Case: 1:21-cv-03229 Document #: 62 Filed: 06/29/22 Page 1 of 8 PageID #:466
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`EMAD KASHKEESH and MICHAEL KOMORSKI,
`individually and on behalf of a class of similarly situated
`individuals,
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`Plaintiffs,
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`21 C 3229
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`Judge Gary Feinerman
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`MEMORANDUM OPINION AND ORDER
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`vs.
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`MICROSOFT CORPORATION,
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`Defendant.
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`Emad Kashkeesh and Michael Komorski brought this putative class action in the Circuit
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`Court of Cook County, Illinois, against Microsoft Corporation, alleging violations of the Illinois
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`Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq. Doc. 1-1. Microsoft
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`removed the suit to federal court, Doc. 1, and Plaintiffs move to remand two of their claims back
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`to state court, Doc. 36. The motion is granted.
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` Background
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`Plaintiffs are former Uber drivers who worked primarily in Chicago. Doc. 28 at ¶¶ 32,
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`38. Upon registering as Uber drivers, each was required to submit his name, vehicle
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`information, driver’s license, and a profile picture to Uber through its mobile application. Id.
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`¶¶ 23, 32, 38. To gain access to Uber’s platform and commence his driving duties, each had to
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`photograph his face in real time through Uber’s “Real Time ID Check” security feature. Id. at
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`¶¶ 33, 39. Unbeknownst to Plaintiffs, their pictures were transferred to Microsoft’s Face
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`Application Programming Interface (“Face API”), which is integrated into Uber’s phone
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`application as a security feature. Id. at ¶¶ 23-25. Microsoft’s Face API collected and analyzed
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`Case: 1:21-cv-03229 Document #: 62 Filed: 06/29/22 Page 2 of 8 PageID #:467
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`Plaintiffs’ facial biometrics to create a “geographic template” that it compared to the geographic
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`template from the original profile picture to verify their identities. Id. at ¶¶ 25-26, 34, 40.
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`Microsoft never obtained Plaintiffs’ written consent to capture, store, or disseminate their
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`facial biometrics. Id. at ¶¶ 28, 35, 41. Microsoft also failed to make a publicly available policy
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`regarding retention and deletion of their biometric information, and it profited from receiving
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`that information. Id. at ¶¶ 29-30, 36, 42.
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`Discussion
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`“The party seeking removal has the burden of establishing federal jurisdiction, and
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`federal courts 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 F.3d 752,
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`758 (7th Cir. 2009). In an uncommon twist on a common theme, Plaintiffs argue that, in light of
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`Bryant v. Compass Group USA, Inc., 958 F.3d 617 (7th Cir. 2020), and Thornley v. Clearview
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`AI, Inc., 984 F.3d 1241 (7th Cir. 2021), they lack Article III standing to pursue in federal court
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`their claims under Sections 15(a) and 15(c) of BIPA, 740 ILCS 14/15(a), (c), requiring the
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`remand of those claims for want of subject matter jurisdiction. Microsoft responds that Plaintiffs
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`have Article III standing because (1) their Section 15(a) claim alleges an “informational injury”
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`sufficient to confer standing under the principles set forth in TransUnion LLC v. Ramirez, 141
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`S. Ct. 2190 (2021), and (2) their Section 15(c) claim alleges the disclosure of private information
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`sufficient to confer standing under the principles set forth in TransUnion and Tims v. Black
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`Horse Carriers, Inc., 184 N.E.3d 466 (Ill. App. 2021), appeal allowed, 184 N.E.3d 1029
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`(Ill. 2022).
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`A federal court has subject matter jurisdiction over a claim only if, among other things,
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`the plaintiff has Article III standing to bring it. See MAO-MSO Recovery II, LLC v. State Farm
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`2
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`Case: 1:21-cv-03229 Document #: 62 Filed: 06/29/22 Page 3 of 8 PageID #:468
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`Mut. Auto. Ins. Co., 935 F.3d 573, 581 (7th Cir. 2019). “[T]he irreducible constitutional
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`minimum of standing consists of three elements. [A] plaintiff must have (1) suffered an injury in
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`fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
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`be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)
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`(citation and internal quotation marks omitted). “To establish injury in fact, a plaintiff must
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`show that he or she suffered an invasion of a legally protected interest that is concrete and
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`particularized and actual or imminent, not conjectural or hypothetical.” Id. at 339 (internal
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`quotation marks omitted).
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`To be concrete, a plaintiff’s injury “must be de facto; that is, it must actually exist,”
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`meaning that it must be “real” and not “abstract.” Ibid. (internal quotation marks omitted). Both
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`“tangible” and “intangible” injuries, even those that are “difficult to prove or measure,” can be
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`concrete. Id. at 341. Concreteness requires at least some “appreciable risk of harm” to the
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`plaintiff. Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724, 727 (7th Cir. 2016); see also
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`Spokeo, 578 U.S. at 342 (holding that an injury is not concrete where the defendant’s conduct
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`does not “cause harm or present any material risk of harm”); Gubala v. Time Warner Cable, Inc.,
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`846 F.3d 909, 911 (7th Cir. 2017) (holding that the plaintiff lacked standing where he identified
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`no “plausible (even if attenuated) risk of harm to himself”).
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`I.
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`Section 15(a) Claim
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`Section 15(a) of BIPA requires “[a] private entity in possession of biometric identifiers or
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`biometric information” to “develop,” “ma[k]e available to the public,” and “comply with” “a
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`retention schedule and guidelines for permanently destroying biometric identifiers and biometric
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`information” at certain junctures. 740 ILCS 14/15(a). In Bryant, the plaintiff alleged that the
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`defendant, in violation of Section 15(a), collected and stored her biometric information—which
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`she provided when using the defendant’s fingerprint-based vending machines—without making
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`“publicly available a retention schedule and guidelines for permanently destroying the biometric
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`identifiers and information it was collecting and storing.” 958 F.3d at 619. Bryant held that the
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`plaintiff lacked standing to bring that claim, reasoning that standing cannot rest on a mere
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`violation of Section 15(a)’s publication duty. See id. at 626. The Seventh Circuit reaffirmed that
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`holding in Fox v. Dakkota Integrated Systems, LLC, 980 F.3d 1146, 1154 (7th Cir. 2020). But
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`Fox proceeded to hold that while “a mere failure to publicly disclose a data-retention policy” is
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`insufficient to confer standing, a failure to “comply with” the policy under Section 15(a) is
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`sufficient. Id. at 1154-55 (first emphasis added).
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`Like the plaintiff in Bryant, and unlike the plaintiff in Fox, Plaintiffs here allege only that
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`Microsoft failed to disclose its retention and destruction policy, not that it failed to comply with
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`that policy. Doc. 28 at ¶¶ 29, 36, 42, 56; Doc. 36 at 6. Under Bryant and Fox, it follows that
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`Plaintiffs lack Article III standing to bring their Section 15(a) claim.
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`Pressing the contrary result, Microsoft argues that TransUnion undermined Bryant.
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`Specifically, Microsoft contends that TransUnion “reaffirmed precedent”—Federal Election
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`Commission v. Akins, 524 U.S. 11, 21 (1998), and Public Citizen v. Department of Justice, 491
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`U.S. 440, 449 (1989)—“holding that ‘downstream consequences’ are not required where, as
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`here, the plaintiff allegedly ‘fails to obtain information which must be publicly disclosure
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`pursuant to a statute.’” Doc. 43 at 10 (quoting Akins, 524 U.S. at 21). But Bryant expressly
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`considered and distinguished Akins and Public Citizen in ruling that a mere failure to comply
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`with Section 15(a)’s disclosure duty does not give rise to Article III standing. See Bryant, 958
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`F.3d at 624-25. That TransUnion reaffirmed Akins and Public Citizen therefore has no impact,
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`one way or the other, on the continued viability of Bryant.
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`Microsoft also contends that TransUnion made clear, contrary to Bryant, that an
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`informational injury can support Article III standing where, as here, the plaintiff alleges “denial
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`of information subject to public-disclosure or sunshine laws that entitle all members of the public
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`to certain information.” TransUnion, 141 S. Ct. at 2214; see Doc. 43 at 7. That contention fails
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`to persuade. As an initial matter, TransUnion “d[id] not involve such a public-disclosure law,”
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`141 S. Ct. at 2214, and thus cannot properly be read to implicitly overrule Bryant’s holding that
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`the mere violation of such a law does not give rise to Article III standing. In any event, the
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`Seventh Circuit adhered to Bryant’s holding in a post-TransUnion opinion that, in fact, cited
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`TransUnion. See Cothron v. White Castle Sys., Inc., 20 F.4th 1156, 1161 (7th Cir. 2021)
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`(holding that a plaintiff alleging a Section 15(d) violation suffered Article III injury, and
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`reasoning that “Section 15(d) is … unlike other sections of [BIPA] that impose duties owed only
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`to the public generally—the violation of which does not, without more, confer standing.”) (citing
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`Bryant, 958 F.3d at 626, for the proposition that “a violation of section 15(a)’s duty to provide a
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`data-retention schedule to the public does not inflict an Article III injury”). From the perspective
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`of a federal district court, Cothron defeats Microsoft’s submission that TransUnion fatally
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`undermines Bryant.
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`Accordingly, Plaintiffs lack Article III standing to pursue their Section 15(a) claim.
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`II.
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`Section 15(c) Claim
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`Section 15(c) of BIPA prohibits private entities in possession of biometric information
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`from “sell[ing], leas[ing], trad[ing], or otherwise profiting from a person’s or customer’s
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`biometric … information.” 740 ILCS 14/15(c). In Thornley, the plaintiffs alleged that the
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`defendant violated Section 15(c) by harvesting their biometric information, placing it on a
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`database, and offering it for sale. See 984 F.3d at 1243. As Thornley understood it, Section
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`15(c) establishes a general regulatory rule, imposing on defendants a duty owed to the public at
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`large “prohibit[ing] the operation of a market in biometric identifiers and information.” Id. at
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`1247. And Thornley held that such a general regulatory rule, like the one imposed by Section
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`15(a), is insufficient to create Article III standing absent an assertion that the plaintiff suffered a
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`particularized injury resulting from the operation of such a market. See ibid. (“It is enough to
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`say that this is the same kind of general regulation as the duty to create and publish a retention
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`and destruction schedule found in section 15(a), at least when the plaintiff asserts no
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`particularized injury resulting from the commercial transaction.”).
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`The Seventh Circuit’s holding in Thornley—that Article III standing cannot rest on a
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`mere violation of Section 15(c)—rests on the premise that Section 15(c) imposes only a “general
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`regulation.” Ibid. But the Appellate Court of Illinois subsequently rejected that premise in Tims,
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`holding that Section 15(c) creates an action “for publication of matter violating the right of
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`privacy.” 184 N.E.3d at 466 (“Section 15(c) … forbids a private party to ‘sell, lease, trade, or
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`otherwise profit from’ biometric data which entails a publication, conveyance, or dissemination
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`of such data.”) (internal citations and quotation marks omitted). That is significant to the Article
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`III inquiry, as the disclosure of private information is a harm “traditionally recognized as
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`providing a basis for lawsuits in American courts,” and therefore one sufficient to predicate
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`Article III standing. TransUnion, 141 S. Ct. at 2204.
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`Thus, the question whether Plaintiffs have Article III standing to pursue their Section
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`15(c) claim in federal court turns on whether, from the perspective of this court, the state
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`appellate court’s decision in Tims undermines the Seventh Circuit’s understanding in Thornley of
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`the nature of a Section 15(c) claim. Under the Seventh Circuit’s view of the Erie doctrine, the
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`answer to that question is no:
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`6
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`A decision by a state’s supreme court terminates that authoritative force of our
`decisions interpreting state law, for under Erie our task in diversity litigation
`is to predict what the state’s highest court will do. Once the state’s highest
`court acts, the need for prediction is past. But decisions of intermediate state
`courts lack similar force; they, too, are just prognostications. They could in
`principle persuade us to reconsider and overrule our precedent; assuredly they
`do not themselves liberate district judges from the force of our decisions.
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`Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004). And because the
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`Seventh Circuit’s understanding of Section 15(c) as imposing a general regulatory rule retains its
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`precedential force notwithstanding the state appellate court’s contrary understanding in Tims,
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`Plaintiffs do not have standing to pursue their Section 15(c) claim in federal court.
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`Conclusion
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`Because Plaintiffs do not have Article III standing to pursue their Section 15(a) and 15(c)
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`claims, their motion to remand those claims is granted. When a case is filed in state court and
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`removed to federal court, and when the federal court finds that it lacks subject matter
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`jurisdiction, the appropriate disposition (with narrow exceptions not pertinent here) is remand to
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`state court under 28 U.S.C. § 1447(c). See Collier v. SP Plus Corp., 889 F.3d 894, 897 (7th Cir.
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`2018) (“[Section] 1447(c) required the district court to remand this case to state court, because it
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`does not satisfy Article III’s requirements.”). Where, as here, the court lacks jurisdiction over
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`only a portion of a suit, it should remand only that portion. See Bergquist v. Mann Bracken,
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`LLP, 592 F.3d 816, 819 (7th Cir. 2010) (“Federal law does not permit a district judge to remand
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`the complete litigation just because portions belong in state court. … If some parts of a single
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`suit are within federal jurisdiction, while others are not, then the federal court must resolve the
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`elements within federal jurisdiction and remand the rest—unless the balance can be handled
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`under the supplemental jurisdiction.”). Accordingly, the Section 15(a) and 15(c) claims are
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`severed under Civil Rule 21 from the rest of the suit and remanded to state court. See Gaffney v.
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`Riverboat Servs. of Ind., Inc., 451 F.3d 424, 443-44 (7th Cir. 2006) (approving severance where
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`“[t]he validity of the claims before us does not depend, as a matter of law, on the outcome of the
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`severed claims”); Hebel v. Ebersole, 543 F.2d 14, 17 (7th Cir. 1976) (approving the severance of
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`“logically separable” claims); Figueroa v. Kronos Inc., 2020 WL 4273995, at *5 (N.D. Ill. July
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`24, 2020). If the Supreme Court of Illinois, whether in the appeal it allowed in Tims or at any
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`other juncture, adopts the state appellate court’s understanding in Tims of the nature of a Section
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`15(c) claim, Microsoft may once again attempt to remove that claim to federal court.
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`June 29, 2022
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`___________________________________
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`United States District Judge
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`8
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