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Durbin v. Carrols Corp.

United States District Court, S.D. Illinois

January 13, 2020

HAILEY DURBIN, individually and on behalf of all others similarly situated, Plaintiff,


          Nancy J. Rosenstengel Chief U.S. District Judge.

         Pending before the Court is a Motion to Stay Briefing on Defendant's Motion to Compel Arbitration and to Allow Limited Discovery filed by Plaintiff Hailey Durbin (Durbin) (Doc. 17). For the reasons set forth below, the Court denies the motion.

         Factual & Procedural Background

         This action arises out of Durbin's employment with Defendant Carrols Corporation (“Carrols”), an operator of numerous Burger King franchises (Doc. 1 at 1). Specifically, Durbin argues that Carrols's collection of her fingerprints and the fingerprints of other employees of Carrols was a violation of employees' rights under the Illinois Biometric Information Privacy Act (“BIPA”) (Id.).

         Durbin was an employee of Carrols in Illinois (Doc. 1 at 7). Durbin alleges that as part of her employment, her fingerprints were scanned by Carrols and stored in at least one database maintained by Carrols (Id.). Durbin further alleges that she was required to scan her fingerprints at the beginning and end of each workday (Id.). As a condition of her employment, Durbin also executed the Agreement for Resolution of Disputes Pursuant to Binding Arbitration Between Carrols Corporation and Hailey N. Durbin (“Arbitration Agreement”) (Doc. 17, Ex. D). This agreement specifies that all disputes arising out of Durbin's employment with Carrols will be resolved through arbitration under current rules set by JAMS, a national arbitration association (Id. at 2). The few exceptions listed in the Arbitration Agreement include the caveat that “the parties reserve the right to go to court if they are faced with the risk of irreparable harm, such as the disclosure of confidential information” (Id.).

         In 2008, Illinois enacted BIPA, with the Illinois General Assembly finding that “[t]he public welfare, security, and safety will be served by regulating the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” 740 Ill. Comp. Stat. 14/5. BIPA requires that private entities seeking to collect individual biometric information must first obtain the written informed consent of the subject. 740 Ill. Comp. Stat. 14/15. Since the passage of BIPA, decisions of certain courts interpreting BIPA have found that some violations of the statute may raise the risk of irreparable harm, while other “bare procedural violations” may not raise any risk of material harm. Compare Sekura v. Krishna Schaumburg Tan, Inc., 115 N.E.3d 1080, 1095 (Ill.App.Ct. 2018) (finding that “disclosure [of biometric information] can create irreparable harm.”), with Rivera v. Google, Inc., 366 F.Supp.3d 988, 1004-05 (N.D. Ill. 2018) (finding that bare procedural violation of BIPA did not satisfy Article III concreteness requirement for standing).

         On November 4, 2019, Durbin filed this suit, alleging that Carrols's practices violated BIPA and violated the rights of Durbin and a class of Carrols's employees to privacy in their biometric information as set forth in BIPA (Doc. 1 at 2). Two days later, on November 6, 2019, Durbin also filed a complaint with the National Labor Relations Board (“NLRB Complaint”) challenging the Arbitration Agreement on the grounds that it did not note that employees retained the right to bring complaints before the NLRB arising out of alleged violations of the National Labor Relations Act (“NLRB”) (Doc. 17, Ex. B). On November 21, 2019, Carrols's counsel wrote to Durbin offering to delete the biometric information retained by Carrols (Doc. 22, Ex. 2). Durbin's counsel responded on the same day with a list of questions that it stated were necessary to assess counsel's offer to delete Durbin's biometric information (Doc. 22, Ex. 3). To date, Carrols still retains Durbin's biometric information (Doc. 22, pg. 12-13).

         On November 26, 2019, Carrols filed a Motion to Compel Arbitration and Dismiss Action pursuant to the Arbitration Agreement signed by the parties (“Motion to Compel”) (Doc. 13). On December 9, 2019, Durbin filed the instant motion, requesting (1) an extension of time until January 30, 2020, to respond; (2) a 90-day stay of Durbin's response pending decision on the NLRB Complaint; and (3) limited discovery in the form of specific interrogatories from the Carrols related to the storage and transmission of her biometric data (Doc. 17). Because Carrols did not oppose the extension of time, the Court granted the extension until January 30, 2020, and reserved ruling on issues (2) and (3) (Doc. 18).


         I. Durbin's Request for Limited Discovery

         A. Applicable Law

         The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., governs the interpretation of arbitration agreements in federal courts. The Supreme Court has explained that “the overarching purpose of the FAA . . . is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011). In light of this purpose, courts have consistently interpreted the FAA as establishing a federal policy favoring the broad validity and enforceability or arbitration agreements. E.g., Id. at 346; Kiefer Specialty Flooring v. Tarkett, Inc., 174 F.3d 907, 909 (7th Cir. 1999) (“[S]trong support for the federal policy favoring arbitration exists.”).

         Sections 3 and 4 of the FAA describe procedures through which federal courts implement arbitration agreements, stating that courts “shall” stay proceedings and order arbitration upon confirming the existence of an enforceable arbitration agreement that covers the dispute at hand. In determining whether parties formed an agreement to arbitrate and agreed to arbitrate particular issues, courts generally should apply ordinary state-law principles of contract interpretation. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). In practice, however, courts have held repeatedly that even threshold issues such as the arbitrability of the dispute may be subject to the arbitration if the language of a broadly-worded agreement specifically includes arbitrability and jurisdiction among the subjects delegated to the arbiter. In assessing whether parties have agreed to delegate the issue of arbitrability to an arbitrator, however, courts should not assume delegation unless there is “clear and unmistakable evidence” that the parties intended to arbitrate the issue of arbitrability. Id. Nevertheless, if the issue of arbitrability itself is not arbitrable, any doubts concerning the scope of arbitrable issues should be resolved by the court in favor of arbitration, and a district court cannot deny a request to arbitrate “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Kiefer Specialty Flooring, 174 F.3d at 909.

         Courts have not fully clarified the extent of discovery that may be permissible in order to assess arbitrability. Gore v. Alltel Communications, LLC, 666 F.3d 1027, 1032 n.1 (7th Cir. 2012) (declining to review the scope of a discovery order issued by district court before ruling on a motion to compel arbitration). However, any such discovery would have to comply with the provisions of the FAA requiring that decisions regarding the existence of applicable arbitration agreements be conducted “summarily, ” as well as “the unmistakably clear congressional purpose that the arbitration procedure . . . be speedy and not subject to delay and obstruction.” Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137, 142 (7th ...

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