Trio v. Turing Video, Inc.

1

SANDRA TRIO, individually and on behalf of all others similarly situated, Plaintiff, v. TURING VIDEO, INC., Defendant.

No. 1:21-cv-04409

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

September 26, 2022

MEMORANDUM OPINION AND ORDER

John Robert Blakey United States District Judge.

Plaintiff Sandra Trio filed this putative class action lawsuit in state court alleging that Defendant Turing Video, Inc. (“Turing”) violated the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq. when it collected, stored, and disseminated Plaintiff's biometric information. [1-1]. Invoking jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), [1], Turing removed the lawsuit to this Court and now seeks dismissal of Plaintiff's complaint pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6), [27]. For the reasons explained below, the Court denies Turing's motion [27].

I. Facts

The following facts are taken from Plaintiff's complaint [1-1], and are assumed to be true for purposes of Turing's amended motion to dismiss, [27].

Defendant Turing Video, Inc., a California corporation with its principal place of business in California, sells products integrated with artificial intelligence, which provide security and health solutions to companies across an array of industries. Id. ¶¶ 1, 25. Specific to this lawsuit, Turing produces and sells various technologies that allow businesses to safeguard their employees and customers and assist them in complying with COVID-19 restrictions. Id. ¶ 2. Chief among these products is the Turing Shield, a kiosk that allows Turing's customers to screen their employees for COVID-19. Id. ¶¶ 3, 42.

The Turing Shield works by scanning the biometric data of its users. Id. ¶ 42. First, the Turing Shield prompts a user to complete a health questionnaire on the user's phone. Id. ¶ 4. Once the user completes the questionnaire, a QR code appears on the user's phone that the Turing Shield then scans to initiate a temperature screening. Id. To collect a temperature screening, users stand in front of the Turing Shield's camera, which collects the user's facial geometry and signals an alert when the Turing Shield's “artificial intelligence algorithm” recognizes the user. Id. ¶ 5. From there, the algorithm locates the user's forehead and signals the Turing Shield's built-in thermal sensor to collect the user's forehead temperature. Id. The Turing Shield's facial recognition software can also detect whether the user is wearing a mask. Id. The Turing Shield then stores the data collected from the COVID-19 screening in the Turing database, which can store up to 20 million “faces.” Id. ¶ 6.

After the Turning Shield collects and stores a user's data in its database, it analyzes the data it collected to determine if the user passed the COVID-19 screening process. Id. ¶ 7. If the user provided satisfactory results for the health questionnaire, temperature screening, and mask detection, then the Turing Shield prints a badge that indicates the user is cleared to enter the work environment. Id. For a negative screening result, the Turing Shield prints a badge indicating the user has failed the screening. Id.

Turing's databases store the individuals' facial geometry scans, along with the users' temperature, health questionnaire responses, and face mask detection results, to track and report individuals who may have been exposed to COVID-19. Id. ¶ 43. Turing's customers can access the data collected by the Turing Shield by subscribing to Turing's Data Access Management Platform, a software program that provides Turing's customers with centralized monitoring and reporting to identify users of the Turing Shield who may have been exposed to COVID-19. Id. ¶ 8. The software program is cloud-based, which means data collected and obtained from the Turing Shield is transmitted to Turing's servers and other third parties who host that data such as Amazon Web Services. Id. ¶ 44. Turing accesses its servers for various purposes, including support services for its customers. Id. ¶ 45.

From April 2019 to June 2021, Plaintiff worked as a cake decorator for New Albertson's, Inc. d/b/a Jewel-Osco at a location in Algonquin, Illinois. Id. ¶ 53. While employed by Jewel-Osco, Plaintiff was required to use the Turing Shield each time she began her workday as part of the store's COVID-19 screening process. Id. ¶¶ 54, 56. Turing stored the biometric data obtained from Plaintiff's use of the Turing Shield in its databases, and later disseminated it to third parties such as Amazon Web Services. Id. ¶¶ 55, 63. Turing never informed Plaintiff of any limits on the purpose of using such information or about any limits on the length of time for which Turing would collect, store, use, and disseminate her biometric data. Id. ¶ 57. Plaintiff was never provided with, nor did she ever sign, a written release authorizing Turing to collect, store, use, or disseminate her biometric data. Id. ¶ 58.

On July 2, 2021, Plaintiff filed this lawsuit in Illinois state court, alleging that Turing violated Section 15(b) of BIPA when it failed to obtain her informed written consent and release prior to collecting her biometric identifiers and biometric information (Count I) and violated Section 15(d) of BIPA when it disseminated her biometric identifiers and biometric information to third parties without first obtaining her consent (Count II). Id. ¶¶ 78-87, 88-96. Plaintiff, individually and on behalf of a class of all other individuals in Illinois who had their biometric data collected, stored, used, and disseminated by Turing, seek declaratory and equitable relief, statutory damages, and reasonable attorneys' fees and other expenses provided for under BIPA. Id. ¶¶ 68, 87, 96.

After timely removing this lawsuit to this Court on August 18, 2021, [1], Turing moves to dismiss Plaintiff's claims pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure, [27].

II. Legal Standard

A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). If a defendant challenges the facial sufficiency of the allegations regarding subject matter jurisdiction, the Court must accept as true all well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009).

But where the complaint is “facially sufficient but external facts call the court's jurisdiction into question, we ‘may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'” Taylor v. McCament, 875 F.3d 849, 853 (7th Cir. 2017) (quoting Apex Digital, Inc., 572 F.3d at 444)).

A motion to dismiss under Rule 12(b)(2) challenges the Court's personal jurisdiction over a defendant. Fed.R.Civ.P. 12(b)(2). Under Rule 12(b)(2), a complaint need not include facts alleging personal jurisdiction; but once the defendant moves to dismiss the complaint under Rule 12(b)(2), the plaintiff bears the burden of demonstrating the existence of jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). Where, as here, the Court rules on a Rule 12(b)(2) motion without an evidentiary hearing, the plaintiff need only establish a prima facie case of personal jurisdiction. Curry v. Revolution Labs., LLC, 949 F.3d 385, 392-93 (7th Cir. 2020); GCIU-Employer Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1023 (7th Cir. 2009). Where the defendant “has submitted affidavits or other evidence in opposition to the exercise of jurisdiction,” however, “the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction.” Purdue Research Found., 338 F.3d at 783. The Court accepts as true any facts in affidavits that do not conflict with the complaint or the plaintiff's submissions, Curry, 949 F.3d at 393, but the Court must resolve any disputes concerning the relevant facts in the plaintiff's favor. Purdue Research Found., 338 F.3d at 782-83.

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint. Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), a complaint must allege “sufficient factual matter” 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 pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). In evaluating the complaint, this Court draws all reasonable inferences in the plaintiff's favor and accepts as true all well-pled allegations; the Court need not, however, accept legal conclusions or conclusory allegations. McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 556 U.S. at 681). Unlike motions to dismiss under Rule 12(b)(1) and 12(b)(2), however, the Court may not consider matters outside of the pleadings. See Geinosky v. City of Chi., 675 F.3d 743, 746 n.1 (7th Cir. 2012) (“A motion under Rule 12(b)(6) can be based only on the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.”).

III. Analysis

Turing moves to dismiss Plaintiff's complaint: under Rule 12(b)(1), arguing that her claims are preempted under Section 301 of the Labor Management Relations Act (“LMRA”), [28] at 8-12; under Rule 12(b)(2) arguing that the Court...