Case: 1:21-cv-03229 Document #: 82 Filed: 12/13/22 Page 1 of 2 PageID #:706
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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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`vs.
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`MICROSOFT CORPORATION,
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`Defendant.
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`ORDER
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`For the reasons set forth below, Defendant’s motion to dismiss for lack of personal
`jurisdiction [64] is denied. Defendant shall answer the operative complaint by 1/3/2023 (not
`12/27/2022, the date called for by the 11/7/2022 order [81]).
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`STATEMENT
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`Emad Kashkeesh and Michael Komorski, drivers for the rideshare platform Uber, bring
`this putative class action against Microsoft Corporation for alleged violations of the Illinois
`Biometric Information Privacy Act, 740 ILCS 14/1 et seq. Doc. 28; see Docs. 61-62 (reported at
`2022 WL 2340876 (N.D. Ill. June 29, 2022)) (severing certain claims and remanding them to
`state court). Microsoft licenses its Face Application Programming Interface (“Face API”) to
`Uber, which uses it to verify the identifies of Uber drivers: Uber prompts a driver for a
`photograph of himself, Doc. 33-5 at ¶ 3; Uber sends that photograph and a photograph on file to
`Microsoft, Doc. 33-1 at ¶ 5; and Microsoft’s API returns a predication as to whether the two
`photographs depict the same person, ibid. Microsoft—which is incorporated in and has its
`principal place of business in the State of Washington, Doc. 28 at ¶ 5; Doc. 33-2 at ¶ 3—moves
`to dismiss under Civil Rule 12(b)(2), contending that the court lacks personal jurisdiction over it
`because it has no control over where Uber drivers use the API and because it receives the
`photographs outside of Illinois. Doc. 66 at 14.
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`Microsoft’s motion is denied. Jurisdictional discovery revealed that Microsoft not only
`knew that Uber would use the Face API for drivers in Illinois, but that Microsoft modified the
`API specifically for Illinois drivers. In reaching their licensing agreement, Microsoft and Uber
`negotiated how to treat drivers in Illinois and Texas, which both have biometric privacy laws of
`concern to Uber. Doc. 71-2 at 2; Doc. 71-5 at 3. The companies reached an agreement under
`which a special header accompanies photographs from drivers in those States, and Microsoft is
`required to purge such photographs from its data repository within 48 hours of receiving them.
`Doc. 71-1 at 20; Doc. 71-3 at 8; Doc. 71-4 at 8. By modifying its business practices specifically
`with respect to the use of its API in Illinois, Microsoft purposefully directed its business
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`Case: 1:21-cv-03229 Document #: 82 Filed: 12/13/22 Page 2 of 2 PageID #:707
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`activities to Illinois, availed itself of the forum, and thereby subjected itself to specific
`jurisdiction for purposes of this suit. See Illinois v. Hemi Grp. LLC, 622 F.3d 754, 758 (7th Cir.
`2010) (holding a company subject to personal jurisdiction in Illinois where it specifically
`declined to do business with New York residents due to that State’s laws); Crumpton v.
`Haemonetics Corp., 595 F. Supp. 3d 687 (N.D. Ill. Mar. 30, 2022) (holding a company subject to
`the court’s jurisdiction where it “deliberately entered into contractual and business arrangements
`to ensure that its software collected data in Illinois and [the company] itself hosted Illinois
`resident’s data on its servers [in Canada]”); cf. be2 LLC v. Ivanov, 642 F.3d 555, 558-59 (7th Cir.
`2011) (“Beyond simply operating an interactive website that is accessible from the forum state, a
`defendant must in some way target the forum state’s market.”).
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`Microsoft argues that this conclusion conflicts with McGoveran v. Amazon Web Services,
`Inc., 488 F. Supp. 3d 714 (S.D. Ill. 2020), Salkauskaite v. Sephora USA, Inc., 2020 WL 2796122
`(N.D. Ill. May 30, 2020), and Bray v. Lathem Time Co., 2020 WL 1492742 (C.D. Ill. Mar. 27,
`2020). Microsoft is incorrect. In those cases, the defendants sold technology or products to
`others who then decided, on their own, to use the technology or products in the forum. That is
`plainly different from this case, where Microsoft both knew that Uber intended to use the Face
`API in Illinois and modified the API for that very purpose. Indeed, one of the cases cited by
`Microsoft supplies the key distinction, noting that the defendant there had not “modif[ied]” its
`technology for “state-specific objectives or needs.” Salkauskaite, 2020 WL 2796122, at *4.
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`Microsoft also argues that it lacks the necessary contacts with Illinois because it was
`Uber that wanted the option to tag Illinois photographs with a special header and Uber that
`ultimately may exercise that option. Doc. 75 at 5, 9. But that Uber prompted Microsoft to direct
`its business activities towards Illinois makes no difference in the personal jurisdiction analysis.
`Microsoft modified its contractual relationship with Uber to meet Uber’s demands, thereby
`directing Microsoft’s activities towards, and purposefully availing itself of, the forum.
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`For these reasons, Plaintiffs have established the “prima facie case of personal
`jurisdiction” required where, as here, the court rules on a Rule 12(b)(2) motion without holding
`an evidentiary hearing. N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014)
`(internal quotation marks omitted).
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`One last issue requires mention. Microsoft points to evidence that Komorski has never
`used its Face API while in Illinois. Doc. 66 at 8; Doc. 75 at 8. Microsoft does not proceed to
`argue, however, that the court lacks personal jurisdiction over Microsoft as to Komorski’s claim.
`Cf. Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773, 1781 (2017). Accordingly,
`Microsoft has forfeited any argument that the court lacks jurisdiction over his claim. See G&S
`Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held
`that a party waives an argument by failing to make it before the district court.”). In any event,
`even if Komorski were dismissed, the suit would proceed on Kashkeesh’s claim.
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`December 13, 2022
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`___________________________________
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`United States District Judge
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`2
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