Patterson v. Respondus, Inc.

• Decision Date: 23 March 2022
• Docket Number: 20 C 7692, No. 21 C 1785, No. 21 C 2620
• Citation: 593 F.Supp.3d 783
• Parties: Courtnie PATTERSON, individually and on behalf of all others similarly situated, Plaintiff, v. RESPONDUS, INC. and Lewis University, Defendants. Cheng Wu, individually and on behalf of all others similarly situated, Plaintiff, v. Respondus, Inc., Defendant. Lucius Veiga, Michael Sterchele, and Alex Parker Zimmerman, on behalf of themselves and all others similarly situated, Plaintiffs, v. Respondus, Inc., Defendant.
• Court: U.S. District Court — Northern District of Illinois

593 F.Supp.3d 783

Courtnie PATTERSON, individually and on behalf of all others similarly situated, Plaintiff,

v.RESPONDUS, INC. and Lewis University, Defendants.

Cheng Wu, individually and on behalf of all others similarly situated, Plaintiff,

v.Respondus, Inc., Defendant.

Lucius Veiga, Michael Sterchele, and Alex Parker Zimmerman, on behalf of themselves and all others similarly situated, Plaintiffs,

v.Respondus, Inc., Defendant.

No. 20 C 7692

No. 21 C 1785

No. 21 C 2620

United States District Court, N.D. Illinois, Eastern Division.

Signed March 23, 2022

Raina C. Borrelli, Samuel J. Strauss, Turke & Strauss LLP, Madison, WI, Brian Kevin Murphy, Murray Murphy Moul Basil LLP, Columbus, OH, for Plaintiff in 20 C 7692.

Raina C. Borrelli, Mary C. Turke, Samuel J. Strauss, Turke & Strauss LLP, Madison, WI, Jonathan Patrick Misny, Brian Kevin Murphy, Murray Murphy Moul Basil LLP, Columbus, OH, Lauren E. Urban, Attorney at Law, Chicago, IL, for Plaintiff in 21 C 1785.

Andrei Vladimir Rado, Blake Hunter Yagman, Pro Hac Vice, Milberg Coleman Bryson Phillips Grossman, PLLC, Garden City, NY, Erin J. Ruben, Pro Hac Vice, Matthew E. Lee, Pro Hac Vice, Milberg Coleman Bryson Phillips Grossman, PLLC, Raleigh, NC, Gary M. Klinger, Milberg Coleman Bryson Phillips Grossman, PLLC, Chicago, IL, Gregory F. Coleman, Greg Coleman Law PC, Knoxville, TN, Jonathan Betten Cohen, Melissa Kaye Sims, Milberg Coleman Bryson Phillips Grossman, PLLC, Knoxville, TN, for Plaintiffs in 21 C 2620.

Bonnie Keane DelGobbo, Amy Lynn Lenz, Baker & Hostetler LLP, Chicago, IL, Joel Griswold, Baker & Hostetler, LLP, Orlando, FL, for Defendant Respondus, Inc. in 20 C 7692, 21 C 1785, 21 C 2620.

Colette Lynn Kopon, David Anthony Pestell, Kopon Airdo, LLC, Chicago, IL, Darcy L. Proctor, Tressler LLP, Chicago, IL, for Defendant Lewis University in 20 C 7692.

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, United States District Judge

This opinion concerns three putative class actions brought under the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14/1 et seq. In each case, the plaintiffs are current or former students who took an exam using Respondus Monitor, a software program that their schools used to administer online exams without a proctor. Respondus Monitor employs a student's webcam and microphone to record the student and their examination environment. The plaintiffs allege that the program captures various types of biometric data, including scans of students’ facial geometry.

All three sets of plaintiffs have sued the company that makes Respondus Monitor (Respondus, Inc., a Washington-based company), and one plaintiff has also sued her school (Lewis University, a private university in Illinois). All plaintiffs allege that the defendants violated BIPA by failing to obtain their informed, written consent to the collection of their biometric data, 740 ILCS 14/15(b), and by failing to publicly disclose a compliance policy regarding the retention and destruction of biometric data in their possession, id. § 14/15(a). Some plaintiffs also allege that the defendants unlawfully profited from their biometric data, id. § 14/15(c), and unlawfully disclosed their biometric data to third parties, id. § 14/15(d).

Respondus and Lewis have moved to dismiss the plaintiffs’ BIPA claims on several grounds. The motions have generated a host of subsidiary disputes, including questions of civil procedure and contract law. After resolving these threshold issues, the court reaches the BIPA claims, addressing standing in addition to the issues briefed by the parties. As explained here, the court finds that the plaintiffs have successfully stated claims for violations of some BIPA provisions but that they lack Article III standing with respect to other provisions.

PROCEDURAL HISTORY

This opinion resolves four motions to dismiss filed by two separate defendants in three different cases. The court attempts to provide clarity below.

Patterson v. Respondus Inc. & Lewis University (No. 20 C 7692). On November 16, 2020, Jerrie Hinds filed a putative class-action complaint against Respondus in the Circuit Court of Cook County, Illinois. On December 23, 2020, Respondus removed the case to this district under the Class Action Fairness Act of 2005 (CAFA).¹ (See Notice of Removal, Patterson v. Respondus, Inc. , No. 20 C 7692 [1] (hereinafter "Notice of Removal (Patterson )").) The case was assigned to this court. On January 22, 2021, Hinds filed the operative First Amended Complaint, in which Courtnie Patterson was joined as a plaintiff and Lewis University was added as a defendant. Hinds has since voluntarily dismissed her claims, leaving Patterson as the sole remaining named plaintiff. Patterson claims that both Respondus and Lewis violated BIPA sections 15(a), 15(b), 15(c), and 15(d). (See First Am. Class Action Compl., Patterson v. Respondus, Inc. , No. 20 C 7692 [12] (hereinafter "Compl. (Patterson )").) Patterson sues on behalf of herself and two proposed classes, defined (with exclusions not relevant here) as follows:

Respondus Monitor Class : All persons who took an exam using Respondus Monitor in the state of Illinois at any time during the five years prior to the filing of this Complaint through trial.

Lewis University Class : All persons who took an exam using Respondus Monitor as a student of Lewis in the state of Illinois at any time during the five years prior to the filing of this Complaint through trial.

(Compl. (Patterson ) ¶ 107.)

Wu v. Respondus, Inc. (No. 21 C 1785). On April 2, 2021, Phillip Bridges and Cheng Wu filed a putative class-action complaint against Respondus in this district, premising federal jurisdiction on the CAFA. The case was initially assigned to Judge Sara Ellis, but it was reassigned to this court as related to Patterson. Bridges voluntarily dismissed his claims, leaving Wu as the sole remaining named plaintiff. The same attorneys represent Plaintiffs Patterson and Wu, and apart from the fact that the Wu complaint does not name Lewis University as a defendant, it is essentially identical to the Patterson complaint. Like Patterson, Wu sues on behalf of himself and others similarly situated and claims that Respondus violated BIPA sections 15(a), 15(b), 15(c), and 15(d). (See Class Action Compl., Wu v. Respondus, Inc. , No. 21 C 1785 [1] (hereinafter "Compl. (Wu )").) Wu proposed the following class definition (with exclusions not relevant here):

All persons who took an assessment using Respondus Monitor in Illinois at any time during the five years prior to the filing of this Complaint through January 20, 2021.

(Compl. (Wu ) ¶ 106.)

Veiga et al. v. Respondus, Inc. (No. 21 C 2620). On March 31, 2021, Lucius Veiga, Michael Sterchele, and Alex Parker Zimmerman filed a putative class-action complaint against Respondus in the Circuit Court of Cook County, Illinois. Respondus removed the case to this district under the CAFA. (See Notice of Removal, Veiga v. Respondus, Inc. , No. 21 C 2620 [1] (hereinafter "Notice of Removal (Veiga )").) The case was initially assigned to Judge John Lee, but, like Wu , it was reassigned to this court as related to Patterson. Plaintiffs Veiga, Sterchele, and Zimmerman are represented by different attorneys than Plaintiffs Patterson and Wu, and the allegations in their complaint are slightly different. The Veiga Plaintiffs claim that Respondus violated BIPA sections 15(a) and 15(b). (See Class Action Compl., Ex. 1 to Notice of Removal, Veiga v. Respondus, Inc. , No. 21 C 2620 [1] (hereinafter "Compl. (Veiga )").) Like the Patterson and Wu Plaintiffs, the Veiga Plaintiffs seek to represent a class. They have proposed the following class definition (again, with exclusions not relevant here):

All Illinois citizens, who used Respondus Monitor's software for a remotely proctored exam from 2016 through 2020, and whose biometric information or identifiers were collected, captured, purchased, received through trade, or otherwise obtained by Respondus in Illinois in violation of the Illinois Biometric Information Privacy Act, 740 ILCS 14/5 et seq.

(Compl. (Veiga ) ¶ 37.)

Respondus's three motions to dismiss. On June 4, 2021, Respondus filed motions to dismiss in Patterson (No. 20 C 7692 [48]), Wu (No. 21 C 1785 [21]), and Veiga (No. 21 C 2620 [15]).² Respondus's supporting memoranda of law were largely the same in each case. The three motions have been exhaustively briefed.³ In this opinion, the court addresses the Patterson and Wu cases together because these Plaintiffs filed nearly identical complaints, are represented by the same counsel, and filed nearly identical response briefs. The Veiga case differs slightly, so the court addresses that motion separately at times.

Lewis's motion to dismiss. On June 4, 2021, Lewis filed a motion to dismiss in Patterson (No. 20 C 7692 [50]), the only case in which it is a defendant. That motion, too, is fully briefed.⁴ Because Lewis's motion raises different legal issues than Respondus's motions, the court addresses it separately.

FACTUAL BACKGROUND

Plaintiffs are all Illinois citizens who took exams using Respondus Monitor at least once while attending school in Illinois. (Compl. (Patterson ) ¶¶ 27, 98–100; Compl. (Wu ) ¶¶ 24, 95–98; Compl. (Veiga ) ¶¶ 9–10, 31–32.) Each named plaintiff attended a different school at the time they used Respondus Monitor. (See Compl. (Patterson ) ¶¶ 98; Compl. (Wu ) ¶ 95; Compl. (Veiga ) ¶¶ 9–10.) Plaintiff Courtnie Patterson, who attended Lewis University (see Compl. (Patterson ) ¶ 98), has also named Lewis as a defendant in her case.

Defendant Respondus, Inc. is a Washington-based software company that "offers several cloud-based software and service applications to assist educational institutions in providing online content and exams to students." (Compl. (Patterson ) ¶¶ 28, 34; Compl. (Wu ) ¶¶ 25, 29; see also Compl. (Veiga ) ¶¶ 11, 18.) The software at the center of this case, Respondus Monitor, is an automated proctoring tool that schools use to administer...