Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 1 of 22 PageID #:478
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`EMAD KASHKEESH and MICHAEL
`KOMORSKI, individually and on
`behalf of similarly situated individuals,
`
`
`
`Plaintiffs,
`
`v.
`
`MICROSOFT CORPORATION, a
`Washington corporation,
`
`Defendant.
`
`
`
`Case No. 1:21-cv-03229
`
`Judge:
`
`Hon. Gary S. Feinerman
`
`MEMORANDUM OF LAW IN SUPPORT OF MICROSOFT CORPORATION’S
`RENEWED MOTION TO DISMISS THE SECOND AMENDED COMPLAINT FOR
`LACK OF PERSONAL JURISDICTION
`
`
`
`

`

`Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 2 of 22 PageID #:479
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`TABLE OF CONTENTS
`
`
`Page
`
`
`I.
`II.
`
`INTRODUCTION ............................................................................................................. 1
`FACTUAL BACKGROUND ............................................................................................ 2
`A.
`Microsoft, Uber, and the Microsoft-Uber Licensing Agreements ......................... 2
`B.
`Plaintiffs, Causes of Action, and Procedural History ............................................ 3
`LEGAL STANDARD ........................................................................................................ 4
`III.
`IV. ARGUMENT ..................................................................................................................... 4
`1.
`This Court Lacks General Jurisdiction over Microsoft.............................. 5
`2.
`This Court Also Lacks Specific Jurisdiction over Microsoft. .................... 5
`CONCLUSION ................................................................................................................ 15
`
`V.
`
`
`
`i
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`

`

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`Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 3 of 22 PageID #:480
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc.,
`751 F.3d 796 (7th Cir. 2014) .................................................................................................6, 7
`
`be2 LLC v. Ivanov,
`642 F.3d 555 (7th Cir. 2011) ...............................................................................................7, 14
`
`BNSF Ry. Co. v. Tyrrell,
`137 S. Ct. 1549 (2017) ...............................................................................................................5
`
`Bray v. Lathem Time Co.,
`2020 WL 1492742 (C.D. Ill. 2020).................................................................................. passim
`
`Bristol-Myers Squibb Co. v. Superior Ct.,
`137 S. Ct. 1773 (2017) ...............................................................................................................6
`
`Brook v. McCormley,
`873 F.3d 549 (7th Cir. 2017) .....................................................................................................5
`
`Chamberlain Grp., Inc. v. Techtronic Indus. Co.,
`2017 WL 3394741 (N.D. Ill. 2017) .........................................................................................13
`
`Crumpton v. Haemonetics Corp.,
`2022 WL 952744 (N.D. Ill. 2022) .....................................................................................11, 12
`
`Daimler AG v. Bauman,
`571 U.S. 117 (2014) ...............................................................................................................4, 5
`
`Felland v. Clifton,
`682 F.3d 665 (7th. Cir 2012) .....................................................................................................6
`
`Ford Motor Co. v. Montana Eighth Jud. Dist. Ct.,
`141 S. Ct. 1017 (2021) .............................................................................................................15
`
`Goodyear Dunlop Tires Operations, S.A. v. Brown,
`564 U.S. 915 (2011) ...................................................................................................................4
`
`Gullen v. Facebook.com, Inc.,
`2016 WL 245910 (N.D. Ill. 2016) .............................................................................................8
`
`Illinois v. Hemi Group, LLC,
`622 F.3d 754 (7th Cir. 2010) .....................................................................................................7
`
`Int’l Shoe Co. v. State of Wash., Off. Of Unemployment Comp. & Placement,
`326 U.S. 310 (1945) ...................................................................................................................4
`
`ii
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`

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`Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 4 of 22 PageID #:481
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`
`
`King v. PeopleNet Corp.,
`2021 WL 5006692 (N.D. Ill. 2021) .............................................................................10, 11, 12
`
`McGoveran v. Amazon Web Servs., Inc.,
`488 F. Supp. 3d 714 (S.D. Ill. 2020) ................................................................................ passim
`
`Mitek Corp. v. Diedrich,
`2018 WL 5078385 (N.D. Ill. 2018) .............................................................................4, 6, 7, 10
`
`Mutnick v. Clearview AI, Inc.,
`2020 WL 4676667 (N.D. Ill. 2020) .........................................................................................11
`
`My Own Meals, Inc. v. PurFoods, LLC,
`2022 WL 2132729 (N.D. Ill. 2022) ...........................................................................................6
`
`N. Grain Mktg., LLC v. Greving,
`743 F.3d 487 (7th Cir. 2014) .................................................................................................4, 6
`
`Norberg v. Shutterfly, Inc.,
`152 F. Supp. 3d 1103 (N.D. Ill. 2015) .........................................................................10, 11, 12
`
`Philos Techs., Inc. v. Philos & D, Inc.,
`802 F.3d 905 (7th Cir. 2015) .....................................................................................................7
`
`Purdue Rsch. Found. v. Sanofi-Synthelabo, S.A.,
`338 F.3d 773 (7th Cir. 2003) .....................................................................................................4
`
`Salkauskaite v. Sephora USA, Inc.,
`2020 WL 2796122 (N.D. Ill. 2020) ................................................................................. passim
`
`Stein v. Clarifai, Inc.,
`2021 WL 1020997 (N.D. Ill. 2021) ...........................................................................................6
`
`Stein v. Clarifai, Inc.,
`526 F. Supp. 3d 339 (N.D. Ill. 2021) .........................................................................................8
`
`Tamburo v. Dworkin,
`601 F.3d 693 (7th Cir. 2010) .....................................................................................................5
`
`uBID, Inc. v. GoDaddy Grp., Inc.,
`623 F.3d 421 (7th Cir. 2010) .............................................................................................13, 14
`
`Walden v. Fiore,
`571 U.S. 277 (2014) ...................................................................................................................6
`
`Statutes
`
`Illinois Biometric Information Privacy Act §§ 15(a)-(d), 740 ILCS 14/1 ...............................4, 6, 7
`
`iii
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`

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`
`
`Other Authorities
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`Fed. R. Civ. Proc. 12(b)(2) ..........................................................................................................2, 4
`
`Form 10-K, UBER TECHNOLOGIES, INC., https://tinyurl.com/2tjauu3n .............................2, 10
`
`St. Louis Fed. Economic Data, Gross Domestic Product: All Industry Total in
`Illinois, https://tinyurl.com/3abadbyk ......................................................................................15
`
`St. Louis Fed., Economic Data, Gross Domestic Product,
`https://tinyurl.com/mrm9urr4...................................................................................................15
`
`U.S. Census Bureau, State Population Totals and Components of Change: 2020-
`2021, https://tinyurl.com/yc7y3ksr ..........................................................................................15
`
`iv
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`Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 6 of 22 PageID #:483
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`INTRODUCTION
`
`
`
`I.
`
`Plaintiffs’ theory of personal jurisdiction is astounding in its breadth. According to
`
`Plaintiffs, Microsoft—a Washington corporation, headquartered in Washington—may be haled
`
`into court in Illinois not because of any action it took to target Illinois, but solely because one of
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`its customers (Uber) made the independent decision to use Microsoft’s Face API application to
`
`process images of Illinois residents. That theory not only runs directly contrary to the applicable
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`caselaw—which holds, time and again, that an out-of-state technology provider is not subject to
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`personal jurisdiction simply because one of its customers decides to use its technology in
`
`connection with Illinois—but is also fundamentally unfair—allowing defendants to be sued in
`
`forums that they themselves took no action to target or avail themselves of.
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`No doubt realizing their core theory’s fundamental failings, Plaintiffs throw out an
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`ostensibly more limited fallback theory: that Microsoft is subject to personal jurisdiction because
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`it “knew that its Face API technology would be deployed in Illinois,” since it licensed Face API
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`for use throughout the United States and “Uber’s application is used by drivers in all 50 states.”
`
`ECF No. 28, SAC ¶ 27; see also ECF No. 35 at 5. But that fallback theory is hardly narrower
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`than their primary one: Anytime a technology provider grants a nationwide license to a
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`customer, it necessarily knows that the customer may use its technology in any and all states,
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`including Illinois. Unsurprisingly, the caselaw refutes that fallback theory too, for exactly the
`
`same reason it refutes Plaintiffs’ primary theory: Specific jurisdiction exists only when a
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`defendant itself acts to take advantage of a state’s laws or market, and hence takes on the
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`corresponding obligation to appear in that state’s courts for claims arising out of that act.
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`Accordingly, whether Microsoft knew or expected that some other entity (i.e., Uber) would act to
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`target Illinois by deploying Face API in Illinois is irrelevant; the question is always whether the
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`defendant targeted the forum state by its own actions and thereby subjected itself to jurisdiction
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`1
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`

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`
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`there. And indeed, jurisdictional discovery has confirmed Plaintiffs’ fallback theory is factually
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`wrong as well—as Face API was never once “deployed in Illinois” under Microsoft’s contract
`
`with Uber, but rather at all times was deployed at Microsoft datacenters located outside Illinois
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`in response to calls from Uber that were likewise made from outside Illinois.
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`After two amendments, three complaints, and eight months of jurisdictional discovery,
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`Plaintiffs are still unable to establish conduct by Microsoft sufficient to subject it to personal
`
`jurisdiction in Illinois. The Court should dismiss the SAC under Rule 12(b)(2).
`
`II.
`
`FACTUAL BACKGROUND
`A. Microsoft, Uber, and the Microsoft-Uber Licensing Agreements
`
`Microsoft is a Washington corporation with its principal place of business in Washington.
`
`SAC ¶ 5; Declaration of Waldo Kuipers (“Kuipers Decl.”) ¶ 3. Microsoft developed its Face
`
`API facial recognition technology outside Illinois, and the Microsoft team responsible for it is
`
`also located outside Illinois. Declaration of Greg Clark dated Oct. 18, 2021 (“Oct. 18 Clark
`
`Decl.”) ¶ 3. Microsoft licensed the use of Face API to Uber, a Delaware corporation with its
`
`principal place of business in San Francisco, California. Kuipers Decl. ¶¶ 4, 6, 9; SAC ¶¶ 20, 24;
`
`Form 10-K, UBER TECHNOLOGIES, INC., https://tinyurl.com/2tjauu3n. Microsoft and Uber
`
`employees based in Washington and California negotiated and executed the agreements by
`
`which Microsoft licensed the use of Face API to Uber. Kuipers Decl. ¶¶ 5, 7.
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`Uber’s “Real-Time ID Check” “prompts drivers on the Uber platform to share a selfie
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`before going online to help ensure the driver using the app matches the approved individual
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`[Uber has] on file as the account holder.” Declaration of Shimul Sachdeva dated Oct. 12, 2021
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`(“Oct. 12 Sachdeva Decl.”) ¶ 3. The version of Real-Time ID Check relevant here “works as
`
`follows: through its Real-Time ID Check, Uber obtains a photo from the driver to be compared
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`against a photo that Uber has on file for the driver; Uber’s Real-Time ID Check then sends API
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`2
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`
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`calls to a Microsoft server (an API call is a means by which two applications can communicate
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`with each other) with both photos; Face API then returns to Uber a prediction whether the two
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`photos are likely of the same person.” Oct. 18 Clark Decl. ¶ 5.
`
`Under its license agreements with Uber, Microsoft has no control over where in the
`
`United States Uber uses Real-Time ID Check. Kuipers Decl. ¶ 8. Thus, Uber—not Microsoft—
`
`decides whether Uber uses Real-Time ID Check in Illinois. Microsoft also has no interaction
`
`with Uber drivers. Oct. 18 Clark Decl. ¶ 7. Rather, Microsoft’s interactions are with Uber, as it
`
`is Uber (not the drivers) who sends the API calls, id. ¶¶ 7, 9. When Uber makes Face API calls,
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`Microsoft does not have access to data showing where these drivers are located or who they are.
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`Id. ¶ 8. Moreover, Uber sends these Face API calls to Microsoft from outside Illinois, regardless
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`the driver’s location. Id. ¶ 9; Declaration of Shimul Sachdeva dated Aug. 26, 2021 (“Aug. 26
`
`Sachdeva Decl.”) ¶ 19. Microsoft, in turn, receives, processes, and returns those calls all in and
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`from datacenters located outside Illinois. Clark Decl. ¶ 9; Declaration of Greg Clark dated Aug.
`
`19, 2022 (“Aug. 19 Clark Decl.”) ¶ 3.
`
`B.
`
`Plaintiffs, Causes of Action, and Procedural History
`
`The current iteration of the complaint, the SAC, alleges that Plaintiffs are two Illinois
`
`residents and Uber drivers, whose identities were verified through Real-Time ID Check. SAC ¶¶
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`3-4, 33, 39.1 One of the Plaintiffs (Komorski), however, has never been subject to Real-Time ID
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`Check while in Illinois. Aug. 26 Sachdeva Decl. ¶ 14. The only two times he was subject to
`
`Real-Time ID Check were both outside Illinois, and both after he provided consent. Id. ¶ 15,
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`Exs. A-C. The other Plaintiff (Kashkeesh) was subject to Real-Time ID Check in Illinois, but
`
`
`1 Prior versions of the complaint involved two different Plaintiffs, both of whom have since been
`dropped after Microsoft showed that neither was ever subject to Real-Time ID Check. See
`Declaration of Shimul Sachdeva dated July 13, 2021, ¶ 8; ECF No. 24.
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`3
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`
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`only after providing consent. Id. ¶¶ 11-12, Exs. A-C. Nevertheless, Plaintiffs allege that when
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`Uber sent Face API calls to Microsoft via Uber’s Real-Time ID Check to verify that Plaintiffs
`
`were the drivers on file for their accounts, Microsoft violated Sections 15(a)-(d) of the Illinois
`
`Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq. See SAC ¶¶ 54-55.
`
`III. LEGAL STANDARD
`
`On a motion to dismiss under Rule 12(b)(2), plaintiffs bear the burden of establishing
`
`personal jurisdiction over the moving defendant. See N. Grain Mktg., LLC v. Greving, 743 F.3d
`
`487, 491 (7th Cir. 2014). In ruling on such a motion, the court may consider extrinsic evidence,
`
`including affidavits submitted by the parties. See Purdue Rsch. Found. v. Sanofi-Synthelabo,
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`S.A., 338 F.3d 773, 783 (7th Cir. 2003). “[O]nce the defendant has submitted affidavits or other
`
`evidence in opposition to the exercise of jurisdiction, the plaintiff must go beyond the pleadings
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`and submit affirmative evidence supporting the exercise of jurisdiction.” Id.
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`IV. ARGUMENT
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`A court may not exercise personal jurisdiction over a nonresident defendant, such as
`
`Microsoft here, unless the defendant has sufficient “minimum contacts” with the forum state that
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`the exercise of jurisdiction “does not offend ‘traditional notions of fair play and substantial
`
`justice.’” Int’l Shoe Co. v. State of Wash., Off. Of Unemployment Comp. & Placement, 326 U.S.
`
`310, 316 (1945).2 Personal jurisdiction may be “general or all-purpose jurisdiction” or only
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`“specific or conduct-linked.” Daimler AG v. Bauman, 571 U.S. 117, 122 (2014). General
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`jurisdiction permits a court “to hear any and all claims against” a defendant. Goodyear Dunlop
`
`
`2 The “Illinois long-arm statute allows for the exercise of ‘jurisdiction to the limit set by the Due
`Process Clauses,’” Mitek Corp. v. Diedrich, 2018 WL 5078385, at *2 (N.D. Ill. 2018)
`(Feinerman, J.), so “the statutory question merges with the constitutional one.” N. Grain, 743
`F.3d at 492.
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`4
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`
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`Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). A court may exercise specific
`
`jurisdiction, on the other hand, only when the “defendant’s contacts with the forum State [are]
`
`directly related to the conduct pertaining to the claims asserted.” Brook v. McCormley, 873 F.3d
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`549, 552 (7th Cir. 2017). Here, neither general nor specific jurisdiction exists over Microsoft.
`
`1.
`
`This Court Lacks General Jurisdiction over Microsoft.
`
`A corporation is subject to general jurisdiction in Illinois only if it is incorporated in
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`Illinois, if its principal place of business is in Illinois, or if its contacts with Illinois are so
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`“exceptional,” Daimler, 571 U.S. at 139, n.19, as “to approximate physical presence” in Illinois,
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`Tamburo v. Dworkin, 601 F.3d 693, 701 (7th Cir. 2010). That “threshold for general jurisdiction
`
`is high,” and for good reason: general jurisdiction permits a defendant to be sued in a state for
`
`“any action, even if the action is unrelated to” the defendant’s contact with the state. Id.
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`None of those bases for general jurisdiction applies here. As the SAC concedes,
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`Microsoft is incorporated in Washington, not Illinois. SAC ¶ 5. And its principal place of
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`business is in Redmond, Washington. Kuipers Decl. ¶ 3. So Illinois is neither of the two
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`“paradigm forum[s] for the exercise of general jurisdiction” over Microsoft. Daimler, 571 U.S.
`
`at 137. Additionally, the SAC does not—and cannot—assert that Microsoft has “exceptional”
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`contacts with Illinois approximating physical presence. Indeed, the SAC alleges nothing more
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`than that Microsoft “knowingly does business within Illinois,” “knowingly transacts business in
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`Illinois,” and is licensed to do so, SAC ¶¶ 5, 7—all of which has already been held “not [to]
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`suffice to permit the assertion of general jurisdiction.” BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549,
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`1559 (2017). Accordingly, Microsoft is not subject to general jurisdiction in Illinois.
`
`2.
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`This Court Also Lacks Specific Jurisdiction over Microsoft.
`
`A court may exercise specific jurisdiction only when “(1) the defendant has purposefully
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`
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`directed his activities at the forum state”3 and “(2) the alleged injury arises out of the defendant’s
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`forum-related activities.” Mitek Corp. v. Diedrich, 2018 WL 5078385, at *3 (N.D. Ill. 2018)
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`(quoting N. Grain, 743 F.3d at 492). Importantly, these requirements demand a connection that
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`“arise[s] out of contacts that the ‘defendant himself’ creates with the forum,” and not “[c]ontacts
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`between the plaintiff or other third parties and the forum” (such as Uber, here). Advanced
`
`Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 801 (7th Cir. 2014)
`
`(quoting Walden v. Fiore, 571 U.S. 277, 284 (2014)). That is because the “[d]ue process limits
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`on [a] State’s adjudicative authority” are designed to “protect the liberty of the nonresident
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`defendant—not the convenience of plaintiffs or third parties”—and as such can be lifted only
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`through acts of the defendant itself. Walden, 571 U.S. at 284. Indeed, a defendant’s protection
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`from being forced to appear in a state’s courts would be worth little if it could simply be
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`surrendered by acts of the plaintiff or third parties. See id. at 285-86.
`
`
`3 Sometimes, e.g., with breach-of-contract claims, courts instead analyze “whether the defendant
`purposefully availed himself of the privilege of conducting business in the forum state.” Felland
`v. Clifton, 682 F.3d 665, 674 (7th. Cir 2012). But because BIPA claims typically, as here, sound
`in tort, see SAC ¶ 71 (alleging negligent, reckless, or willful BIPA violations), courts generally
`focus on the “purposeful direction” inquiry described above. See, e.g., McGoveran v. Amazon
`Web Servs., Inc., 488 F. Supp. 3d 714, 722 (S.D. Ill. 2020); Stein v. Clarifai, Inc., 526 F. Supp.
`3d 339, 343-44 (N.D. Ill. 2021). In any event, specific jurisdiction based on purposeful
`availment exists only where (among other requirements) there is a “‘an affiliation between the
`forum and the underlying controversy, principally, an activity or occurrence that takes place in
`the forum State and is therefore subject to the State’s regulation.’” My Own Meals, Inc. v.
`PurFoods, LLC, 2022 WL 2132729, at *3 (N.D. Ill. 2022) (quoting Bristol-Myers Squibb Co. v.
`Superior Ct., 137 S. Ct. 1773, 1780 (2017)). Here, however, Plaintiffs fail to allege—much less,
`establish—facts showing those elements. Indeed, the record is clear that there was no relevant
`“activity or occurrence that t[ook] place [by Microsoft] in the forum State,” as: (1) Microsoft
`developed Face API outside Illinois, (2) the team responsible for it is outside Illinois, and (3)
`Microsoft negotiated and entered the license agreement with Uber from outside Illinois, with
`Uber representatives outside Illinois. Oct. 18 Clark Decl. ¶ 3; Kuipers Decl. ¶¶ 5, 7.
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`6
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`
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`For those reasons, the Seventh Circuit has cautioned that in cases involving “online
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`contacts,” courts should “‘ensure that a defendant is not haled into court simply because the
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`defendant owns or operates a website that is accessible in the forum state, even if that site is
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`interactive.’” be2 LLC v. Ivanov, 642 F.3d 555, 558 (7th Cir. 2011) (quoting Illinois v. Hemi
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`Group, LLC, 622 F.3d 754, 760 (7th Cir. 2010)). Accordingly, a plaintiff must show that in
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`addition to making a website accessible from the forum state, the defendant operated the website
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`to “in some way target the forum state’s market.” Id. at 559; see also Advanced Tactical, 751
`
`F.3d at 803 (focus is on “deliberate actions by the defendant to target or direct itself toward the
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`forum state,” such as “geographically-restricted online ads”). Here, the record makes clear that
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`Microsoft did nothing more than offer a technology “that is accessible from, but does not target,”
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`Illinois; accordingly, it “may not be haled into court” here. be2 LLC, 642 F.3d at 559.
`
`a.
`
`Microsoft Did Not Purposefully Target the Illinois Market by
`Licensing Face API to Uber.
`
`Applying exactly the principles above, courts have repeatedly held that an out-of-state
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`technology provider does not purposefully direct acts at Illinois when it is the provider’s
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`customer (or the customer’s customer) rather than the provider itself who makes the decision to
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`use the technology on data from Illinois residents in a way that is alleged to violate BIPA. That
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`is because a defendant purposefully directs conduct to Illinois only when “‘it is the defendant—
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`not third parties—that … create[s] the contacts in the forum state.’” Mitek, 2018 WL 5078385,
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`at *6 (quoting Philos Techs., Inc. v. Philos & D, Inc., 802 F.3d 905, 913 (7th Cir. 2015)). And
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`when it is the provider’s customer who makes the decision to use the technology in Illinois, “any
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`such contact would be the result of actions by [the customer] … not by [the provider] itself.”
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`Salkauskaite v. Sephora USA, Inc., 2020 WL 2796122, at *5 (N.D. Ill. 2020).
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`So, for instance, a defendant does not purposefully direct conduct at Illinois when it
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`
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`merely “appl[ies] [its] voice biometric technology to every caller” routed to it by its customer,
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`even if some of those calls were with Illinois residents. McGoveran v. Amazon Web Servs., Inc.,
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`488 F. Supp. 3d 714, 722 (S.D. Ill. 2020). Indeed, the only reason such Illinois “voiceprints [a]re
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`collected” at all is “because [the customer] chose to use [the technology] to analyze the voices of
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`its customers” in Illinois—not because the defendant itself did anything to “specifically target[]
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`Illinois citizens.” Id. at 723. Similarly, a software provider whose “business consists of selling
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`augmented-reality (‘AR’) products to beauty brand companies” does not purposefully direct
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`conduct at Illinois simply because one of the companies who licenses its software happens to use
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`it in Illinois. Salkauskaite, 2020 WL 2796122, at *4. As above, “any such contact would be the
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`result of actions by [the customer], not by [the defendant] itself.” Id. at *5.
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`Likewise, an out-of-state provider of timekeeping software services (i.e., software that
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`scans employees’ faces to clock in and out) does not purposefully direct acts at Illinois just
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`because one of its customers chooses to use its software on individuals who reside in Illinois.
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`Bray v. Lathem Time Co., 2020 WL 1492742, at *3 (C.D. Ill. 2020).4 Once again, that is because
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`the defendant “did not itself create any contact with Illinois,” but rather such contact was “the
`
`
`4 Some courts have held that even a company that interacts directly with Illinois residents, rather
`than (as here) through an intermediary, is not subject to specific jurisdiction so long as it does not
`target Illinois in some way distinct from the nation as a whole. See, e.g., Stein, 526 F. Supp. 3d
`at 344-45 (no personal jurisdiction over company that licensed facial recognition model to two
`Illinois customers through interactive, non-targeted website); Gullen v. Facebook.com, Inc., 2016
`WL 245910, at *2 (N.D. Ill. 2016) (no specific jurisdiction where defendant used “facial
`recognition technology on ‘every user-uploaded photo,’ not just on photos uploaded in or by
`residents of Illinois”). Plaintiffs have cited other cases, which they claim disagree. ECF No. 39
`at 4-5. Ultimately, however, this dispute is beside the point, as these cases all concern
`defendants who directly interacted with Illinois residents, rather than defendants who (as here)
`had no such direct contact. Microsoft is thus significantly more removed from Illinois—in
`exactly the way that the cases themselves say is material—than the defendants in any of these
`direct contact cases (both those finding jurisdiction, and those not).
`
`8
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`Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 14 of 22 PageID #:491
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`result of decisions by [the customer] to … use [the technology] in the state.” Id.
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`This case fits that template exactly. Discovery has confirmed that Microsoft is an out-of-
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`state vendor, no different from those in McGoveran, Salkauskaite, and Bray, who simply makes
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`its software services available to an out-of-state customer (here, Uber), who in turn makes the
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`decision whether or to what extent to use that software on data from Illinois residents. Indeed,
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`Microsoft’s license agreements with Uber make clear that Uber, not Microsoft, controls where in
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`the United States Uber uses Real-Time ID Check. See Kuipers Decl. ¶ 8. Drivers interact only
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`with Uber (a California-headquartered Delaware corporation) when using Real-Time ID
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`Check—not with Microsoft; and it is Uber, not the drivers, who interacts with Face API. Oct. 18
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`Clark Decl. ¶¶ 7, 9. In this way, Microsoft’s Face API is indistinguishable from the call
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`technology in McGoveran, the AR product in Salksauskaite, and the timekeeping software in
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`Bray: in each case it is only the customer, not the technology provider, who makes the
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`connection with Illinois. And so in each case, it is only the customer, not the provider, who
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`purposefully directed acts at Illinois.
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`In fact, Microsoft is even further removed from Illinois than were the defendants in Bray
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`or Salksauskaite, because while in those cases the defendant’s customer used the technology at
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`issue in Illinois, here the use of Face API occurred entirely outside Illinois. Specifically, when
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`Uber employed its Real-Time ID Check to verify drivers, it always made calls to Face API for
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`that purpose from outside Illinois. Id. ¶ 9; Aug. 26 Sachdeva Decl. ¶ 19. Microsoft, in turn,
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`received those call outside Illinois; processed them outside Illinois; and returned the results from
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`outside Illinois by return calls that went back to Uber outside Illinois. Aug. 19 Clark Decl. ¶ 3.
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`In short, to the extent the SAC describes connections between Face API and Illinois,
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`Uber, not Microsoft, brought about those connections. Microsoft itself had no relevant contact
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`Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 15 of 22 PageID #:492
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`with Illinois.5 Uber—and Uber alone—decided to deploy its Real-Time ID Check to drivers
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`located in Illinois, so Uber’s independent decisions and actions, and those decisions and actions
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`alone—created the only link between Face API and those drivers. Moreover, any time Uber
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`used Real-Time ID Check to verify Uber drivers located in Illinois, Uber made and Microsoft
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`processed the Face API calls entirely outside Illinois. Plaintiff’s effort to predicate specific
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`jurisdiction on these facts thus runs headlong into the admonitions from both this Court and the
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`Supreme Court that specific jurisdiction must be based on “‘defendant’s contacts with the forum
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`State itself.’” Mitek, 2018 WL 5078385, at *5 (quoting Walden, 571 U.S. at 285). And so here,
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`because Uber—and Uber alone—can be said to have purposefully directed conduct towards
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`Illinois, well-established law precludes exercising specific jurisdiction over Microsoft.
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`b.
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`Plaintiffs’ Counterarguments Are Unavailing.
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`Although Plaintiffs have had numerous opportunities to address the caselaw discussed
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`above, their responses thus far have merely ignored it. Instead, Plaintiffs’ primary move has
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`been simply to highlight different cases, which they suggest command a different result. See
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`ECF No. 35, at 5-7 (citing Norberg v. Shutterfly, Inc., 152 F. Supp. 3d 1103 (N.D. Ill. 2015);
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`King v. PeopleNet Corp., 2021 WL 5006692 (N.D. Ill. 2021)). But as Plaintiffs’ own
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`characterization of those cases makes clear, there is no relevant conflict. While the caselaw
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`discussed above holds that no specific jurisdiction exists where a defendant interacts with Illinois
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`5 Indeed, the record goes even further in confirming the absence of relevant contacts between
`Microsoft and Illinois here: Microsoft and Uber are both based outside Illinois (in Washington
`and California); Microsoft developed Face API outside Illinois; the Microsoft team responsible
`for Face API is located outside Illinois; Microsoft and Uber negotiated the relevant license
`agreements outside Illinois (again, in Washington and California); and the Microsoft employees
`responsible for the negotiation had no recall of having discussed whether Uber would use Face
`API in Real-Time ID Check in “specific jurisdictions or states,” including with drivers in Illinois,
`with Uber. Kuipers Decl. ¶¶ 3, 5, 7, 9; Oct. 18 Clark Decl. ¶ 3; Meal Decl. Ex. A.
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`Case: 1:21-cv-03229 Document #: 65 Filed: 08/23/22 Page 16 of 22 PageID #:493
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`residents only indirectly through an intermediary, the caselaw cited by Plaintiffs holds—on
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`Plaintiffs’ own telling—that personal jurisdiction can exist based on a defendant’s “directly
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`interacting with Plaintiffs and other Illinois residents[.]” ECF No. 39 at 2. That difference is
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`crucial: A defendant who makes the decision to directly interact with Illinois residents does so
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`knowing that such interaction carries with it the responsibility to appear in Illinois courts for
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`claims arising out of that interaction. But a defendant who makes no such decision, and instead
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`is connected to Illinois only through the independent acts of another, did not agree to the basic
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`bargain that underlies personal jurisdiction. And b