Case: 1:22-cv-02409 Document #: 1 Filed: 05/06/22 Page 1 of 7 PageID #:1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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` Case No:
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`MAETEAN JOHNSON, individually and on
`behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`RALPHS GROCERY COMPANY d/b/a
`FOOD 4 LESS MIDWEST, and THE
`KROGER CO.,
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`Defendants.
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`NOTICE OF REMOVAL
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`Pursuant to 28 U.S.C. § 1446, and the jurisdictional provisions of the Class Action
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`Fairness Act of 2005 (“CAFA”), codified at 28 U.S.C. § 1332(d)(2) and 28 U.S.C. § 1453(b),
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`Defendants Ralphs Grocery Company d/b/a Food 4 Less Midwest (“Ralphs”) and The Kroger
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`Co. (“Kroger”) (collectively “Defendants”) remove this putative class action from the Circuit
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`Court of Cook County, Illinois to the United States District Court for the Northern District of
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`Illinois, Eastern Division. See Civil Action Cover Sheet filed herewith as Exhibit A. As
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`explained below, this putative class action is subject to the Court’s jurisdiction under 28 U.S.C. §
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`1332(d)(2) because minimal diversity exists and the amount placed in controversy by the
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`putative class members’ claims exceeds $5,000,000.
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`Overview of the Claims Asserted and Relief Sought
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`1.
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`Plaintiff Maetean Johnson (“Plaintiff”) filed a class action complaint (the
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`“Complaint”) in which she alleges Defendant violated the Illinois Biometric Information Privacy
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`Act (“BIPA”), 740 ILCS § 14/1, et seq. See Compl. attached hereto as Exhibit B. In particular,
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`she alleges Defendants violated Sections 15(a), 15(b), and 15(d) because they allegedly
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`collected, captured, stored, obtained, used, and/or disseminated their employees’ fingerprints
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`without: (a) informing them of the specific purpose and length of time for which their
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`fingerprints were collected and stored; (b) making publicly available a retention schedule and
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`policy for destroying their fingerprints; and (c) obtaining a written release in which they
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`authorized Defendants to collect, capture, store, and/or use their fingerprints. See generally
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`Compl. (Ex. B).
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`2.
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`Plaintiff purports to bring her BIPA claims on behalf of, not just employees of the
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`named defendants, Kroger and Ralphs, but all individuals working in facilities affiliated with
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`Kroger and Ralphs. She defines the class as follows:
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`All individuals working for Defendants or any of their affiliated facilities in the
`State of Illinois who had their fingerprints and/or any other biometric identifier or
`biometric information collected, captured, received, or otherwise obtained,
`maintained, stored, or disclosed by Defendants during the applicable statutory
`period.
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`Compl., ¶61 (Ex. B).
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`3.
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`Plaintiff asks the Court to award “statutory damages of $5,000 for each
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`intentional and/or reckless violation” of the above referenced sections of BIPA (i.e., $15,000 per
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`putative class member). Compl., Prayer for Relief, ¶C (Ex B). (emphasis in original).
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`Basis for the Court’s Jurisdiction Under CAFA
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`4.
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`CAFA amended 28 U.S.C. § 1332 to grant United States district courts original
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`jurisdiction over “any civil action:” (a) in which the “matter in controversy exceeds the sum or
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`value of $5,000,000, exclusive of interest and costs” and (b) which is a “class action” in which,
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`among other things, “any member of a class of plaintiffs is a citizen of a State different from any
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`defendant.” This case meets all the requirements for jurisdiction under CAFA and 28 U.S.C. §
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`1332(d)(2).
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`A.
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`This Matter Is a “class action” Under CAFA.
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`5.
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`A “class action” for purposes of CAFA is defined as “any civil action filed in a
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`district court of the United States under rule 23 of the Federal Rules of Civil Procedure or any
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`civil action that is removed to a district court of the United States that was originally filed under
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`a State statute or rule of judicial procedure authorizing an action to be brought by 1 or more
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`representative persons as a class action.” 28 U.S.C. § 1332(d)(1)(B). Plaintiff seeks to bring
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`BIPA claims, pursuant to 735 ILCS § 5/2-801, on behalf of “[a]ll individuals working for
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`Defendants or any of their affiliated facilities in the State of Illinois who had their fingerprints
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`and/or any other biometric identifier or biometric information collected, captured, received, or
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`otherwise obtained, maintained, stored, or disclosed by Defendants during the applicable
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`statutory period.” Compl., ¶61 (Ex. B). This action therefore is a “class action” under CAFA.
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`B.
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`The Requirement of Minimal Diversity Is Met.
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`6.
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`Plaintiff is a citizen of the State of Illinois. Compl., ¶18 (Ex. B). Neither
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`defendant is a citizen of the State of Illinois.
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`7.
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`A corporation “shall be deemed . . . a citizen of every [s]tate . . . by which it has
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`been incorporated and of the [s]tate ... where it has its principal place of business.” 28 U.S.C. §
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`1332(c)(1). A corporation’s “principal place of business” under § 1332(c)(1) is its “nerve
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`center,” that is, “the place where the corporation maintains its headquarters . . .” Hertz Corp. v.
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`Friend, 559 U.S. 77, 92–93 (2010).
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`8.
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`The application of the Hertz rule to this case is straightforward. Kroger is an Ohio
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`corporation headquartered in Cincinnati, Ohio. See Kroger’s corporate record attached as hereto
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`Exhibit C. Ralphs is an Ohio corporation headquartered in California. See Ralphs’ corporate
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`record attached hereto as Exhibit D.
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`9.
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`Plaintiff, by contrast, is a citizen of the State of Illinois. Compl., ¶18.
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`10. Minimal diversity therefore exists under 28 U.S.C. § 1332(d)(2)(A). Lewert v.
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`P.F. Chang's China Bistro, Inc., 819 F.3d 963, 965–66 (7th Cir. 2016) (minimal diversity existed
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`and the court had CAFA jurisdiction because the class representatives were citizens of Illinois,
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`while the defendant was a Delaware corporation with its principal place of business in Arizona).
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`C.
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`The “Matter in Controversy” Aggregated Across All the Class Members’ Claims
`Meets the CAFA Threshold.
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`11.
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`The amount in controversy under CAFA is satisfied “if the matter in controversy
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`exceeds the sum or value of $5,000,000, exclusive of interest and costs.” 28 U.S.C. § 1332(d)(2).
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`For purposes of determining the amount in controversy in class actions, CAFA expressly
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`requires that “the claims of the individual members shall be aggregated . . .” 28 U.S.C. §
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`1332(d)(6). The Seventh Circuit has held that, in a CAFA removal, the “defendant is entitled to
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`present a good-faith estimate of the stakes . . . [and] . . . [i]f that estimate exceeds the
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`jurisdictional minimum, it controls and allows removal unless recovery exceeding the
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`jurisdictional minimum would be legally impossible.” Back Doctors Ltd. v. Metro. Prop. & Cas.
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`Ins. Co., 637 F.3d 827, 831 (7th Cir. 2011) (vacating district court order that had remanded
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`consumer fraud class action to Illinois state court).
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`12.
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`Based on the allegations contained in the Complaint, it is clear that Plaintiff seeks
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`class-wide relief that exceeds $5,000,000.
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`13.
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`Plaintiff alleges three different BIPA violations, which, according to her
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`allegations, collectively entitle Plaintiff and each putative class member to $15,000 in statutory
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`damages under BIPA, plus attorneys’ fees. See generally Compl., and Prayer for Relief, ¶C (Ex.
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`B) (requesting an award of $5,000 in statutory damages for each reckless or intentional violation
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`of BIPA). Thus, if plaintiff prevailed on her liability and damages claims, which Defendants
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`vigorously deny, each class member could potentially recover $15,000.
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`14.
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`Further, there are at least 1,000 members of the broadly defined class that Plaintiff
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`seeks to represent.1 Ralphs and Kroger operate numerous grocery stores in the State of Illinois.
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`As a result, there are more than 1,000 current and former employees of Defendants and/or their
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`affiliates who used the timeclock system with finger scanner that underlies Plaintiff’s BIPA
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`claims during the five-year period extending back from the date Plaintiff filed this action on
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`March 25, 2022. If each member of a 1,000-employee class was awarded $15,000 ($5,000 for
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`each of the three different violations alleged), the aggregate class award would equal
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`$15,000,000 (1,000 employees, times three alleged violations per employee, times $5,000 per
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`alleged violation). Therefore, the matter-in-controversy threshold under 28 U.S.C. § 1332(d)(2)
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`is met.
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`15. While Plaintiff’s putative class claims put in controversy an amount exceeding the
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`CAFA minimum, Defendants adamantly deny that they violated any requirement of BIPA.
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`Among other things, the evidence will show that the challenged timeclock system did not in fact
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`capture or collect “biometric information” or “biometric identifiers” as those terms are defined in
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`BIPA and that class members are covered by collective bargaining agreements or individual
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`agreements authorizing the use of the challenged timeclock system and/or requiring arbitration of
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`these claims.
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`Procedure for Removal
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`16.
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`Defendant was served with process on April 6, 2022. Defendant filed this notice
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`within thirty days of that date. Thus, this notice is timely.
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` Defendants deny that Plaintiff, a former Ralphs employee, is a proper class representative for current
`and former employees of Kroger or Kroger’s affiliated companies. Nonetheless, plaintiff seeks to
`represent a broad class that includes “[a]ll individuals working for” Ralphs, Kroger, and each of their
`“affiliated facilities.” Compl. ¶61. By putting forward this broad definition, Plaintiff apparently seeks
`BIPA damages on behalf of not just employees of Kroger and Ralphs, but Illinois employees of other
`companies affiliated with Kroger and Ralphs.
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`17.
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`Defendant also has already filed or will file this notice of removal with the Circuit
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`Court of Cook County, Illinois in accordance with 28 U.S.C. § 1446(d).
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`18.
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`Defendant has attached as Exhibit B a copy of all process and pleadings served
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`upon it in the Circuit Court of Cook County.
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`Respectfully submitted by:
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`Ralphs Grocery Company d/b/a Food 4 Less
`Midwest and The Kroger Co.
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`By: /s/ Joseph D. Kern
`Diane Webster
`Peter E. Pederson
`Joseph D. Kern
`HINSHAW & CULBERTSON LLP
`151 North Franklin Street, Suite 2500
`Chicago, Illinois 60606
`(312) 704-3000 Phone
`(312) 704-3001 Fax
`dwebster@hinshawlaw.com
`ppederson@hinshawlaw.com
`jkern@hinshawlaw.com
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`CERTIFICATE OF SERVICE
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`The undersigned attorney certifies that on March 6, 2022, he electronically filed this
`document through the Court’s CM/ECF system, which will cause a copy of the document to be
`delivered electronically to counsel of record identified below. The undersigned also caused a
`copy of this document to be sent to counsel identified below by email.
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`Counsel for Plaintiff
`Ryan F. Stephan
`James B. Zouras
`Haley R. Jenkins
`STEPHAN ZOURAS, LLP
`100 N. Riverside Plaza, Suite 2150
`Chicago, Illinois 60606
`rstephan@stephanzouras.com
`jzouras@stephanzouras.com
`hjenkins@stephanzouras.com
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`/s/ Joseph D. Kern
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