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Treadwell v. Power Solutions International, Inc.

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

December 16, 2019

JEROME TREADWELL, individually, and on behalf of all others similarly situated, Plaintiff,



         Defendant Power Solutions International, Inc. (“PSI”) moves to dismiss Plaintiff Jerome Treadwell's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court denies PSI's motion to dismiss [49].


         Treadwell filed a putative class action against his employer PSI, alleging that PSI's use of a fingerprint timekeeping system violates the Illinois Biometric Information Privacy Act (“BIPA”). (See generally Am. Cmplt., ECF No. 43.) PSI is a company that manufactures and distributes industrial engines and power systems. (See id. at ¶ 1.) Treadwell was hired by PSI in April 2018 to work as a production assembler and is still employed in that role. (See id. at ¶ 39.) Treadwell alleges that when PSI hires its employees, PSI requires the employees to scan their fingerprints into a database operated by NOVAtime Technology, Inc. (“NOVAtime”), a company that provides equipment to track employees' work hours.[1] (See id. at ¶¶ 2-3.) Treadwell was required to scan his fingerprints each time he began and ended his workday so that PSI could track his time. (See id. at ¶¶ 40-42.)

         BIPA imposes certain restrictions on how private entities like PSI collect, retain, use, disclose, and destroy “biometric identifiers” and “biometric information.” See generally 740 ILCS 14/1 et seq. BIPA defines “biometric identifier” as including an individual's fingerprints. 740 ILCS 14/10. BIPA mandates that before obtaining an individual's fingerprint, a private entity must inform the individual in writing about several things, such as the fact that his/her biometric identifier is being collected, the specific purpose of collecting or using the biometric identifier, and the length of time for which the biometric identifier will be collected, stored, and used. 740 ILCS 14/15(b). The entity must also obtain a signed “written release” from an individual before collecting his/her biometric identifier, see id.; in the employment context, BIPA specifically defines “written release” as “a release executed by an employee as a condition of employment.” 740 ILCS 14/10. Further, BIPA also requires a private entity to obtain consent before disclosing or disseminating an individual's biometric identifier to a third party. 740 ILCS 14/15(d). Finally, a private entity in possession of biometric identifiers must make publicly available a “retention schedule and guidelines” it uses for permanently destroying biometric identifiers it has collected after a certain time period. 740 ILCS 14/15(a).

         Treadwell alleges that PSI has violated and continues to violate BIPA by: (1) failing to inform him and other PSI employees in writing of the specific purpose and length of time for which their fingerprints are being collected and used; (2) failing to obtain a written release from him and other PSI employees before collecting their fingerprints; (3) failing to provide a publicly available retention schedule and guidelines for permanently deleting PSI employees' fingerprints; and (4) failing to obtain consent from PSI employees before disclosing their fingerprints to third parties. (See ECF No. 43 at ¶¶ 10, 43-45.) Treadwell claims he has been injured by PSI's interfering with his right to control his biometric data, denying him compensation for the retention and use of his biometric identifier, improperly disclosing his biometric identifier to third parties, including NOVAtime, and failing to provide him information regarding his biometric data to which he is entitled under BIPA. (See id. at ¶¶ 48-53.) Treadwell does not allege mental anguish as an injury. Treadwell is seeking statutory damages as well as declaratory and injunctive relief on behalf of himself and other similarly situated PSI employees for PSI's alleged violations of BIPA. (See id. at ¶ 95.)

         PSI moved to dismiss Treadwell's amended complaint, and the parties have fully briefed the motion. The Court also permitted Treadwell to submit a steady stream of supplemental authority, and PSI had the opportunity to respond to this supplemental authority. (See ECF Nos. 63, 69, 81, 82, 86, 88, 94, 98, 99, and 100.)


         “A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under federal notice-pleading standards, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 556). The Court “accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.” Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017).


         PSI moves to dismiss Treadwell's Amended Complaint on two grounds. First, PSI argues that Treadwell's claims for monetary damages under BIPA are preempted by the exclusive remedy provision in the Illinois Workers' Compensation Act (“IWCA”). (See Memo. in Support of Mot. to Dismiss, ECF No. 50, at 6-11.) Alternatively, PSI argues that Treadwell's BIPA claims are subject to either a one-year or two-year statute of limitations and that any possible claim outside these time limitations must be barred. (See id. at 11-20.) The Court handles each argument in turn.

         Both PSI's arguments require interpretation and application of Illinois law. The Court notes that, although enacted in 2008, BIPA has only somewhat recently become a source of litigation. The Illinois Supreme Court has only issued one opinion relating to BIPA, and that opinion does not address either issue presented by PSI's motion. See generally Rosenbach v. Six Flags Entm't Corp., 129 N.E.3d 1197 (Ill. 2019) (resolving statutory standing issue). Consequently, “[a]s a federal court sitting in diversity jurisdiction, [the Court's] task is to predict how the Illinois Supreme Court would decide the issues presented here…Where the Illinois Supreme Court has not ruled on an issue, decisions of the Illinois Appellate Court control, unless there are persuasive indications that the Illinois Supreme Court would decide the issue differently.” Nationwide Agribusiness Ins. Co. v. Dugan, 810 F.3d 446, 450 (7th Cir. 2015) (citations omitted).

         I. Illinois Workers' Compensation Act

         PSI argues that the IWCA preempts Treadwell's claims for statutory damages. Preemption is an affirmative defense. Baylay v. Etihad Airways P.J.S.C., 881 F.3d 1032, 1039 (7th Cir. 2018). A plaintiff need not plead around an affirmative defense, so for purposes of a Rule 12(b)(6) motion, a court may dismiss a claim based on an affirmative defense only when the plaintiff “plead[s] himself out of court by alleging (and thus admitting) the ingredients of a defense.” Chi. BldgDesign, PC v. Mongolian House Inc., 770 F.3d 610, 613-14 (7th Cir. 2014); Arnold v. JanssenPharmaceutica, Inc., 215 F.Supp.2d 951, ...

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