462 F.Supp.3d 873
N.D. Ill.2020Background
- Plaintiff Shanice Kloss (Illinois resident) alleges Acuant, Inc. (a Delaware corporation doing business in Illinois) used its “Acuant Face” biometric software in a mobile app to capture, store, and disseminate her facial geometry/biometric data without informed consent.
- Kloss claims Acuant lacks a publicly available retention/destruction policy.
- Kloss filed a class action in Cook County; Acuant removed under CAFA and Kloss filed a First Amended Complaint alleging violations of BIPA §§ 15(a), 15(b), and 15(d).
- Kloss seeks statutory damages ($5,000 per willful/reckless violation; $1,000 per negligent violation) and injunctive relief.
- Acuant moved to dismiss under Rule 12(b)(6), arguing (among other things) BIPA inapplicability to vendors, statutory pleading defects, and constitutional infirmity; the court considered Article III standing for § 15(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing for BIPA § 15(a) public-retention rule | Kloss: Acuant failed to maintain a publicly available retention/destruction schedule as § 15(a) requires | Acuant: § 15(a) violation does not confer a concrete, particularized injury | Court: § 15(a) claim does not create Article III injury; severed and remanded § 15(a) claim to state court for lack of subject‑matter jurisdiction |
| Sufficiency of pleading for BIPA § 15(b) (collection without informed consent) | Kloss: Acuant collected/stored her biometric data via its mobile app without consent | Acuant: Complaint is conclusory, lacks specific facts (when, how, plaintiff’s relationship to Acuant) | Court: Dismissed § 15(b) claim for failure to plead sufficient factual detail under Rule 8/12(b)(6) |
| Sufficiency of pleading for BIPA § 15(d) (dissemination to third parties) | Kloss: Acuant disseminated her biometric data to third-party databases (alleged on information and belief) | Acuant: Allegation is speculative and lacks factual support of actual dissemination | Court: Dismissed § 15(d) claim for failure to state a claim (conclusory "information and belief" allegations insufficient) |
| Other defenses: applicability to vendors, constitutionality, scienter/negligence pleading | Kloss: alleges statutory damages for willful/reckless or negligent violations | Acuant: BIPA may not apply to vendors/no direct contact; BIPA is special legislation; plaintiff fails to plead intent/negligence | Court: Declined to reach these arguments because claims were dismissed on pleading and standing grounds |
Key Cases Cited
- Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (Sup. Ct.) (framework for determining whether a statutory violation yields a concrete Article III injury)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (Sup. Ct.) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (Sup. Ct.) (pleading must contain factual content permitting reasonable inference of liability)
- Brooks v. Ross, 578 F.3d 574 (7th Cir.) (complaint cannot merely parrot statutory language; must provide factual grounding)
- Alam v. Miller Brewing Co., 709 F.3d 662 (7th Cir.) (accept factual allegations as true at motion to dismiss)
- League of Women Voters of Chicago v. City of Chicago, 757 F.3d 722 (7th Cir.) (draw reasonable inferences in plaintiff's favor at pleading stage)
- McReynolds v. Merrill Lynch & Co., 694 F.3d 873 (7th Cir.) (Rule 12(b)(6) tests complaint sufficiency, not merits)
- Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279 (N.D. Ill.) (example of dismissal where plaintiff’s dissemination allegations were only "information and belief")
- The Northern League, Inc. v. Gidney, 558 F.3d 614 (7th Cir.) (remand for lack of subject‑matter jurisdiction may be ordered at any time)