Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 1 of 6 PageID #:1
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`Civil Action No. 1:21-CV-2190
`
`BRITTNEY FREDERICK,
`ALEXANDER PRUEFER, and JINGER
`SANDERS, individually and on behalf of
`all others similarly situated,
`
`Plaintiffs,
`
`v.
`
`EXAMSOFT WORLDWIDE, INC.,
`
`Defendant.
`
`DEFENDANT EXAMSOFT WORLDWIDE, INC.’S NOTICE OF REMOVAL
`
`PLEASE TAKE NOTICE that Defendant ExamSoft Worldwide, Inc.1 (“ExamSoft”), by
`
`and through its undersigned counsel, removes the above-captioned action from the Circuit Court
`
`of Cook County, Illinois, to the United States District Court for the Northern District of Illinois,
`
`Eastern Division, pursuant to 28 U.S.C. § 1441(a), 1446, and 1453, on the ground that federal
`
`jurisdiction exists under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)(A).
`
`I.
`
`BACKGROUND
`
`1.
`
`On March 17, 2021, Plaintiffs Brittney Frederick, Alexander Pruefer, and Jinger
`
`Sanders, individually and on behalf of all others similarly situated, filed this action, captioned
`
`Frederick, et al. v. ExamSoft Worldwide, Inc., in the Circuit Court of Cook County, Illinois, and
`
`the case was docketed at 2021-CH-01276. A true and correct copy of Plaintiffs’ complaint and
`
`summons are attached hereto as Exhibits 2 and 3, respectively.
`
`1 ExamSoft Worldwide, Inc. was renamed ExamSoft Worldwide, LLC in October 2020. See
`Ex. 1 (Declaration of Sebastian Vos) at ¶ 2.
`
`

`

`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 2 of 6 PageID #:2
`
`2.
`
`3.
`
`ExamSoft was served on March 23, 2021. See Ex. 3.
`
`Plaintiffs allege that ExamSoft violated the Illinois Biometric Information Privacy
`
`Act (“BIPA”). Ex. 2 at ¶¶ 68-77.
`
`4.
`
`Specifically, Plaintiffs seek relief on behalf of a purported class of “all Illinois
`
`residents who used ExamSoft to take an exam online and who had their facial geometry or other
`
`biometric information collected, captured, received, or otherwise obtained and/or stored by
`
`Defendant.” Ex. 2 at ¶ 56. Plaintiffs also seek relief on behalf of four purported subclasses defined
`
`as follows:
`
` The “Bar Exam Subclass,” which consists of “[a]ll Illinois residents who took the
`
`October 2020 Illinois Bar Exam and who had their facial geometry collected,
`
`captured, received, or otherwise obtained and/or stored by Defendant.” Id. at ¶ 57.
`
` The “John Marshall Subclass,” which consists of “[a]ll students at the John
`
`Marshall Law School in Chicago who took an online exam from August 2017 to
`
`August 2019 and who had their facial geometry collected, captured, received, or
`
`otherwise obtained and/or stored by Defendant.” Id. at ¶ 58.
`
` The “UIC John Marshall Subclass,” which consists of “[a]ll students at the UIC
`
`John Marshall Law School who took an online exam from August 2019 to May
`
`2020 and who had their facial geometry collected, captured, received, or otherwise
`
`obtained and/or stored by Defendant.” Id. at ¶ 59.
`
` The “St. George’s Subclass,” which consists of “[a]ll students at the St. George’s
`
`School of Medicine who took an online exam from March 2020 through December
`
`2020 and who had their facial geometry collected, captured, received, or otherwise
`
`obtained and/or stored by Defendant.” Id. at ¶ 60
`
`2
`
`

`

`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 3 of 6 PageID #:3
`
`5.
`
`Plaintiffs allege that the number of persons within the putative class “is substantial,
`
`believed to amount to thousands of persons.” Id. at ¶ 63.
`
`6.
`
`The complaint seeks certification of the putative classes, declaratory relief,
`
`statutory damages of $5,000 for any intentional and reckless violation of BIPA and $1,000 for any
`
`negligent violation of BIPA, injunctive and other equitable relief, reasonable litigation expenses
`
`and attorneys’ fees, and pre- and post-judgment interest. Ex. 2 at 16, 18.
`
`7.
`
`ExamSoft has not yet filed an answer or responsive pleading to the complaint.
`
`II.
`
`JURISDICTIONAL REQUIREMENTS SATISFIED
`
`8.
`
`CAFA sets forth three requirements to invoke federal jurisdiction: (1) a class action
`
`comprising 100 or more members, (2) in which any member of a class of plaintiffs is a citizen of
`
`a state different from any defendant, and (3) in which the amount in controversy exceeds
`
`$5,000,000. 28 U.S.C. § 1332(d)(2), (d)(5). All three requirements are satisfied here.
`
`A. This Case Is A Putative Class Action Comprising At Least 100 Members
`
`9.
`
`The action is a “class action” as defined in 28 U.S.C. § 1332(A)(1)(B) and, as noted
`
`above, Plaintiffs allege that there are “thousands of persons” in the putative classes. Ex. 2 at ¶ 63.
`
`B. Minimal Diversity Exists Pursuant To 28 U.S.C. § 1332(d)(2)(A)
`
`10.
`
`ExamSoft is a Delaware limited liability company with its principal place of
`
`business at 5001 LBJ Freeway, Suite 700, Dallas, Texas, 75244. Ex. 1 at ¶¶ 3-4. For purposes of
`
`minimal diversity under CAFA, ExamSoft is a citizen of Delaware and Texas. 28 U.S.C.
`
`§ 1332(d)(10); see Aliano v. Louisville Distilling Co., LLC, 115 F. Supp. 3d 921, 927 n.3 (N.D. Ill.
`
`2015).
`
`11.
`
`Plaintiffs allege that they and the putative class members are Illinois residents. Ex.
`
`2 at ¶¶ 14-16, 56.
`
`3
`
`

`

`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 4 of 6 PageID #:4
`
`12.
`
`Based on the foregoing, minimal diversity exists because at least one member of
`
`the putative class is a citizen of a different state than ExamSoft. See 28 U.S.C. § 1332(d)(2)(A).
`
`C.
`
`13.
`
`The Amount In Controversy Exceeds $5,000,000
`
`Under CAFA, the claims of the individual class members are aggregated to
`
`determine whether the amount in controversy exceeds the required “sum or value of $5,000,000,
`
`exclusive of interest and costs.” 28 U.S.C. § 1332(d)(2), (d)(6). A party removing under CAFA
`
`need only establish that the amount in controversy exceeds the jurisdictional minimum by a
`
`preponderance of the evidence. See Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 579
`
`(7th Cir. 2017). The question is not whether damages will be greater than $5 million, but only
`
`whether “a fact-finder might conceivably lawfully award” damages greater than $5 million. Id. at
`
`583 (emphasis in original). The removing party’s burden is a mere “pleading requirement, not a
`
`demand for proof.” Blomberg v. Serv. Corp. Int’l, 639 F.3d 761, 763 (7th Cir. 2011).
`
`14. While ExamSoft denies the claims alleged in Plaintiffs’ complaint and further
`
`denies that Plaintiffs, or any putative class member, are entitled to any monetary or other relief, on
`
`a classwide basis or otherwise, the amount in controversy here satisfies the jurisdictional threshold.
`
`Plaintiffs seek statutory damages of up to $5,000 per violation from ExamSoft for each putative
`
`class member (see Ex. 2 at 16, 18), and allege that there are “thousands of persons” in the class.
`
`Id. at ¶ 63. Multiplying $5,000 for each putative class member by just two “thousand[]” putative
`
`class members (the bare minimum putative class size alleged based on Plaintiffs’ allegation that
`
`there are “thousands” of class members) yields an amount in controversy of $10 million—well in
`
`excess of $5 million. And, if the putative class size is larger, as Plaintiffs’ allegation allows, the
`
`amount in controversy would exceed the CAFA threshold by an even wider margin.
`
`4
`
`

`

`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 5 of 6 PageID #:5
`
`15.
`
`Thus, ExamSoft has made a showing that, if Plaintiffs prevail, recovery in this
`
`action “might conceivably” exceed the mandatory minimum threshold for jurisdiction under
`
`CAFA. Roppo, 869 F.3d 583.
`
`16.
`
`Because this is (1) a putative class action comprising 100 or more members, (2) in
`
`which any member of the putative class is a citizen of a state different from the defendant’s state
`
`of citizenship, and (3) the aggregate amount of damages sought is in excess of $5 million, this case
`
`falls within the subject matter jurisdiction of this Court pursuant to 28 U.S.C. § 1332 and is
`
`therefore removable pursuant to 28 U.S.C. § 1441.
`
`III. OTHER STATUTORY REQUIREMENTS FOR REMOVAL ARE SATISFIED
`
`17.
`
`Plaintiffs filed this action in the Circuit Court of Cook County, Illinois. Venue is
`
`proper in the United States District Court for the Northern District of Illinois, Eastern Division,
`
`because it is the “district and division embracing the place where such action is pending.” 28
`
`U.S.C. § 1441(a).
`
`18.
`
`19.
`
`No previous application has been made for the relief requested herein.
`
`As required by 28 U.S.C. § 1446(a), copies of all process and pleadings served upon
`
`ExamSoft are attached as exhibits hereto.
`
`20.
`
`21.
`
`This notice of removal is timely pursuant to 28 U.S.C. § 1446(b)(1).
`
`As required by 28 U.S.C. § 1446(d), ExamSoft will promptly file a copy of this
`
`Notice of Removal with the Circuit Court of Cook County, Illinois, County Department, Chancery
`
`Division and serve copies of the same on all parties to this action.
`
`WHEREFORE, ExamSoft respectfully removes this action from the Circuit Court of Cook
`
`County, Illinois, docketed at 2021-CH-01276, to this Court.
`
`5
`
`

`

`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 6 of 6 PageID #:6
`
`DATED: April 22, 2021
`
`
`
`Respectfully submitted,
`
`By: /s/ Lauren R. Goldman
`
`MAYER BROWN LLP
`Lauren R. Goldman
`1221 Avenue of the Americas
`New York, NY 10020
`Telephone: (212) 506-2647
`lrgoldman@mayerbrown.com
`
`Archis A. Parasharami
`1999 K Street, N.W.
`Washington, DC, 2006
`Telephone: (202) 263-3000
`aparasharami@mayerbrown.com
`
`Matthew D. Provance
`71 S. Wacker Drive
`Chicago, IL 60606
`Telephone: (312) 782-0600
`mprovance@mayerbrown.com
`
`Attorneys for Defendant ExamSoft Worldwide, LLC
`
`6
`
`