Thakkar v. ProctorU Inc.

571 F.Supp.3d 927

Rutvik THAKKAR, William Gonigam, and Andrea Kohlenberg, individually and on behalf of all others similarly situated, Plaintiffs,

v.PROCTORU INC., Defendant.

Case No. 21-CV-2051

United States District Court, C.D. Illinois, Urbana Division.

Signed November 23, 2021

Max Stuart Roberts, Alec M. Leslie, Bursor & Fisher PA, New York, NY, Christopher Reid Reilly, Bursor & Fisher PA, Miami, FL, Carl Vincent Malmstrom, Wolf Haldenstein Adler Freeman & Herz LLC, Chicago, IL, for Plaintiffs.

Thomas Julian Butler, Caleb Collins Wolanek, Michal Erin Crowder, Maynard Cooper & Gale PC, Birmingham, AL, for Defendant.

ORDER

COLIN S. BRUCE, U.S. DISTRICT JUDGE

On March 12, 2021, Plaintiffs, Rutvik Thakkar, William Gonigam, and Andrea Kohlenberg, filed the instant suit, alleging violations of the Illinois Biometric Information Privacy Act ("BIPA") by Defendant, ProctorU, Inc. Plaintiffs filed an Amended Complaint (#18) on May 20, 2021. Defendant filed a Motion to Dismiss (#21) on June 3, 2021, and a Motion to Transfer Venue (#23) on June 7, 2021. On July 7, 2021, Plaintiffs filed Memorandums in Opposition (#29, 30) to both Motions, and on July 28, 2021, Defendant filed Unopposed Motions for Leave to File Reply Memorandums (#31, 32) in support of both its Motions. Plaintiffs have also filed Notices of Supplemental Authority (#34, 35) regarding the Motion to Dismiss.

For the following reasons, Defendant's Motion to Transfer Venue (#23) is GRANTED, and ruling on the Motion to Dismiss (#21) is reserved pending transfer.

I. BACKGROUND

The following background facts are taken from the allegations in the Amended Complaint (#18) and from the parties' briefs on the issue of venue.

Defendant ProctorU is a Delaware corporation with its principal place of business in Birmingham, Alabama. Defendant develops, owns, and operates an online test proctoring software, through which it provides remote proctoring services for test administrators in at least 45 states. Because its proctoring services are online, test-takers can access and use ProctorU's system from anywhere in the United States or internationally.

Plaintiffs are students, domiciled in Illinois, who used ProctorU. Specifically, Plaintiff Thakkar used ProctorU to take his Test of English as a Foreign Language ("TOEFL") online in January 2021. Thakkar had contracted with the Educational Testing Service ("ETS") to take the TOEFL, and ETS did not provide him with a choice as to what proctoring service he could use. Further, Thakkar was not made aware of any terms that would allow him to recoup his payment for the TOEFL if he did not consent to using ProctorU's services.

Plaintiff Gonigam used ProctorU to take online exams at the University of Illinois at Urbana-Champaign ("UIUC") from approximately June 2019 through August 2020. He also used ProctorU to take the Graduate Record Examination ("GRE") online in January 2021. Gonigam had contracted with UIUC to take classes and with ETS to take the GRE. Neither UIUC nor ETS offered Gonigam a choice as to what proctoring service he could use, nor was he made aware of any terms that would allow him to recoup any tuition payments or exam fees if he declined to consent to ProctorU's proctoring services.

Plaintiff Kohlenberg used ProctorU to take the Law School Admission Test ("LSAT") online in November 2020. She had contracted with the Law School Admissions Counsel ("LSAC") to take the LSAT. LSAC did not provide her with a choice as to what proctoring service she could use, and she was not made aware of any terms that would allow her to recoup any payment if she declined to consent to ProctorU's proctoring services.

Before taking any online exam proctored by ProctorU, test-takers must affirmatively consent to ProctorU's Terms of Service. First, a test-taker must create a ProctorU account, which requires the test-taker to agree to ProctorU's Terms of Service. In addition, before the commencement of a specific exam, the test-taker is presented with a prompt entitled "Exam Rules" that includes hyperlinks to ProctorU's Privacy Policy and Terms of Service. Before continuing to the exam, the test-taker must affirmatively check the box next to the statement: "I agree to the terms set forth in ProctorU's Privacy Policy and Terms of Service."

According to the record, Plaintiff Thakkar created a ProctorU account on December 28, 2017, first took a ProctorU-proctored exam on January 1, 2018, and again checked the box accepting ProctorU's Terms of Service on January 11, 2021, in advance of taking the TOEFL. Gonigam created a ProctorU account on December 28, 2017, first took an exam proctored by ProctorU on January 2, 2018, and again accepted the Terms of Service on January 21, 2021, in advance of taking the GRE. Kohlenberg created a ProctorU account on April 30, 2020, in order to complete an exam for an undergraduate class at Wheaton College, and she again accepted the Terms of Service on November 10, 2020, in advance of taking the LSAT.

At the time that Plaintiffs accepted ProctorU's Terms of Service in November 2020 through January 2021, the Terms consisted of a 4.5 page document that included 18 separate provisions each with a bolded heading. Paragraph 15, which consisted of two sentences following the bolded heading "Controlling Law and Jurisdiction," included a forum-selection clause: "All claims, legal proceedings, or litigation arising out of or in connection with or related to the Services will be brought solely in a court of competent jurisdiction in the State of Alabama, County of Jefferson."

During Plaintiffs' use of ProctorU, Defendant collected their biometrics, including eye movements, facial expressions and/or face geometry, and keystroke biometrics.

In relevant part, Illinois' BIPA provides:

(a) A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first....

(b) No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person's or a customer's biometric identifier or biometric information, unless it first:

(1) informs the subject or the subject's legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored;

(2) informs the subject or the subject's legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and

(3) receives a written release executed by the subject of the biometric identifier or biometric information or the subject's legally authorized representative.

740 Ill. Comp. Stat. 14/15.

Defendant never informed Plaintiffs, nor other Illinois test-takers,¹ of the length of time that their biometric information would be collected, stored, or used; did not have written, publicly available policies identifying its retention schedules or guidelines; failed to receive informed written consent from Plaintiffs for the collection and retention of their biometric information; and has in fact continued to retain biometrics beyond the intended purpose for collection.

II. ANALYSIS

Defendant moves to transfer the instant case, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Northern District of Alabama. In support of transfer, Defendant argues that Plaintiffs agreed to the Terms of Service, including a valid forum-selection clause that applies to their claims in this case and must be enforced under § 1404(a). Plaintiffs argue that the forum-selection clause is invalid because the Terms of Service are procedurally unconscionable and the clause itself is unreasonable, and that Defendant's motion should be denied because the private and public interest factors under § 1404(a) weigh against transfer.

Ordinarily, a court considering a § 1404(a) motion to transfer must evaluate and weigh both private and public interest factors to determine if transfer would serve "the convenience of parties and witnesses" and otherwise promote "the interest of justice." Atlantic Marine Construction Co., Inc. v. U.S. District Court for the Western District of Texas , 571 U.S. 49, 62-63, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013), quoting 28 U.S.C. § 1404(a).

Under this analysis, private interest factors include (1) the plaintiff's choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the parties; and (5) the convenience to the witnesses. Research Automation, Inc. v. Schrader-Bridgeport International, Inc. , 626 F.3d 973, 978 (7th Cir. 2010). Public interest factors include (1) docket congestion and likely speed to trial in the transferor and potential transferee forums; (2) each court's relative familiarity with the relevant law; (3) the respective desirability of resolving controversies in each locale; and (4) the relationship of each community to the controversy. Research Automation , 626 F.3d at 978.

However, when there is a valid forum-selection clause, the plaintiff's choice of forum "merits no weight" and the court should not consider arguments about the parties' private interests, which the court "must deem ... to weigh entirely in favor of the preselected forum." Atlantic Marine , 571 U.S. at 63-64, 134 S.Ct. 568. Therefore, "[w]hen the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a § 1404(a) motion be denied." Atlantic Marine , 571 U.S. at 62, 134...