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`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55)(cid:3)(cid:21)(cid:3)
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`

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`12-Persoh Jury
`Return Date: No return date scheduled
`Hearing Date: 7/15/2021 9:30 AM - 9:30 AM
`Courtroom Number: 2308
`Location: District 1 Court
`
`Cook County. lL
`
`FILED 12607838
`3/17/2021 12:37 PM
`IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS ‘RIS Y- MART'NEZ
`COUNTY DEPARTMENT, CHANCERY DIVISION
`C'RCU'T CLERK
`COOK COUNTY, IL
`2021CH01276
`
`2021CH01276
`
`
`
`
`
`FILEDDATE:3/17/20211213’PM
`
`case No. 2021 CH01 276
`
`v.
`
`Plaintiffs,
`
`JURY TRIAL DEMANDED
`
`EXAMSOFT WORLDWIDE, INC..
`
`Defendant.
`
`CLASS ACTION EOMPLAINT
`
`:
`
`Plaintiffs Brittney Frederick, Alexander Pruefer, and Jinger Sanders (“Plaintiffs”) '
`r
`
`individually and on behalf of all other persons similarly situated, by their undersigned attorneys,
`
`as and for their Class Action Complaint for violations of the Illinois Biometric Information Privacy
`
`Act
`
`(“BIPA” , 740 ILCS 14/1 et seq., against Defendant ExamSoft Worldwide,
`
`Inc.,
`
`(“Defendant”), allege on personal knowledge, due investigation of their counsel, and, where
`
`indicated, on information and belief as follows:
`
`NATURE OF TILE ACTION
`
`1.
`
`This is a class action suit brought [against Defendant ExamSoft. (“ExamSoft” or .
`
`“Defendant”) for violations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS
`
`14/1 et seq. Defendant develops, owns, and operates an eponymous online proctoring sofiware i
`
`that collects biometric information.
`
`2.
`
`Plaintiffs bring this action for damages and other legal and equitable remedies
`
`BRITTNEY FREDERICK, ALEXANDER
`PRUEFER, and JINGER SANDERS,
`individually and on behalfofall others
`similarly situated,
`
`resulting from the illegal actions of Defendant in collecting, storing and using their and other
`
`

`

`
`
`
`
`FILEDDATE:3/17/202l12:37PM20210-101276
`
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 3 of 20 PageID #:11
`Case: 1:2l-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 3 of 20 PageID #:11
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`similarly situated individuals’ biometric identifiers1 and biometric infonnation2 (referred to
`
`collectively at times as “biometrics”). Defendant failed to provide the requisite data retention and
`
`deStruction policies to the public, and failed to prbvide Plaintiffs the specific purpose and length
`
`of term for which a biometric identifier or biometric information: was being collected, stored, and
`
`used.
`
`3.
`
`The Illinois Legislature has found that “[b]iometrics are unlike other unique
`
`identifiers that are used to access finances or other Sensitive information.” 740 ILCS l4/5(c). “For
`
`example, social security numbers, when compromised, can be changed. Biometrics, however, are -
`
`biologically unique to the individual; therefore, onqe compromised, the individual has no recourse,
`
`is at heightened risk for identity thefi, and is likely to withdraw from biometric-facilitated
`
`transactions.” 1d.
`
`4.
`
`In recognition of these concerns over the security of individuals’ biometrics the
`
`illinois Legislature enacted BIPA, which provides, inter alia, that a privatc cntity like Defendant
`
`that possesses biometrics must inform individuals in writing of the specific purpose and length of
`
`term for which such biometric identifiers or biometric information are being collected, stored and
`
`used. 7401LCS 14/15(b).
`
`5.
`
`Moreover, entities collecting biometrics must publish publicly available written
`
`retention schedules and guidelines for permanently destroying biometrics collected. See 740 ILCS
`
`14/] 5(a).
`
`-2-
`
`A “biometric identifier” is any personal feature that is unique to an individual, including
`'
`fingerprints, iris scans, DNA and “face geometry”, among others.
`
`“Biometric information” is any information captured, converted, stored or shared based on
`2
`a person’s biometric identifier used to identify an individual.
`
`

`

`
`
`FILECDATE:21171202112:37PM20210-101276
`
`
`
`
`
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`Case: 1:2l-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 4 of 20 PagelD #:12 '
`
`6.
`
`In direct violation of §§ 15(a) and 15(b) of BIPA, Defendant collected, stored and
`
`used—without first publishing sufficiently specific data retention and deletion policies-the.
`
`biometrics of thousands of students who used Defendant’s software to take online exams.
`
`7.
`
`Plaintiffs are students who used ExamSoft. During Plaintiffs’ use ofthc software,
`
`ExamSoft collected their biometrics, including eye movements and facial expressions (129., face
`
`geometry).
`
`8.
`
`Defendant does not sufficiently specify how long it will
`
`retain biometric
`
`
`
`information, or when it will delete such information.
`
`9.
`
`BIPA confers on Plaintiffs and all other similarly situated Illinois residents a right
`
`to know of the risks that are inherently presented by the collection and storage of biometrics, and
`
`a right to know how long such risks will persist after ceasing using Defendant’s software.
`
`IO.
`
`Yet, Defendant failed to provide sufficient data retention or destruction policies to
`
`Plaintiffs Or the Class.
`
`11.
`
`Plaintiffs bring this action to prevent Defendant from further violating the privacy
`
`rights of Illinois residents and to. recover statutory damages for Defendant’s improper and
`
`lackluster collection, storage, and protection of these individuals’ biometrics in violation of BIPA.
`
`JURISDICTION QED VENUE
`
`12.
`
`This Court has personal jurisdiction over Defendant because the biometrics that
`
`give rise to this lawsuit (1) belonged to Illinois residents, and (2) were collected by Defendant at
`
`Illinois schools or from students taking exams in Il‘linnis
`13.
`Venue is proper in this County pursriant to 735 ILCS 5/2-102(a) because Defendant
`does substantial business in this County and a substantial part of the events giving rise to Plaintiffs’
`
`

`

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`
`claims took place within this County because all Plaintiffs’ biometrics were collected in this
`county.
`
`PART ES
`
`
`
`
`
`FILEDDATE:3/17/202112:37PM2-321CHO127E
`
`I4.
`
`Plaintiff Alexander Pruefer is, and has been at all relevant times, a resident of
`
`Chicago, Illinois and has an intent to remain there, and is therefore a domiciliary of Illinois.
`
`IS.
`
`Plaintiff Brittney Frederick is, and has been at all relevant times, a resident of
`
`Chicago, Illinois and has an intent to remain there, and is therefore a domiciliary of Illinois,
`
`16.
`
`Plaintiff linger Sanders is, and has been at all relevant times, a resident of Dolton,
`
`Illinois and has an intent to remain there, and is therefore a domiciliary of Illinois.
`I
`I7.
`Defendant ExamSoft Worldwide Inc. is a Delaware corporation with its principal
`
`place of business at 5001 LBJ Freeway, Suite 700, Dallas, Texas, 75244. Defendant develops,
`
`owns, and operates an online proctoring software of the same name that is used throughout Illinois.
`
`FACTUAL BA KGROUNI)
`
`1.
`
`Illinois’ Biometric Information Privacy Act
`
`18.
`
`The use ot'a biometric scanning system entails serious risks. Unlike other methods
`
`of identification, facial geometry is a permanent, unique biometric identifier associated with an
`
`individual. This exposes individuals to serious and irreversible privacy risks. For example, if a
`
`device or database containing individuals’ facial geometry data is hacked, breached, or otherwise
`
`exposed, individuals have no means by which to prevent identity theft and unauthorized tracking.
`
`l9.
`
`Recognizing the need to protect citizens from these risks, Illinois enacted the
`
`Biometric Information Privacy Act, 740 ILCS 14/], et seq (“RIPA”) in 2008,
`
`to regulate
`
`companies that collect and store biometric information, such as facial geometry. See Illinois House
`
`Transcript, 2008 Reg. Sess. No. 276.
`
`
`
`

`

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`Case: 1:2l-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 6 of 20 PagelD #:14
`
`20.
`
`BIPA requires that a private entity in possession of biometrics:
`
`must develop a written policy, made available to the public, establishing a
`retention schedule and guidelines for [permanently destroying biometric
`identifiers and biometric information when the initial purpose for collecting or
`obtaining such identifiers or information has been satisflcd or within 3 years of
`the individual’s last interaction with the private entity, whichever occurs first.
`
`
`
`
`
`FILEDDATE:3/17/2C2112:37PM2021CH01276'
`
`740 ILCS 14/1 5(a).
`
`fl
`‘1.
`
`Moreover, entities collecting biometrics must inform individuals “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 ILCS 14/ 115(b)(2).
`
`22.
`
`As alleged below, Defendant violated BIPA §§ 15(a) and 15(b) by failing to specify
`
`the length of time that it would retain biometrics, or provide a deletion schedule for biometric
`
`information.
`
`11.
`
`Defendant Violates Illinois’ Biometric Information Privacy Act
`
`'23.
`
`24.
`
`Defendant develops, owns, and operates an eponymous onlinc proctoring software.
`
`One of the ways in which ExamSoft monitors students is by collecting and
`
`monitoring their facial geometry. According to its advertising materials, ExamSoft uses “a two-
`
`step authentication process—usemame/password and facial idcntifiCalion analysis—minimizing
`
`the opportunity for exam-taker impersonation.”
`
`In a brochure for its authentication system,
`
`ExamSoft states that “[e]xam-takers establish a ‘baseline’ of authentication” that is later verified
`
`using “facial identification analysis via their device’s wcbcam.”
`
`25.
`Moreover, anmSoft’s proctoriug “captures a continuous audio and video
`recording of the exam-taker using both screen caprure.” After a student uploads an exam, “[a]n
`A.I. system analyzes the audio and video recording and identifies any abnormalities in student
`
`behavior based on movement, gaze, and background noise."
`
`
`
`

`

`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 7 of 20 PageID #:15
`.Case: 1:2l-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 7 of 20 PagelD #:15
`
`
`
`
`
`FILEDDATE:3117/23211223?PM2021CH01276
`
`26.
`
`Indeed, Defendant’s Privacy Policy notes that “ExamSoft may collect, store, use
`
`and retain ‘biometric identifiers[,]”’ which it defines as “a retina or iris scan, fingerprint,
`
`voiceprint, or scan of hand or face geometry.”
`
`27.
`
`Defendant’s Privacy Policy also states that “ExamSofi needs to collect certain data
`
`(including biometric data) from an exam taker to verify the exam taker’s identity and monitor and
`
`detect
`
`irregular behavior during assessments.” To capture students’ biometrics, Defendant
`
`requires students to take a photo as “baseline” for their appearance before students begin an exam:
`
`-) c w I mewtpuenw-m.m-wemmw
`€-
`“Mr.“ -- -
`‘7.malmflhowfloumretoukewumlnem make we Ihaimwebcunhmcmreuandisaighedbra _
`wayn-amvhwolmmywuaywaeuufi
`vouulsomayountodngmcamera.an¢remmsmthn
`you‘re ready sebdmeumn button “Emudy
`ukeyouphow
`w‘
`
`..
`
`...._
`
`n- -——..
`
`
`
`-6-
`
`o )‘Mumeramis'on.
`. AI (habpnmiesaun isa ram-down menu that is
`mofead Ywmugflnudtoadpnlywmbonor
`
`Comm-n to enter the exam
`8. Stan the exam Felon the onscreen mimetic-ms and
`as you take If: w, you nigh: mm rm Indicators 0: mm;
`
`..
`_
`led Monitoring, liven sdccnhe Monitoring mJoc-‘ltsu vaml‘rfe
`emanate Yodoulhecmauav‘wcnmtabugah.
`
`28.
`
`By using its
`
`facial
`
`recognition software, ExamSoft can check for “any
`
`abnormalities.” For instance, if a student looks down from their computer screen into their lap
`
`(e.g., because a student is looking up an answer on her or her phone), ExamSoft will detect this
`
`facial movement and record it as a possible instance of cheating.
`
`

`

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`
`29.
`
`Defendant uses biometrics to create an identity profile for students and to confirm
`
`students’ identities during testing so as to prevent cheating.
`
`30.
`
`Online proctoring companies like Defendant have seen a significant uptick in light
`
`of the COVID-19 pandemic, which has caused institutions to move exams online. This has led to
`
`significant privacy implications for students.
`
`31.
`
`For instance, some students taking the Bar Exam were forced to urinate while being
`
`monitored, because if they “broke eye contact,” their exams would be terminated.3
`
`32.
`
`Other students have broken down in tears during exams, recorded on video by
`
`
`
`
`
`FILEDDATE:3117/202112:37PM2021CH01276
`
`
`
`
`online proctoring companies.4
`
`33.
`
`Students have also published numerous petitions across the country to ask school
`
`administrators to cease using online proctoring toolls.5
`
`34.
`
`Defendant has been in the crosshalrs of this debate. On December 6, 2020, six
`
`United States Senators penned a letter to ExamSofi expressing concern far “the privacy,
`
`accessibility, and equity of students and professionals using your testing software, ExamSof’t."6
`
`The Senators observed that “questions remain about where and how this data is being used before,
`
`during, and after tests, by both your company, the virtual proctors, and testing administrators.”
`
`3 Staci Zaretskym Law Students Forced To Urinate While Being Watched By Proctors During
`Remote Ethics Exam, ABOVE THE LAW, Aug. 18,, 2020, httpszllabovethelaw.com/2020/O8/law-
`students-forced-to-urinate-while-being-watched-by-proctors-during-remote-ethics-exam/.
`
`4 Thomas Germain, Poor Security at Online Proctoring Company May Have Put Student Data at
`Risk, CONSUMER REPORTS, Dec. 10, 2020, htt s://www.consumerreports.org/digital—security/
`. poor-security-at-online-proctoring-company-proct
`
`Ilyrtraclc-may-have-[mt-student data-at-riskl.
`5 Jason Kelley, StudentsAre Pushing BackAgar)? ProctoringSurveillance Apps, ELECTRONIC
`
`FRONTIER FOUNDATION, Sept. 25, 2020, https: Iwww.eff.org/deeplinks/2020/09/students-are-
`pushing-back-against-proctoring-surveillance-app .
`6 Richard Blumenthal, et al., Letter to ExamSofi( cc. 3, 2020), https://www.blumenthal.senate
`.gov/imo/mcdia/doc/ZOZO.12.3%20Letter%20to% 0Ed%20Testing%20$oftware%20Companies
`%20EXamSoft.pdf
`
`

`

`
`
`
`
`FILEDDATE:3I17l202112:37PM2021CHC1276
`
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 9 of 20 PageID #:17
`Case: 1:2l-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 9 of 20 PageID #:17
`
`35.
`
`These concerns were warranted. As the Supreme Court of California noted,
`
`“ExamSoft’s Privacy Policy appears to permit the company to use and disclose applicants’ data
`
`for many purposes, some of which appear to be unrelated to the administration of the exam.”7
`
`ExamSoft’s Privacy Policy vaguely states it retains “this information only for so long as required
`
`to provide the service, but in any event only for so long as required by the institution that is using
`
`the applicable ExamSoft product, or failing instruction from the client, so long as the client account
`
`is maintained.” This policy fails to adequately articulate how long ExamSoft will remain in
`
`possession of Plaintiffs and putative class members’ biometric information. This policy also fails
`
`to include a section on the deletion of biometric information, and fails to articulate a maximum
`
`time limit on how long it retains biometrics.
`
`36.
`
`ExamSofi’s consent form at the time of test administration is no more specific. For
`
`example, an ExamlD Consent featured in an ExamSoft tutorial merely states it will “retain the
`
`biometric Data only for so long as required by the examination giver.”8 Like its Privacy Policy,
`
`ExamSoft’s consent form gives Plaintiffs no ability to determine how long ExamSofi will remain
`
`in possession of their biometric information.
`
`37.
`
`Upon information and belief, ExamSofi's Privacy Policy, consent form, and actual
`
`data retention policies are the same and/or substantially similar, regardless of which school class
`members attended, or which test a class member took, when using Defendant’s services.
`
`38.
`
`Upon information and belief, ExamSoft continues to retain Plaintif s’ biometrics
`
`
`
`beyond the intended purpose for collection.
`
`
`
`7 Supreme Court of California, Letter to Sean M. SeLegue (Sept. 25, 2020) httpszl/mmv.courts.
`ca.gov/documents/9252020_ltr_selegue_copy.pdf.
`
`8 https://examsoft.force.com/etcommunity/s/article/ExamlD-and-ExamMonitor-from-the-
`Student-Perspective.
`
`

`

`
`
`
`
`FILEDDATE:3117/202'12:37PM2021CH01276
`
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 10 of 20 PageID #:18
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 10 of 20 PageID #:18
`
`39.
`
`In direct violation of BIPA § 15(b)(2), from at least approximately March 2020
`
`through present, Defendant never informed Illinois students who had their facial geometry
`
`collected of the specific length of time for which tlheir biometric identifiers or information would
`
`be collected, stored and used.
`
`40.
`
`In direct violation of ,8 l5(a) of BIPA, from at least approximately Match 2020
`
`through present, Defendant did not have written, publicly available policies identifying its
`
`retention schedules or guidelines.
`
`III.
`
`Experience of Plaintiff Brittany Frederick
`
`41.
`
`Plaintiff Brittany Frederick is an Illinois domiciliary. Plaintiff Frederick used
`
`ExamSoft to take the Illinois Bar Exam in October 2020.
`
`42.
`
`When Plaintiff Frederick used ExamSoft. her facial geometry, including her eye
`
`movements and facial expressions, was collected by Defendant.
`
`43. When Plaintiff Frederick logged onto ExamSofi, her facial gchetry wnuld be
`
`matched up to the biometrics she provided to Defendant to ensure she was the individual who was
`
`supposed to be taking an exam.
`
`
`
`44.
`
`Defendant did not inform Plaintiff Frederick of the specific length of time that it
`
`intended to collect, store, and use her biometrics, nor did Defendant provide Plaintiff Frederick
`
`with a retention schedule and guidelines for permanently destroying her biometrics.
`
`45.
`
`Thus, when Plaintiff Frederick provided her biometrics to Defendant, Defendant
`
`deflected said biometrics in violation of BIPA §§ risen) and 15(b).
`IV.
`Experience of Plaintiff Alexander Pruefdr
`
`46.
`
`Plaintiff Pruefer is an Illinois domiciliary. Plaintiff Pruefer used ExamSoft to take
`
`his exams while enrolled at the John Marshall Law School in Chicago, from August 2017 to
`
`

`

`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 11 of 20 PageID #:19
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 11 of 20 PageID #:19 '
`
`August 2019.
`
`'l‘he John Marshall Law School merged with the University of Illinois at Chicago
`
`in August 2019, becoming the UIC John Marshall Law School. Plaintiff Pruefer continued his
`
`enrollment at UIC John Marshall Law School and used ExamSofi to take his exams, from August
`
`2019 to May of2020.
`
`47.
`
`When Plaintiff Pruefer used ExamSofi, his facial geometry, including his eye
`
`movements and facial expressions, was collected by Defendant.
`
`48.
`
`When Plaintiff Pruefer logged onto ExamSofi, his facial geometry would be
`
`matched up to the biometrics he provided to Defendant to ensure he was the individual who was
`
`
`
`
`
`FlLEDDATE:3/17/23211237PM2021CH01276
`
`
`
`supposed to be taking an exam.
`
`49.
`
`Defendant did not inform Plaintiff Pruefer of the specific length of time that it
`
`intended to collect, store, and use his biometrics, nor did Defendant provide Plaintiff Pruefer with
`
`a retention schedule and guidelines for permanently destroying his biometrics.
`
`50.
`
`Thus, when Plaintiff Pruefer provided his biometrics to Defendant, Defendant
`
`collected said biometrics in violation of BlPA §§ 15(a) and 15(b).
`
`V.
`
`Experience of Plaintiff Jinger Sanders
`
`51.
`
`Plaintiff Sanders is an Illinois domiciliary. Plaintiff Sanders used ExamSofi to take
`
`her exams at St. George’s School of Medicine from September 2019 to December 2020. From
`
`March 2020 to December 2020, Plaintiff Sanders used the proctored version of ExamSoft.
`
`52.
`
`When Plaintiff Sanders used ExamSofi, her facial geometry, including her eye
`
`movements and facial expressions, was collected by Defendant.
`
`53. When Plaintiff Sanders logged 0th ExamSoft, her facial geometry would be
`
`matched up to the biometrics she provided to Defendant to ensure she was the individual who was
`
`, supposed to be taking an cxam.
`
`

`

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`54.
`
`Defendant did not inform Plaintiff Sanders of the specific length of time that it
`
`intended to collect, store, and use her biometrics, nor did Defendant provide Plaintiff Sanders with
`
`a retention schedule and guidelines for permanently destroying her biometrics.
`
`55.
`
`Thus, when Plaintiff Sanders provided her biometrics to Defendant, Defendant
`
`collected said biometrics in violation of BIPA §§ 15(a) and 15(b).
`
`CLASS ALLEGATIONS
`
`56.
`
`Class Definition: Plaintiffs seek to represent a class of similarly situated
`
`individuals defined as all Illinois residents who used ExamSoft to take an exam online and who
`
`
`
`
`
`FILEDCATE:3/17/202112:37PM2021CHIJ1276
`
`
`
`had their facial geometry or other biometric inforrnation collected, captured, received, or
`
`otherwise obtained and/or stored by Defendant (the “Class”).
`
`57.
`
`Plaintiff Frederick also seeks to represent a subclass of similarly situated
`
`individuals, defined as follows (the “Bar Exam Subclass”):
`
`All 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.
`
`58.
`
`Plaintiff Pruefer seeks to represent a class of similarly situated individuals,
`
`defined as follows (the “John Marshall Subclass"):
`
`,
`‘-
`
`59.
`
`All 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.
`
`Plaintiff Pruefer seeks to represent a class of similarly situated individuals,
`
`defined as follows (the “UlC John Marshall Subclass”).
`
`All students at the UIC John Marshfill Law School who took an unline
`exam from Angust 2019 to May 202 and who had their facial geometry
`collected, captured, received, or otherwise obtained and/or stored by
`Defendant.
`
`

`

`
`
`
`
`FILEDDATE:3/17/202112:37PM2(21CH01276
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`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 13 of 20 PageID #:21
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 13 of 20 PageID #:21
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`60.
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`Plaintiff Sanders seeks to represent] a class of similarly situated individuals,
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`defined as follows (the “St. George’s Subclass”):
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`All 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.
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`61.
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`Collectively, the Class, the Bar Exam Subclass, the John Marshall Subclass, and
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`the St. George’s Subclass shall be known as the “Classes.”
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`62.
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`Subject
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`to additional
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`information obtained through further investigation and
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`discovery, the above-described Classes may be modified or narrowed as appropriate, including
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`through the use of multi-state subclasses.
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`63.
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`Numerosity: Pursuant to 735 ILCS 50-8010), the number of persons within the
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`Class is substantial, believed to amount to thousands of persons. At this time, Plaintiffs do not
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`know the exact number of members of the aforementioned Classes. However, given thc size of
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`Defendant’s business and the number of students who took the Bar Exam or online exams at the
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`John Marshall Law School in Chicago or St. George’s School of Medicine, the number of persons
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`within the Classes is believed to be so numerous that joinder of all members is impractical.
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`Accordingly, utilization of the class action mechanism is the most economically feasible means of
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`determining and adjudicating the merits of this litigation. Moreover, the Class is ascertainable and
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`identifiable from Defendant’s records.
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`64.
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`Commonality and Predominance: Pursuant to 735 lLCS 5/2-801(2), there is a
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`well-defined community of interest in the quesiions of law and fact involved in this case.
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`Questions of law and fact common to the members of the Classes that predominate over questions
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`that may affect individual members of the Classes include:
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`-12..
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`

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`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 14 of 20 PagelD #:22
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`FILEDDATE:3/17’202112:37PM2021CH01276
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`65.
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`(a) whether Defendant collected or otherwise obtained Plaintiffs’ and the
`Classes’ biometric identifiers and/or biometric information;
`
`(b) whether Defendant developed a written policy, made available to the
`public, establishing a retention schedule and guidelines for permanently
`destroying biometric identifiers and biometric information when the
`initial purpose for collecting or obtaining such identifiers or infom'iation
`has been satisfied or within 3 years of their last interactiou. whichever
`occurs first;
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`(c) whether Defendant destroyed Plaintiffs’ and the Classes’ biometric
`identifiers and/or biometric information once that information was no
`longer needed for the purpose for which it was originally collected;
`
`(d) whether Defendant properly informed Plaintiff and the Class that it
`collected, used, and stored their biometric identifiers and/or biometric
`information; and
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`(e) whether Defendant’s violations ofBIPA were committed intentionally,
`recklessly, or negligently.
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`Typicality: Plaintiffs claims are typical of those ot'thc Classes because Plaintiffs.
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`
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`like all members of the Classes, used ExamSoft to take an online exam. and had their biometrics
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`recorded and improperly stored by Defendant in violation of BIPA.
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`66.
`Adequate Representation: Plaintiffs have retained and are represented by
`qualified and competent counsel who are highly experienced in complex consumer class action
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`litigation. Plaintiffs and their counsel are committed to vigorously prosecuting this class action.
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`Moreover, Plaintiffs are able to fairly and adequately represent and protect the interests of the
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`Classes. Neither Plaintiffs nor their counsel have any interest adverse to, or in conflict with, the
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`interests of the absent members of the Classes. Pla ntiffs have raised viable statutory claims or the
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`type reasonably expected to be raised by members fthe Classes, and will vigorously pursue those
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`claims. lfnecessary, Plaintiffs may seek leave of this Court to amend this Class Action Complaint
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`to include additional representatives to represent the Classes, additional claims as may be
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`appropriate, or to amend the definition of the Classes to address any steps that Defendant took.
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`-13..
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`

`

`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 15 of 20 PageID #:23
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 15 of 20 PageID #:23
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`FILEDDATE:3117202112:37PM2021CH01276
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`67.
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`‘ Superiority: A class action is superior to other available methods for the fair and
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`efficient adjudication ofthis controversy because individual litigation ofthe claims of all members
`
`of the Classes is impracticable. Even if every member of the Classes could afford to pursue
`
`individual litigation, the Court System could not. It would be unduly burdensome to the courts in
`which individual litigation of numerous cases would proceed. Individualized litigation would also
`
`present the potential for varying, inconsistent or contradictory judgments, and would magnify the
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`delay and expense to all parties and to the court system resulting from multiple trials of the same
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`factual issues. By contrast, the maintenance of this action as a class action, with respect to smite.
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`or all ofthe issues presented herein, presents few management difficulties, conserves the resources
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`of the parties and of the court system and protects the rights of each member of the Classes.
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`Plaintiffs anticipate no difficulty in the management of this action as a class action. Class-wide
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`relief is essential to compliance with BIPA.
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`COUNT I —- FOR DAMAGES AGAIN ST DEFENDANT
`VIOLATION OF 750 ILCS 14/1511”
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`Plaintiffs incorporate the foregoing allegatiOns as if fully set forth herein.
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`Plaintiffs bring this claim individually and on behalf of the members of the
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`68.
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`69.
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`
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`proposed Classes against Defendant.
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`70.
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`EPA mandates that companies in possession of biometric data establish and
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`maintain a satisfactory biometric data retention — and, importantly, deletion — policy. Specifically,
`
`those companies must: (i) make publicly available a written policy establishing a retention
`. schedule and guidelines for permanent deletion oi biometric data (at most three years after the
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`company’s last interaction with the individual); and (ii) actually adhere to that retention schedule
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`and actually delete the biometric information. See 740 ILCS 14/l 5(a).
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`7].
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`Defendant failed to comply with these BIPA mandates.
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`

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`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 16 of 20 PageID #:24
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`72.
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`Defendant is a corporation and does business in Illinois and thus qualifies as a
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`“private entity” under BIPA. See 740 ILCS 14/10.
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`73.
`Plaintiffs are individuals who their “biometric identifiers" captured and/or collected
`by Defendant, as explained in detail in above. See 740 ILCS 14/10.
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`74.
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`Plaintiffs’ biometric identifiers were used to identify Plaintiffs and, therefore,
`
`constitute “biometric information” as defined by BIPA. See 740 ILCS 14/10.
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`75.
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`Defendant failed to provide a publicly available retention schedule or guidelines
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`for permanently destroying biometric identifiers and biometric information as specified by BIPA.
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`H01276A
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`lLEDDATE:3117/202112:37PM2021-...
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`-15-
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`See 740 ILCS l4/15(a).
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`76.
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`Defendant lacked retention schedules and guidelines for permanently destroying
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`Plaintiffs’ and the Classes’ biometric data. As such, the only reasonable conclusion is that
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`Defendant has not, and will not, destroy Plaintiffs’ and the Classes’ biometric data when the initial
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`purpose for collecting or obtaining such data has been satisfied.
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`77.
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`On behalf of themselves and the Classes, Plaintiffs seek: (l) declaratory relief; (2)
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`injunctive and equitable relief as is necessary to protect the interests of Plaintiffs and the Classes
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`by requiring Defendant to comply with BIPA’s requirements for the collection, capture, storage,
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`and use of biometric identifiers and biometric information as described herein: ('3) statutory
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`damages of $5,000 for each intentional and/or reckless violation of BIPA pursuant to 740 ILCS
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`l4/20(2) or, in the alternative, statutory damages of $1,000 for each negligent violation of BIPA
`
`pursuant to 740 ILCS 14/200); and (4) reasonable attomeys’ fees and costs and other litigation
`
`expenses pursuant to 740 ILCS 14/20(3).
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`PRAYER F0 RELIEF
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`

`

`8401276
`
`2021
`
`
`
`
`
`FILEDDATE:3/17/202112:37PM
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`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 17 of 20 PageID #:25
`Case: 1:21-cv-02190 Document #: 1-2 Filed: 04/22/21 Page 17 of 20 PagelD #:25
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`WHEREFORE, Plaintiffs on behalf of themselves and the proposed Class, respectfully
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`requests that this Court enter an Order:
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`Certifying this case as a class action on behalf of the Classes defined above,
`appointing Plaintiffs as representative of the Classes, and appointing their counsel
`as Class Counsel;
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`Declaring that Dcfcndants’ actions, as set out above, violate BIPA, 740 ILCS
`14/15(a), et seq.;
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`Awarding statutory damages of $5,000.00 for each and every intentional and/or
`reckless violation of BIPA pursuant to 740 ILCS l4/20(2), or alternatively,
`statutory damages of $1,000.00 for each and every violation pursuant to 740 ILCS
`l4/20(1) if the Court finds that Deflendants’ violations were negligent;
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`Awarding injunctive and other equitable relief as is necessary to protect the
`interests ofthe Class, including, inter alia, an Order requiring Defendants to collect,
`store, and use biometric identifiers and/or biometric information in compliance
`with BIPA;
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`Awarding Plaintiffs and the Classes their reasonable attomeys’ fees and costs and
`other litigation expenses pursuant to 740 ILCS l4/20(3);
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`Awarding Plaintiffs and thc Classes pre- and post-judgment interest, to the extent
`allowable; and
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`Awarding such other and further relief as equity and justice ma