Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 1 of 20 PageID #:687
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`THOMAS BURLINSKI and MATTHEW,
`MILLER, on behalf of themselves and all
`other persons similarly situated, known
`and unknown,
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`Plaintiffs,
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`v.
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`TOP GOLF USA INC., TOPGOLF USA
`SALT CREEK, LLC, and TOPGOLF
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`USA, NAPERVILLE, LLC,
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`Defendants.
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`No. 19-cv-06700
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`Judge Edmond E. Chang
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`MEMORANDUM OPINION AND ORDER
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`Thomas Burlinski and Matthew Miller have brought a proposed class action
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`against their former employer, Topgolf, for violations of the Illinois Biometric Privacy
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`Act, 740 ILCS 14/1 et seq. R. 1-1, Second Am. Compl.1 Burlinski and Miller allege that
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`Topgolf required its employees to track their shifts using a fingerprint-scan system
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`and that Topgolf later disclosed their fingerprint data to a third-party vendor. In
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`October 2019, Topgolf removed the case to federal court, R. 1, Notice of Removal, and
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`then filed a motion to dismiss the claims, R. 19. The next day, the Plaintiffs filed a
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`motion to remand the case to state court. R. 21. For the reasons discussed below, the
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`motion to remand is denied in part and granted in part, and the motion to dismiss is
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`denied.
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`1Citations to the record are noted as “R.” followed by the docket number, and when
`necessary, the page or paragraph number.
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`1
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`I. Background
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`For purposes of these motions, the Court accepts as true the factual allegations
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`in the complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Topgolf is a company
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`that operates driving range and bar facilities across the country. Second Am. Compl.
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`¶ 1. Thomas Burlinksi worked as a bartender at Topgolf for a few months in 2017,
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`while Matthew Miller worked in a variety of positions at Topgolf from 2017 through
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`2019. Id. ¶¶ 2-3. Both Burlinksi and Miller were paid by the hour. Id.
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`During this period, Topgolf required its hourly employees to track their time
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`using a biometric fingerprint-scan system. Second Am. Compl. ¶ 4. Specifically,
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`hourly employees were asked to scan their fingerprints each time they began a shift,
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`stopped to take a break, returned from a break, and finished working a shift. Id. ¶ 5.
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`According to the Plaintiffs, Topgolf’s rationale for using a biometric timecard system,
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`as opposed to identification numbers or badges, was to prevent one employee from
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`clocking in for a different employee. Id. ¶ 7.
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`The Plaintiffs allege that Topgolf, by implementing the biometric time clock
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`system, “captured, collected, and stored” their fingerprint data. Second Am. Compl.
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`¶ 30. What’s more, Topgolf allegedly “disseminated and disclosed” that fingerprint
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`data to a third-party time-keeping vendor. Id. ¶ 31. Burlinski asserts that Topgolf
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`never provided him any written disclosures about the collection, retention,
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`destruction, use, or dissemination of his fingerprint data. Id. ¶ 32. Similarly, Miller
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`claims that Topgolf never provided him written disclosures until nearly two years
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`into his employment. Id. ¶ 33. And disclosure aside, both Burlinski and Miller allege
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`2
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`that Topgolf never obtained their consent before collecting their fingerprints in the
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`first place. Id. ¶ 34.
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`Based on these allegations, Burlinski and Miller filed suit against Topgolf in
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`Illinois state court, alleging certain violations of the Illinois Biometric Privacy Act,
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`which has come to be known as BIPA for short. See Second Am. Compl. Specifically,
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`Burlinski and Miller brought claims under three separate sections of BIPA:
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` Retention Schedule: Section 15(a), which requires companies to
`maintain a public retention and destruction schedule before
`collecting biometric data, 740 ILCS 14/15(a);
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` Consent to Collect: Section 15(b), which requires companies to obtain
`written consent before collecting biometric data, 740 ILCS 14/15(b);
`and
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` Consent to Disclose: Section 15(d), which requires companies to
`obtain written consent before disclosing biometric data to third
`parties, 740 ILCS 14/15(d).
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`In addition, Burlinski and Miller seek to represent a class of Illinois Topgolf
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`employees who were required to scan their fingerprints into the biometric time-clock
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`system. Id. ¶ 35. The proposed class, according to the Plaintiffs, includes more than
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`40 members. Id. ¶ 37.
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`In October 2019, Topgolf removed the case to federal court, alleging diversity
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`jurisdiction, 28 U.S.C. § 1332(a), as the basis for subject matter jurisdiction. Notice
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`of Removal. Specifically, Topgolf alleged that complete diversity exists among the
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`parties2 and the amount in controversy exceeds $75,000. Id. ¶¶ 6-13. On the amount-
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`2Both Burlinski and Miller are domiciled in and thus citizens of Illinois. Notice of
`Removal ¶ 6. Corporations are citizens of their state of incorporation and principal place of
`business. 28 U.S.C. §1332(c)(1). Limited liability companies are citizens of any state in which
`an LLC member is a citizen. Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998). Here,
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`3
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`in-controversy question, Topgolf calculated that Burlinski and Miller were each
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`alleging five BIPA violations and seeking statutory damages of $5,000 per reckless
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`violation, plus attorney’s fees (which totaled $26,000 at the time that the notice was
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`filed). Id. ¶ 14. In other words: 2 plaintiffs x 5 violations per plaintiff x $5,000 per
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`violation = $50,000, and then $50,000 + $26,000 in fees = $76,000. Id.
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`In addition to the individual claims, Topgolf also argued that, in light of the
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`proposed class action, there was federal jurisdiction under the Class Action Fairness
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`Act, 28 U.S.C. § 1332(d). Specifically, Topgolf argued that the amount in controversy
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`for the class-action claims exceeds CAFA’s $5,000,000 statutory requirement. Notice
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`of Removal ¶¶ 16-19. Here, Topgolf counted 205 potential class members x 5 alleged
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`violations per individual x $5,000 per violation = $5,125,000. Id. ¶ 19. With the
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`addition of attorneys’ fees, argues Topgolf, the amount in controversy is well over the
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`CAFA minimum. Id. Shortly after removing the case, Topgolf filed a motion to dismiss
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`all of the BIPA claims. R. 19.
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`One day later, Burlinski and Miller filed a motion to remand the case to state
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`court. Their main argument is that the amount in controversy requirements have not
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`been met. For one, Plaintiffs argue that Topgolf improperly aggregated the value of
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`the claims of both Burlinski and Miller to reach the $75,000 threshold under 28
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`Top Golf USA Inc. is a corporation formed in Delaware with a principal place of business in
`Texas. Id. ¶ 9. TopGolf USA Salt Creek, LLC has only one member, Top Golf USA Inc., so the
`Salt Creek LLC is also a citizen of Delaware and Texas. Id. ¶ 10. TopGolf USA Naperville,
`LLC also has only one member, TG Holdings I, LLC. Id. ¶ 11. All of the managers of TG
`Holdings are in turn domiciled in Texas. Id. So, TG Holdings is a Texas citizen, which means
`the Naperville LLC is also a Texas citizen. Id. The Plaintiffs do not dispute these citizenship
`allegations.
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`4
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`U.S.C. § 1332(a). Mot. Remand at 1. Moreover, the Plaintiffs argue that the CAFA
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`removal is also deficient because Topgolf included the value of claims for which the
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`proposed class members lack Article III standing. Id.
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`II. Legal Standard
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`On the motion to remand, the general rule is that a defendant may remove an
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`action filed in state court to federal court in any case in which the plaintiff could have
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`filed the case in federal court in the first place. 28 U.S.C. § 1441(a). The party seeking
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`removal bears the burden of demonstrating federal jurisdiction, “and federal courts
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`should interpret the removal statute narrowly, resolving any doubt in favor of the
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`plaintiff's choice of forum in state court.” Schur v. L.A. Weight Loss Ctrs., Inc., 577
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`F.3d 752, 758 (7th Cir. 2009). Where, as here, defendants invoke diversity
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`jurisdiction, the defendants must demonstrate complete diversity of citizenship and
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`an amount in controversy exceeding $75,000. 28 U.S.C. § 1332(a). Alternatively, for
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`the proposed class action, defendants must allege minimal diversity and an amount
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`in controversy exceeding $5,000,000. 28 U.S.C. § 1332(d).
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`As for the sufficiency of the complaint, Federal Rule of Civil Procedure 8(a)(2)
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`provides that a complaint generally need only include “a short and plain statement
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`of the claim showing that the pleader is entitled to relief.” This short and plain
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`statement must “give the defendant fair notice of what the … claim is and the grounds
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`upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned
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`5
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`Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 6 of 20 PageID #:692
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`up). 3 The Seventh Circuit has explained that this rule “reflects a liberal notice
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`pleading regime, which is intended to ‘focus litigation on the merits of a claim’ rather
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`than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578
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`F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
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`(2002)). “A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
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`state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police
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`of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
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`at 570). These allegations “must be enough to raise a right to relief above the
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`speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the
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`assumption of truth are those that are factual, rather than mere legal conclusions.
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`Iqbal, 556 U.S. at 678-79.
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`III. Analysis
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`A. Motion to Remand
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`First up is the motion to remand. As mentioned earlier, only the amount-in-
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`controversy requirement is in dispute. Specifically, Topgolf must demonstrate that
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`the amount in controversy exceeds $75,000 for purposes of the individual claims, 28
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`U.S.C. § 1332(a), and that the amount of controversy exceeds $5,000,000 for purposes
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`of the proposed class action under the Class Action Fairness Act, 28 U.S.C. § 1332(d).
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`3This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
`and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
`18 Journal of Appellate Practice and Process 143 (2017).
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`6
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`Here, the Plaintiffs argue that Topgolf has failed to meet the amount-in-controversy
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`requirements for both so-called “traditional” diversity jurisdiction and diversity
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`jurisdiction under CAFA. R. 22 at 3. Specifically, they point out that Topgolf has
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`impermissibly aggregated the value of the individual claims for both Burlinski and
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`Miller to meet the $75,000 amount-in-controversy requirement under 28 U.S.C.
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`§ 1332(a). Id. at 4. In addition, on the $5,000,000 CAFA requirement, the Plaintiffs
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`argue that Topgolf incorrectly included the value of claims for which the proposed
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`class members lack Article III standing. Id. at 3.
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`1. Article III Standing for CAFA Claims
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`Addressing the class allegations first, the Plaintiffs initially argued that there
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`is no diversity jurisdiction under CAFA because, in reaching the $5,000,000 amount-
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`in-controversy threshold, Topgolf incorrectly included the value of claims for which
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`the proposed class members do not have Article III standing. R. 22 at 3. As a
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`reminder, Topgolf counted five separate BIPA violations for purposes of the amount-
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`in-controversy calculation: one Section 15(a) violation, three Section 15(b) violations,
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`and one Section 15(d) violation. See Notice of Removal ¶ 19. The Plaintiffs argued in
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`their original motion to remand that the three Section 15(b) notice-and-consent
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`claims should be excluded from the amount-in-controversy calculation because
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`existing caselaw held that there was no Article III standing for those claims. R. 22 at
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`4. With those claims out of the way, that just left 205 potential class members x 2
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`potential BIPA violations each, which would not amount to enough to bring the case
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`over the $5,000,000 CAFA threshold. Id.
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`Meanwhile, two things happened. First, in May 2020, the Seventh Circuit held
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`that plaintiffs generally do have Article III standing to pursue Section 15(b) claims,
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`because Section 15(b) involves a concrete and particularized injury sufficient to confer
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`Article III standing. Bryant v. Compass Grp. USA, Inc., 958 F.3d 617, 624-26 (7th
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`Cir. 2020). The Plaintiffs acknowledge that their Section 15(b) claims “are
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`indistinguishable” from the Section 15(b) claims at issue in Bryant, so the Plaintiffs
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`concede that there is Article III standing on those claims. R. 50 at 2. That means
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`Topgolf may properly include the Section 15(b) claims in the CAFA amount-in-
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`controversy calculation. Id. On the other hand, the Seventh Circuit also held that
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`plaintiffs generally do not have Article III standing to pursue Section 15(a) claims,
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`which deal with the requirement to maintain a publicly available data retention and
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`destruction policy. Bryant, 958 F.3d at 626. Again, the Plaintiffs argue that their
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`Section 15(a) claims “largely mirror” the Section 15(a) claims at issue in Bryant, but
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`this time, the result is that there is no Article III standing for the Section 15(a) claims
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`and Topgolf therefore may not consider the Section 15(a) claims in the CAFA amount-
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`in-controversy calculation. R. 50 at 3. Topgolf agrees that the Section 15(b) claims
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`should be included and the Section 15(a) claims excluded from the amount-in-
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`controversy calculation. R. 51 at 2-3.
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`The second development was factual: Topgolf now estimates that there are
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`probably 500 potential class members, instead of the original 205. Def. Position Paper
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`at 4; R. 51-2, Clark Decl. ¶ 5. With that increased class size, the Bryant holding no
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`longer matters, because even taking out the Section 15(a) claims, Topgolf asserts that
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`there is enough to reach the $5,000,000 threshold based on just the Section 15(b) and
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`Section 15(d) claims. Def. Position Paper at 5-6. Indeed, Topgolf points out that even
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`under the most restrictive interpretation of the Second Amended Complaint—that is,
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`only one alleged Section 15(b) violation and only one alleged Section 15(d) violation—
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`the increased class size is enough to bring the math up to the CAFA requirement. Id.
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`at 5. The Plaintiffs agree that the increased class of 500 potential members is enough
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`to surpass the CAFA amount-in-controversy requirement, and that there is no longer
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`any basis to challenge subject matter jurisdiction.4 R. 53 at 2. So the motion to
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`remand is denied on the Section 15(b) notice and Section 15(d) disclosure claims, and
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`those claims will proceed in federal court.
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`That just leaves the Section 15(a) claims, which, as mentioned above, do not
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`present the concrete and particularized injury necessary for Article III standing
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`purposes. Thus, because there is no Article III jurisdiction over the Section 15(a)
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`claims, it makes sense to sever and remand those claims back to state court, as the
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`Plaintiffs have requested. R. 53 at 2. So the motion to remand is granted on the
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`Section 15(a) claim, and the Plaintiffs are free to pursue that claim in state court.
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`4 This also renders moot the Plaintiffs’ original argument that the amount-in-
`controversy requirement for “traditional” diversity jurisdiction purposes had not been
`satisfied. As mentioned above, the Plaintiffs initially argued that Topgolf improperly
`aggregated the claims of Burlinski and Miller to reach the $75,000 threshold under 28 U.S.C.
`§ 1332(a). R. 22 at 3. The Defendants appeared to concede that the aggregation of the claims
`was wrong but countered that, even when treating the claims of each Plaintiff separately, it
`was not necessarily a “legal impossibility” for the claims to exceed $75,000. R. 27 at 5.
`Because the Defendants have sufficiently shown that subject matter jurisdiction exists under
`CAFA, and the Plaintiffs have accepted that this is no longer a viable basis on which to
`challenge removal, there is no need to address the arguments on this issue for purposes of
`the remand motion.
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`9
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`B. Motion to Dismiss
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`This brings us to the motion to dismiss the Section 15(b) and Section 15(d)
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`claims. Topgolf makes two overarching arguments in support of dismissal. First,
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`Topgolf argues that the BIPA claims are preempted by the Illinois Workers’
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`Compensation Act. R. 20 at 1. Topgolf also argues that the BIPA claims are time-
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`barred by various statutes of limitation, including the one-year statute of limitations
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`for privacy claims, as well as the two-year statute of limitations for personal injury
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`and statutory penalty claims. For the reasons explained below, both arguments are
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`unpersuasive.
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`1. Preemption
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`The preemption argument is up first. As a threshold matter, the Court notes
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`that preemption is an affirmative defense. Baylay v. Etihad Airways P.J.S.C., 881
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`F.3d 1032, 1039 (7th Cir. 2018). The Plaintiffs do not need to plead around an
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`affirmative defense, so the claims will be dismissed only if Plaintiffs have pleaded
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`themselves “out of court” by alleging (and thus admitting) the ingredients of a
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`defense. Chi. Bldg. Design, PC v. Mongolian House Inc., 770 F.3d 610, 613-14 (7th
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`Cir. 2014).
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`Here, the Workers’ Compensation Act is generally meant to be the exclusive
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`remedy for accidental workplace injuries. See 820 ILCS 305/5, 305/11. The Illinois
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`Supreme Court has explained that these two provisions “bar an employee from
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`bringing a common law [or statutory, as in this case] cause of action against his or
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`her employer unless the employee-plaintiff proves: (1) that the injury was not
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`Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 11 of 20 PageID #:697
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`accidental; (2) that the injury did not arise from his or her employment; (3) that the
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`injury was not received during the course of employment; or (4) that the injury was
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`not compensable under the Act.” Meerbrey v. Marshall Field & Co., 564 N.E.2d 1222,
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`1226 (Ill. 1990). Here, Topgolf argues that the Plaintiffs have failed to meet these
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`requirements because all of the BIPA violations that they allege constitute
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`unintentional, and thus “accidental,” injuries that arose from and happened during
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`the course of their employment. R. 20 at 7. Moreover, Topgolf argues that the
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`emotional distress injuries being claimed by the Plaintiffs count as compensable
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`injuries under the Workers’ Compensation Act. Id. at 10-11.
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`The preemption argument is not persuasive. Most importantly, as the
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`Plaintiffs point out, numerous courts facing this precise issue have held that the
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`Workers’ Compensation Act does not preempt BIPA claims in the employment
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`context. R. 26 at 4 n.4 (citing nine state trial court cases). It is true that none of these
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`cases are binding on this Court, but it is nonetheless persuasive that so many Illinois
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`state courts have come out the same way. In addition, the Plaintiffs clarify that they
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`are not seeking compensable injuries under the Workers’ Compensation Act—rather,
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`they are suing purely because Topgolf allegedly violated their statutory rights. Id. at
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`5. And as Plaintiffs correctly point out, the recovery scheme under the Act does not
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`cover these types of purely statutory violations related to biometric privacy. Id. See
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`also 820 ILCS 305/8. Moreover, from a purely common-sense standpoint, it seems
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`clear that biometric privacy violations are simply a bad fit for the types of injuries
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`typically contemplated by the Workers’ Compensation Act, which, at the end of the
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`11
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`Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 12 of 20 PageID #:698
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`day, is meant to provide “financial protection to injured workers.” Murff v. Illinois
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`Workers' Comp. Comm'n, 70 N.E.3d 273, 277 (Ill. App. Ct. 2017).
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`Similarly, Topgolf’s argument that the alleged BIPA violations here are
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`“accidental” injuries is not convincing. According to Topgolf, these claims constitute
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`accidental workplace injuries because the Plaintiffs failed to plead that any specific
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`intent on the part of Topgolf. R. 20 at 8. But even if the Plaintiffs did not explicitly
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`use the words “specific intent,” the Second Amended Complaint clearly alleges that
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`Topgolf required employees to scan their fingerprints into a biometric time-tracking
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`system that collected those fingerprints, failed to give notice or obtain consent before
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`collecting the data, and then disclosed the biometric data to a third-party vendor. See
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`Second Am. Compl. All in all, it is hard to read any of those allegations with an
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`“accidental” gloss. The Plaintiffs, for instance, do not ever say that Topgolf was
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`negligent in disclosing the biometric data to the vendor, or that the failure to obtain
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`consent was some sort of accident. Rather, read in context, the Plaintiffs allege that
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`Topgolf intentionally collected employee fingerprints for purposes of maintaining a
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`biometric timekeeping system. See Treadwell v. Power Sols. Int'l, Inc., 427 F. Supp.
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`3d 984, 990 (N.D. Ill. 2019) (holding that similar BIPA complaint alleged intentional
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`violations for IWCA preemption purposes). No accident there.
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`Last but not least, from a basic statutory-interpretation perspective, Topgolf
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`provides no explanation for why the Illinois General Assembly would have explicitly
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`provided for a cause of action in BIPA, including in the employment context, if the
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`Workers’ Compensation Act was genuinely meant to provide the “exclusive remedy”
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`for accidental workplace injuries in the context of biometric data collection and
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`disclosure. See 740 ILCS 14/10 (specific reference to employment context). Moreover,
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`as the Plaintiffs point out, preemption would defeat BIPA’s purpose, as it has been
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`described by the Illinois Supreme Court: (1) to impose “safeguards to insure that”
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`biometric data is protected “before” it “can be compromised”; and (2) to subject
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`companies that “fail to follow the statute's requirements to substantial potential
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`liability.” Rosenbach v. Six Flags Entm’t Corp., 129 N.E.3d 1197, 1206-07 (Ill. 2019).
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`By essentially foreclosing any avenue of damages liability for employees to sue their
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`employers for biometric privacy violations, preemption would render BIPA useless in
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`the employment context, even though BIPA is clearly meant to apply in that context.
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`Given all this, the BIPA claims are thus not preempted by the Workers’
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`Compensation Act.
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`2. Statute of Limitations
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`Even if the BIPA claims are not preempted, Topgolf argues in the alternative
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`that the claims are time-barred under various statutes of limitation under Illinois
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`law. R. 20 at 2. As a threshold matter, the Court again notes that, as with preemption,
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`the statute of limitations is an affirmative defense. As explained earlier, the Plaintiffs
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`are not required to “anticipate and attempt to plead around defenses,” so dismissal is
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`only proper where the allegations “plainly reveal that the action is untimely under
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`the governing statute of limitations.” Mongolian House, Inc., 770 F.3d at 613-14
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`(cleaned up).
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`13
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`Here, there is no dispute that BIPA itself does not specify a limitations period.
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`And other district courts have noted that this is an unsettled question. See Cothron
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`v. White Castle Sys., Inc., 2020 WL 4569694, at *3 n.4 (N.D. Ill. Aug. 7, 2020)
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`(accepting that “the statute of limitations for BIPA claims has not been definitively
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`resolved and that such claims are potentially subject to a one-, two-, or five-year
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`statute of limitations”) (cleaned up). Topgolf, though, argues that the claims are
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`subject to the one-year limitations period for privacy claims under 735 ILCS 5/13-
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`201. R. 20 at 14. Topgolf also argues that, at most, the claims are subject to the two-
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`year limitations period that applies to both statutory penalties and personal injury
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`claims under 735 ILCS 5/13-202. Id. at 17. The Court is not persuaded by either of
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`those arguments.
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`
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`First, with regard to the one-year limitations period for privacy claims, the
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`Plaintiffs point out that the statutory text explicitly refers to claims for “slander, libel
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`or for publication of matter violating the right of privacy.” 735 ILCS 5/13-201. The
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`Section 15(b) claims do not involve any “publication” element, so this one-year
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`limitations period cannot apply to the Section 15(b) claims. The Section 15(d)
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`disclosure claim is a bit closer, but even there, Topgolf cites no authority for the
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`proposition that disclosure of biometric data to a single, third-party timekeeping
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`vendor would meet the definition of “publication” as it is used in the context of other
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`common-law privacy torts. See Miller v. Motorola, Inc., 560 N.E.2d 900, 903 (Ill. App.
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`Ct. 1990) (explaining that general rule for purposes of public-disclosure claim is that
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`
`
`14
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`

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`Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 15 of 20 PageID #:701
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`“the required communication must be more than that made to a small group; rather,
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`the communication must be made to the public at large”).
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`To be fair, Topgolf does point out that, in the defamation context, the Illinois
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`Appellate Court has held that the “element of publication is satisfied, even within a
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`corporate environment, where the communication is made to any third party.” Popko
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`v. Cont'l Cas. Co., 823 N.E.2d 184, 191 (Ill. App. Ct. 2005). This would suggest that
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`Topgolf’s disclosure of the biometric data to the timekeeping vendor could potentially
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`constitute a “publication” for purposes of 735 ILCS 5/13-201. But Popko is not quite
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`on point. First, Popko was a case about defamation, and under Illinois state law,
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`“publication” is an explicit element of any defamation claim. Popko, 823 N.E.2d at
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`188. So, no matter how broadly or how narrowly the Illinois Appellate Court
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`ultimately defined “publication,” it does not change the fact that defamation would
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`clearly fall within the scope of claims listed in 735 ILCS 5/13-201 because defamation
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`is clearly a cause of action requiring proof of “publication.” Here, by contrast, nothing
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`in the text of BIPA requires “publication” as an element of a Section 15(d) claim.
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`Rather, the statute prohibits “disclosure,” 740 ILCS 14/15(d), which should be read
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`as distinct from publication, which connotes wider dissemination. See Benitez v. KFC
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`Nat. Mgmt. Co., 714 N.E.2d 1002, 1007 (Ill. App. Ct. 1999) (“The fact that publication
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`is not an element of intrusion upon seclusion is crucial, since the plain language of
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`section 13-201 indicates that the one-year statute of limitations governs only libel,
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`slander and privacy torts involving publication … ”).
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`
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`15
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`

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`Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 16 of 20 PageID #:702
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`Similarly, the West Bend case that Topgolf cites in its position paper, R. 51 at
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`7, does not apply here. See W. Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc.,
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`2020 WL 1330494 (Ill. App. Ct. Mar. 20, 2020). There, the Illinois Appellate Court
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`held that a BIPA disclosure claim did count as a publication—but only in the context
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`of interpreting an insurance policy, and not for purposes of interpreting 735 ILCS
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`5/13-201. So that case has no bearing on the statute-of-limitations issue here. All in
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`all, the Court disagrees that biometric privacy claims under BIPA are subject to the
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`one-year limitations period in 735 ILCS 5/13-201.
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`
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`Nor is it clear that the two-year limitations period for personal injury claims
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`and statutory penalties applies to either the Section 15(b) or the Section 15(d) claims.
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`For one, Topgolf fails to explain why an alleged violation of purely statutory rights
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`under BIPA—which is meant to give the Plaintiffs some degree of control over the
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`collection and disclosure of their biometric data—should count as “an injury to the
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`person” as that phrase is used in 735 ILCS 5/13-202. The Defendants urge the Court
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`to take judicial notice of the fact that the Plaintiffs initially alleged emotional distress
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`and mental anguish, which should be enough to establish a personal-injury claim. R.
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`20 at 18. But even if that is true, the Second Amended Complaint clearly states that
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`Plaintiffs are not alleging that they or any of the class members “suffered physical or
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`psychological injuries during their employment as a result of Defendant’s violations
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`of the Biometric Information Privacy Act.” Second Am. Compl. at 3 n.1. This is the
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`operative complaint going forward, and it is clear that the Plaintiffs are not pursuing
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`any sort of personal injury claim, regardless of what they initially alleged.
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`
`
`16
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`

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`Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 17 of 20 PageID #:703
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`
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`As for the statutory-penalty argument, the Court is not convinced that the
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`statutory damages available under BIPA should be treated as a statutory penalty. A
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`statutory penalty: “(1) imposes automatic liability for a violation of its terms; (2) sets
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`forth a predetermined amount of damages; and (3) imposes damages without regard
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`to the actual damages suffered by the plaintiff.” Standard Mut. Ins. Co. v. Lay, 989
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`N.E.2d 591, 599 (Ill. 2013). In contrast, a remedial statute (as opposed to a penal
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`statute) is “designed to grant remedies for the protection of rights, introduce
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`regulation conducive to the public good, or cure public evils.” Id. That being said, even
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`a remedial statute can impose penalties as “one part of the regulatory scheme,
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`intended as a supplemental aid to enforcement rather than as a punitive measure”
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`without being converted into a penal statute. Scott v. Ass’n for Childbirth at Home,
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`Int’l, 430 N.E.2d 1012, 1017 (Ill. 1981).
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`Here, BIPA provides for “liquidated damages of $5,000 or actual damages,
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`whichever is greater.” 740 ILCS 14/20(2) (emphasis added). Thus, for BIPA purposes,
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`the statutory damages appear to be an alternative mode of relief to actual damages,
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`in that it is only when the actual damages are relatively small or unquantifiable that
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`the statutory damages come into play. This is not a case where “it is irrelevant
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`whether plaintiffs have suffered actual damages.” Landis v. Marc Realty, L.L.C., 919
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`N.E.2d 300, 308 (Ill. 2009). Moreover, statutory damages here are not necessarily
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`automatic or predetermined; the Plaintiffs still need to prove that Topgolf acted
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`intentionally or recklessly in order to recover the $5,000 amount. See 740 ILCS
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`14/20(2). Moreover, given that the goal of BIPA is to set up a regulatory framework
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`
`
`17
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`

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`Case: 1:19-cv-06700 Document #: 56 Filed: 09/03/20 Page 18 of 20 PageID #:704
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`to protect biometric privacy, it is safe to conclude that BIPA is not a penal statute,
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`even if it provides for statutory damages. Those statutory damages are clearly part
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`of BIPA’s broader remedial scheme. So, the two-year statute of limitations imposed
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`by 735 ILCS 5/13-202 does not apply. See Meegan v. NFI Indus., Inc., 2020 WL
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`3000281, at *4 (N.D. Ill. June 4, 2020) (“BIPA’s provision for actual damages and the
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`regulatory intent of its enactment show that it is a remedial statute not within the
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`scope of the two-year statute of limitation imposed by section 13-202.”).
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`So, assuming that neither the one-year or the two-year statu