the State.”). But that

argument would be for the Alabama Supreme Court to address—not this court.

CONCLUSION

For the reasons stated above, the court GRANTS Defendant ProctorU’s

motion to dismiss (Doc. 21), as supplemented on choice-of-law grounds, and

DISMISSES WITH PREJUDICE Plaintiffs’ BIPA claims. The court separately

will enter final judgment. In this court, Plaintiffs have not requested leave to amend

their complaint in the event of dismissal; to the extent that Plaintiffs would seek such

leave, Plaintiffs should file an appropriate motion.

DONE and ORDERED this November 22, 2022.

AG A. DANELLA

UNITED STATES MAGISTRATE JUDGE

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