67578909v.7 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DAWON A. WORDLAW, on behalf of herself 

and all others similarly situated, 

Plaintiffs, 

v. 

ENTERPRISE LEASING COMPANY OF 

CHICAGO, LLC; ENTERPRISE HOLDINGS, 

INC., 

Defendants. 

Case No. 20-cv-03200 

Hon. Manish S. Shah 

Hon. Magistrate Gabriel A. Fuentes 

DEFENDANTS ENTERPRISE LEASING COMPANY OF CHICAGO, LLC AND 

ENTERPRISE HOLDINGS, INC.’S MEMORANDUM OF LAW 

IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 1 of 22 PageID #:240
i 

67578909v.7 

TABLE OF CONTENTS 

INTRODUCTION .......................................................................................................................... 1

THE COURT’S ORDER ................................................................................................................ 2

LEGAL STANDARD ..................................................................................................................... 4

RECONSIDERATION IS APPROPRIATE AND NECESSARY................................................. 5

I. PLAINTIFF’S COMPLAINT ENGAGES IN IMPROPER GROUP PLEADING 

IN ACCORDANCE WITH SEVENTH CIRCUIT LAW .................................................. 5

II. THE COMPLAINT DOES NOT PLAUSIBLY ALLEGES ENTERPRISE 

HOLDINGS “DIRECTLY” VIOLATED BIPA ................................................................ 6

A. “Control” Of “Work Environment” Is Not The Relevant Inquiry .......................... 6

B. Plaintiff’s Two Sole Conclusory Allegations Regarding Her Work 

Environment Are Not Entitled To Deference ......................................................... 7

C. Plaintiff’s Two Sole Conclusory Allegations Regarding Her Work 

Environment Are Directly Contradicted By The Court’s Rejection Of 

Enterprise Holdings’ Code Of Conduct .................................................................. 9

III. PLAINTIFF’S “ALTERNATIVE THEORIES” OF LIABILITY ARE 

UNSUPPORTED BY THE LAW AND FACTS ............................................................. 11

A. Direct-Participant Liability ................................................................................... 11

B. Joint-Employer ...................................................................................................... 13

CONCLUSION ............................................................................................................................. 15

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 2 of 22 PageID #:241
ii 

67578909v.7 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Aiello v. Invision Mktg. Sols., 

No. 17 C 985, 2019 WL 1875354 (N.D. Ill. Apr. 26, 2019) ....................................................15 

Aiello v. S. Wine & Spirits of Am., Inc., 

2019 WL 6210938 (N.D. Ill. Nov. 21, 2019) ..........................................................................15 

Andrews v. Kowa Printing Corp., 

217 Ill. 2d 101 (Ill. 2005) .........................................................................................................14 

Bancorpsouth, Inc., v. Fed. Ins. Co., 

873 F.3d 582 (7th Cir. 2017) ...................................................................................................10 

Bank of Am., N.A. v. Knight, 

725 F.3d 815 (7th Cir. 2013) .....................................................................................................5 

Boyce v. SSP Am. MDW, LLC, 

2019 WL 3554153 (N.D. Ill. July 31, 2019) ........................................................................8, 15 

Brunner v. Liautaud, 

2015 WL 1598106 (N.D. Ill. Apr. 8, 2015) .........................................................................8, 15 

Dugan v. Sears, Roebuck & Co., 

113 Ill. App. 3d 740, 447 N.E.2d 1055, on reh'g sub nom. by Dugan v. Sears, 

Roebuck & Co., 113 Ill. App. 3d 740, 454 N.E.2d 64 (1983) .................................................13 

In re Enter. Rent-A-Car Wage & Hour Employment Practices Litig., 

683 F.3d 462 (3d Cir. 2012).................................................................................................9, 14 

Forsythe v. Clark USA, Inc., 

224 Ill. 2d 274 (Ill. 2007) .........................................................................................................12 

Heard v. Becton, Dickinson & Co., 

440 F. Supp. 3d 960 (N.D. Ill. 2020) (Pallmeyer, J.) .............................................................6, 7 

Holmes v. United Airlines, Inc., 

No. 10 C 8085, 2012 WL 245136 (N.D. Ill. Jan. 25, 2012) ....................................................12 

Ivery v. RMH Franchise Corp., 

280 F. Supp. 3d 1121 (N.D. Ill. 2017) .......................................................................8, 9, 14, 15 

Kemper v. Deutsche Bank AG, 

911 F.3d 383 (7th Cir. 2018) ...................................................................................................13 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 3 of 22 PageID #:242
iii 

67578909v.7 

Limestone Dev. Corp. v. Vill. of Lemont, Ill., 

520 F.3d 797 (7th Cir. 2008) .....................................................................................................5 

McCauley v. City of Chicago, 

671 F.3d 611 (7th Cir. 2011) .....................................................................................................8 

Miller v. Safeco Ins. Co. of Am., 

683 F.3d 805 (7th Cir. 2012) .....................................................................................................4 

Namuwonge v. Kronos, Inc., 

418 F. Supp. 3d 279 (N.D. Ill. 2019) .........................................................................................7 

Payton v. Cnty of Kane, 

308 F.3d 673 (7th Cir. 2002) .....................................................................................................5 

Peirick v. Ind. Univ.–Purdue Univ. Indianapolis Athletics Dep't, 

510 F.3d 681 (7th Cir. 2007) .....................................................................................................4 

Richardson v. Help at Home, LLC, 

2017 WL 2080448 (N.D. Ill. May 15, 2017) (Shah, J.) ...........................................................15 

Rowe v. State Bank of Lombard, 

125 Ill. 2d 203 (Ill. 1988) .........................................................................................................13 

Santora v. Starwood Hotel & Resorts Worldwide, Inc., 

2007 WL 3037098 (N.D. Ill. Oct. 16, 2007)............................................................................13 

Scheneider v. Cornerstone Pints, Inc., 

148 F. Supp. 3d 690 (N.D. Ill. 2015) .......................................................................................14 

Scottsdale Ins. Co. v. Subscription Plus, Inc., 

299 F.3d 618 (2002) .................................................................................................................13 

Shah v. Littelfuse Inc., 

2013 WL 1828926 (N.D. Ill. Apr. 29, 2013) .................................................................8, 14, 15 

Swanson v. Citibank, N.A., 

614 F.3d 400 (7th Cir. 2010) .....................................................................................................6 

United States v. Ligas, 

549 F.3d 497 (7th Cir. 2008) ...............................................................................................4, 12 

Vill. of Winfield v. Ill. State Labor Relations Bd., 

678 N.E.2d 1041 (Ill. 1997) ...............................................................................................14, 15 

Zurich Capital Mkts. Inc. v. Coglianese, 

383 F. Supp. 2d 1041 (N.D. Ill. 2005) .......................................................................................4 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 4 of 22 PageID #:243
iv 

67578909v.7 

Statutes 

740 ILCS 14/15 ..........................................................................................................................6, 13 

28 U.S.C. § 1292(b) .......................................................................................................................15 

Other Authorities 

Fed. R. Civ. P. 54(b) ........................................................................................................................4 

Restatement (Third) of Torts .........................................................................................................13 

Rule 8 ...............................................................................................................................................8 

Rule 11 .....................................................................................................................................1, 5, 9 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 5 of 22 PageID #:244
67578909v.7 

INTRODUCTION 

Reconsideration of the Court’s December 21, 2020 Memorandum Opinion and Order 

(“Order,” ECF No. 30) is respectfully necessary here for several reasons—particularly in light of 

the Court’s holding, in dicta, as to the viability Plaintiff’s “alternative theories” of liability under 

BIPA vis-à-vis Enterprise Holdings, a holding company which was never Plaintiff’s employer, 

and had no role in the timekeeping system. 

The Court respectfully: (1) misapplied the law for so-called “direct liability”; (2) 

incorrectly credited Plaintiff’s allegations that Enterprise Holdings “controlled” Plaintiff’s workenvironment, which are neither specific, nor factual, but rather legal conclusions based solely on 

allegations regarding Enterprise Holdings’ Code of Conduct (“Code”)—which represented the 

entire factual basis for Plaintiff’s inclusion of Enterprise Holdings as a Defendant;1 (3) 

misapplied the law for Plaintiff’s alternative theories of liability, i.e., direct participant and jointemployer; and (4) did not apply the factors necessary to sustain a claim under those theories, 

which have no factual basis in the Complaint. 

The Order’s central holdings also undermine one another. In holding that the Complaint 

plausibly alleges Enterprise Holdings directly violated BIPA, the Court relied on Plaintiff’s 

counsel’s certification under Rule 11 that sufficient evidence exists to claim that both Defendants 

collected Plaintiff’s biometric information. (Id. at 8). Yet, the Court only considered Plaintiff’s 

alternative theories of liability because “[P]laintiff acknowledged that discovery may later reveal 

that Enterprise Holdings did not directly collect, retain, and disclose biometric data.” (Id. at 12). 

Thus, the Court held on the one hand that it must trust Plaintiff’s Rule 11 certification that the 

1

 To be sure, Plaintiff’s amended complaint solely added allegations relating to the Code in an attenuated 

attempt to state a claim against Enterprise Holdings, after Plaintiff was confronted with Defendant’s original motion 

to dismiss and a Rule 11 letter at the outset of the litigation indicating that Enterprise Holdings was an improper 

Defendant. Despite the Court’s complete rejection of the Code, Plaintiff’s claim perplexingly survived. 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 6 of 22 PageID #:245
2 

67578909v.7 

allegations in the Complaint are not frivolous, but on the other hand, unnecessarily considered 

these theories of liability because Plaintiff may have run afoul of Rule 11. (Id. at 8).2

More importantly, the Court’s unnecessary holding, in dicta, regarding Plaintiff’s 

alternative theories may have wide-reaching ramifications for Illinois companies already 

subjected to countless BIPA class actions, absent any actual damage. Specifically, the Court’s 

holding may subject corporate entities who had nothing to do whatsoever with the collection, 

capture, or possession of information—the operative actions in BIPA—to costly litigation, 

discovery, and significant statutory damages, regarding a subsidiaries’ timekeeping system for 

their own employees. Such a result has no basis in the statutory text and ignores the black-letter 

principles of corporate structure. More so, the Court’s holding leaves the door open to proceed 

on such a claim where, like here, Plaintiff has not alleged any specific, factual support that the 

entity: (1) ever employed her; (2) had any role in the timekeeping system; or (3) actively 

collected or captured her information. 

Rather an individual, like Plaintiff, may proceed on a claim against such an entity based 

on nothing more than factually unsupported, conclusory allegations of “control” of “work 

environment”—words which are repeated frequently in the Order as the crucial inquiry under 

BIPA—despite not appearing a single time in the BIPA’s text. Accordingly, the Court should 

reconsider and reverse its Order.3

THE COURT’S ORDER 

For relevant purposes of this Motion, the Court’s Order held the following: First, there 

was “no impermissible group pleading” where Plaintiff “plans to prove that both defendants 

2

 This is particularly concerning because the Court reached this conclusion despite acknowledging that 

Plaintiff “is currently unable to allege which [Defendant] in particular installed the timekeeping system.” (Id. at 8). 

3

 In the alternative, Defendants respectfully submit that the Court should certify the questions presented 

contained in Defendants’ Motion To Certify Questions For Appeal, filed concurrently herewith. 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 7 of 22 PageID #:246
3 

67578909v.7 

violated BIPA, even though she is currently unable to allege which one in particular installed and 

controlled the timekeeping system.” The Court reached this conclusion despite acknowledging 

that “the Complaint does not distinguish between the two defendants.” (Order at 3, 7-8). 

Second, the Complaint plausibly alleged that Enterprise Holdings “directly collected, 

possessed, and disseminated her fingerprints” noting that the “overarching inquiry” is “whether 

Enterprise Holdings was sufficiently involved in the Cook County facility’s fingerprinttimekeeping system.” (Id. at 10-11) (emphasis added). In reaching this conclusion, the Court 

rejected Plaintiff’s “heavy reliance” on the Code as “misguided,” “largely a distraction,” and 

concluded that it: (1) “does not suggest that Enterprise Holdings controls each individual 

subsidiary, nor does it plausibly show that Enterprise Holdings was responsible for the 

timekeeping system” and; (2) does not plausibly support that “Enterprise Holdings directed and 

managed the biometric timekeeping system.” (Id. at 11-12, 14). 

Despite this, the Court found that “[Plaintiff’s] actual allegations about her work 

environment” were plausible and sufficient allegations. (Id. at 12.) Specifically, the Court 

credited the allegations that Enterprise Holdings “‘exercised primary, if not exclusive, control 

over’ Enterprise Chicago’s practices ‘with respect to employee privacy matters and other 

employment conditions’” and that “‘her work environment, including . . . employee timekeeping, 

employee privacy, employee discipline, and the scope of acceptable behavior were controlled’ by 

Enterprise Holdings.” (Id. at 12) (quoting Compl. ¶¶ 22, 26)). The Court concluded that “these 

are specific factual statements that, at this stage, must be accepted as true.” (Id. at 12). The 

Court held that “if Enterprise Holdings controlled employee timekeeping and privacy 

matters...then it’s plausible that Enterprise Holdings administrated the timekeeping system and 

unlawfully collected her fingerprint scans.” (Id. at 12-13). 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 8 of 22 PageID #:247
4 

67578909v.7 

Third, the Court noted, in dicta, that Plaintiff would not be precluded from pursuing a 

claim against Enterprise Holdings on direct-participant or joint-employer theories because 

Plaintiff “has alleged that Enterprise Holdings significantly controlled her work environment in 

several important ways.” (Order at 13-14).4 The Court indicated that it only reached this issue 

“because plaintiff acknowledges that discovery may reveal that Enterprise Holdings did not 

directly collect, retain, and disclose biometric data.” (Id. at 13). Further, this holding was made 

only after the Court rejected Plaintiff’s reliance on the Code. (See id. at 14). The Court 

concluded Plaintiff “will have to rely on other evidence specifically showing that Enterprise 

Holdings authorized or directed the timekeeping policy, or that it was so involved with the dayto-day that it was a joint-employer.” (Id. at 14). 

LEGAL STANDARD 

Courts have broad authority to reconsider interlocutory orders. See Peirick v. Ind. Univ.–

Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 694 n. 5 (7th Cir. 2007). Interlocutory 

orders “are ‘subject to revision at any time before the entry of judgment adjudicating all the 

claims.’” Zurich Capital Mkts. Inc. v. Coglianese, 383 F. Supp. 2d 1041, 1045 (N.D. Ill. 2005) 

(quoting Fed. R. Civ. P. 54(b)). “A district court may reconsider a prior decision when there has 

been a significant change in the law or facts since the parties presented the issue to the court, 

when the court misunderstands a party's arguments, or when the court overreaches by deciding 

an issue not properly before it.” United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008). A 

4

 The Court also indicated, in dicta, that the text of BIPA “does not close the door on traditional theories of 

agency liability” or “vicarious liability.” Id. at 13 n. 2. However, the Court is mistaken that these issues were ever 

raised or briefed by the Parties. Plaintiff’s Response only raised direct-participant and joint-employer alternative 

theories. Accordingly, the Court erred in reaching the issue of whether “traditional theories of agency,”(in general 

and as opposed to the specific issues briefed by the Parties) could apply to BIPA, as “an issue not properly before 

it,” Ligas, 549 F.3d at 501. Further, the Court did not analyze these theories in the context of the Complaint. 

Accordingly, this Motion does not address this holding. However, Defendants would also respectfully submit that 

such theories also have no basis in BIPA, nor are there any allegations in the Complaint supporting such theories. 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 9 of 22 PageID #:248
5 

67578909v.7 

motion to reconsider “enables the court to correct its own errors and thus avoid unnecessary 

appellate procedures.” Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012). 

RECONSIDERATION IS APPROPRIATE AND NECESSARY 

I. PLAINTIFF’S COMPLAINT ENGAGES IN IMPROPER GROUP PLEADING IN 

ACCORDANCE WITH SEVENTH CIRCUIT LAW 

Seventh Circuit law is clear that a “defendant should not be forced to undergo costly 

discovery unless the complaint contains enough detail, factual or argumentative, to indicate that 

the plaintiff has a substantial case.” Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520 F.3d 797, 

802–03 (7th Cir. 2008). “[T]o bring a valid case, a plaintiff must allege that a defendant—the 

very defendant sued—has somehow wronged her in a legally cognizable way.” Payton v. Cnty 

of Kane, 308 F.3d 673, 678 (7th Cir. 2002) (emphasis added). The Order cited Bank of Am., N.A. 

v. Knight, 725 F.3d 815 (7th Cir. 2013), as grounds to hold that the Complaint does not engage in 

improper group pleading. However, Knight affirmed dismissal with prejudice under almost 

identical circumstances here. The Seventh Circuit held: 

A contention that “the defendants looted the corporation”—without any details about 

who did what—is inadequate. Liability is personal. An allegation that someone looted a 

corporation does not propound a plausible contention that a particular person did 

anything wrong. The Rules of Civil Procedure set up a system of notice pleading. Each 

defendant is entitled to know what he or she did that is asserted to be wrongful. A 

complaint based on a theory of collective responsibility must be dismissed. 

Id. at 818 (emphasis added). The Order notes that “the complaint does not distinguish between 

the two defendants in its central allegations.” (Order at 3). Thus, Knight mandates dismissal. 

To be clear, this is not a matter of pleading facts in the alternative. Here, Plaintiff has 

pled zero facts that would plausibly state a claim, “direct” or otherwise. The Complaint also 

offers no specific, factual allegations that could plausibly suggest that Enterprise Holdings had 

any “control” over her “work environment,” from which the Court could plausibly conclude that 

Enterprise Holdings directly and actively collected or captured her information. See infra. Nor 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 10 of 22 PageID #:249
6 

67578909v.7 

could she within the confines of Rule 11 where: (1) Plaintiff was a bus driver at a location 

operated by Enterprise Leasing and was never employed by Enterprise Holdings; (2) alleges that 

Enterprise Leasing signed her paychecks, (see Compl. ¶ 26); and (3) Plaintiff admitted, and the 

Court acknowledged, that Plaintiff is unaware of who allegedly collected her biometric 

information. See infra § II(A)-(C) & III(B). This a far-cry from “‘a story that holds together.’” 

(Order at 10) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)). 

II. THE COMPLAINT DOES NOT PLAUSIBLY ALLEGES ENTERPRISE 

HOLDINGS “DIRECTLY” VIOLATED BIPA 

First, the Court misapplied the standard for direct liability under BIPA, by applying a 

“control” inquiry, in contravention of the plain language of BIPA. Even accepting Plaintiff’s 

conclusory allegations as true, they do not, without more, lead to the plausible conclusion that 

Enterprise Holdings actively collected, captured, or possessed Plaintiff’s information. Second, 

the allegations of the Complaint upon which the Court based its holding, i.e., that Enterprise 

Holdings “controlled her work environment” are not allegations of specific fact, but rather legal 

conclusions that should have been afforded no weight by the Court. Third, the Court’s 

acceptance of these allegations directly contradicts the Court’s rejection of the Code. 

A. “Control” Of “Work Environment” Is Not The Relevant Inquiry 

The Court noted that the “overarching inquiry” as to whether Enterprise Holdings 

“directly collected, possessed, and disseminated her fingerprints” is whether it “was sufficiently 

involved in the Cook County facility’s fingerprint-timekeeping system” and “controlled 

employee timekeeping and privacy matters at the Cook County location.” (Order at 11). These 

are not the correct inquiries. 

As discussed in Defendants’ Motion and Reply, BIPA’s regulations apply only to entities 

that actively collect, capture, purchase, receive through trade, or otherwise obtain biometric data 

or possess biometric data. See Heard v. Becton, Dickinson & Co., 440 F. Supp. 3d 960, 965-66 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 11 of 22 PageID #:250
7 

67578909v.7 

(N.D. Ill. 2020) (Pallmeyer, J.) (“The court concludes that for Section 15(b)'s requirements to 

apply, an entity must, at a minimum, take an active step to ‘collect, capture, purchase, receive 

through trade, or otherwise obtain’ biometric data.”) (emphasis added); see also Namuwonge v. 

Kronos, Inc., 418 F. Supp. 3d 279, 286 (N.D. Ill. 2019) (same).5

The question of whether the Complaint plausibly alleges that Enterprise Holdings, 

directly and actively, collected, captured, or possessed Plaintiff’s information is a separate 

question from the alternative theories argued by Plaintiff. Indeed, the Court acknowledged that 

these inquiries are separate, but nonetheless disregarded this distinction in its analysis of direct 

liability under BIPA. (See Order at 11-13). Here, Plaintiff has not alleged any facts plausibly 

suggesting Enterprise Holdings actively collected, captured, or possessed Plaintiff’s information. 

Rather, the Court based its holding solely on mere allegations regarding Enterprise 

Holdings purported “control” of Plaintiff’s “work environment.” (Order at 12) (citing Compl. ¶¶ 

22, 26)). Plaintiff’s allegations say nothing as to whether Enterprise Holdings ever collected, 

captured, or possessed Plaintiff’s information, much less that it “actively” did so. See Heard,

440 F. Supp. 3d at 966. As acknowledged by the Court in reaching its conclusion, these 

allegations would only suggest, at most, that “Enterprise Holdings directed and managed the 

biometric timekeeping at the Cook County facility.” (See Order at 12). However, this is not the 

standard. Indeed, BIPA does not include the words “control,” “direct,” or “manage” whatsoever. 

B. Plaintiff’s Two Sole Conclusory Allegations Regarding Her Work 

Environment Are Not Entitled To Deference 

The Court relied solely on two allegations in Plaintiff’s Complaint, finding that the 

following were “specific factual statements that, at this stage, must be accepted as true” and that 

these allegations, alone, were sufficient: 

5

 The Court’s Order did not address Defendants’ argument in this regard, or the authority cited in support. 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 12 of 22 PageID #:251
8 

67578909v.7 

22. Thus, on information and belief, at all relevant times Defendant Enterprise Holdings, 

Inc. has exercised primary, if not exclusive, control over its subsidiaries’, including 

Defendant Enterprise Leasing Company of Chicago, LLC’s, practices with respect to 

employee privacy matters and other employment conditions. 

*** 

26. While Plaintiff received her paychecks from Defendant Enterprise Leasing Company 

of Chicago, LLC, the conditions of her work environment, including matters pertaining to 

employee timekeeping, employee privacy, employee discipline, and the scope of 

acceptable employee behavior, were controlled by Defendant Enterprise Holdings, Inc. 

(Order at 12) (citing Compl. ¶¶ 22, 26)). 

These allegations are not specific facts, but rather legal conclusions. The Seventh Circuit 

is clear that courts should only “accept the well-pleaded facts in the complaint as true, but legal 

conclusions and conclusory allegations merely reciting the elements of the claim are not entitled 

to this presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).6

 Moreover, Plaintiff’s allegations of “control” are not the kinds of specific fact 

allegations that satisfy Rule 8. For example, in Ivery v. RMH Franchise Corp., the court 

explained that specific facts must be alleged to demonstrate “control”: 

 [T]he amended complaint includes no allegations that RMH Franchise . . . had any 

authority to direct RMH Illinois to enter into such arrangements or to control the 

activities of RMH Illinois employees. It does not allege that RMH Franchise hired Ivery 

or had the authority to fire her. There are no allegations that RMH Franchise set Ivery's 

work schedule, directly supervised her day-to-day work as an AM, or issued her payroll 

checks. These are the types of allegations that allow courts to draw reasonable 

inferences that an entity “controls” working conditions. 

280 F. Supp. 3d 1121, 1131 (N.D. Ill. 2017) (emphasis added). In other words, “control” is a 

legal conclusion which must be supported by specific and factual allegations regarding the level 

of involvement over aspects of the work environment. Id.7 Here, the Complaint offers no 

6 See also Shah v. Littelfuse Inc., 2013 WL 1828926, at *3 (N.D. Ill. Apr. 29, 2013) (“[T]he Court will 

‘excise[ ] [legal conclusions and conclusory allegations] not entitled to the presumption’ and then determine 

‘whether the remaining factual allegations ‘plausibly suggest an entitlement to relief.’”) (citations omitted). 

7

 Courts in this District unanimously support this proposition. See, e.g., Brunner v. Liautaud, 2015 WL 

1598106, at *4 (N.D. Ill. Apr. 8, 2015) (dismissing complaint and noting that “[t]he Plaintiffs have seemingly 

exhausted every synonym for the term ‘control’ when alleging [defendant's] influence over Jimmy John's Sandwich 

Shop franchisees. However, the Plaintiffs have not specifically pled distinct facts that firmly establish 

[defendant's] control over employees' work schedules.”) (emphasis added)); Boyce v. SSP Am. MDW, LLC, 2019 

WL 3554153, at *4 (N.D. Ill. July 31, 2019) (“To establish that SSP was his employer, Boyce must allege facts 

showing that SSP specifically exercised control over his working conditions—for example, that SSP had the power 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 13 of 22 PageID #:252
9 

67578909v.7 

specific, factual allegations that Enterprise Holdings had any “control” over her “work 

environment,” from which the Court could plausibly conclude that Enterprise Holdings actively 

collected or captured her information. Importantly, the Complaint fails to allege any of 

Plaintiff’s specific interactions with Enterprise Holdings whatsoever to support her conclusory 

allegations that Enterprise Holdings’ “control” extended to “employee timekeeping, employee 

privacy, employee discipline, and the scope of employee behavior.” Id.

8

 The Order notably 

does not point to any such allegations, nor could it, because they do not exist. 

Indeed, Plaintiff’s Response to Defendants’ Motion disclaims knowledge of any specific 

facts supporting these conclusions. (See ECF No. 28 at 6) (stating that Plaintiff lacks knowledge 

of Enterprise Holdings’ participation in timekeeping practices). This was accepted by the Court 

in permitting Plaintiff’s claim to proceed despite these contradictions and lack of factual support. 

(Order at 8). Accordingly, the two allegations that the Court held plausibly stated a claim against 

Enterprise Holdings cannot serve as the sole basis for stating a claim. 

C. Plaintiff’s Two Sole Conclusory Allegations Regarding Her Work 

Environment Are Directly Contradicted By The Court’s Rejection Of 

Enterprise Holdings’ Code Of Conduct 

Plaintiff’s reliance on the Code was summarily rejected by the Court. Specifically, the 

Court held that Plaintiff’s reliance on the Code was “misguided,” “largely a distraction,” “does 

to hire and fire him, that SSP supervised and controlled his work schedule and conditions of employment, that SSP 

determined how he was paid, and that SSP maintained employment records.”) (emphasis added)). 

8

 To be sure, if Plaintiff is so confident within the confines of Rule 11 to allege in definitive fashion that 

Enterprise Holdings “controlled her work environment,” surely she would be able to, and must, provide specific 

examples of how it controlled “employee timekeeping, employee privacy, employee discipline, and the scope of 

acceptable employee behavior,” such as any interactions whatsoever with Enterprise Holdings, specifics of 

Enterprise Holdings hiring, firing, or disciplining Enterprise Leasing employees, interactions with Enterprise 

Holdings regarding timekeeping, etc. (Compl. ¶ 26). She has not done so because she cannot. To that end, 

Defendants would again direct the Court to the Third Circuit’s decision in In re Enter. Rent-A-Car Wage & Hour 

Employment Practices Litig., 683 F.3d 462, 471 (3d Cir. 2012) not for the proposition that it is binding upon 

Plaintiff in this case, as the Court misinterpreted Defendants’ argument in its Order, but rather for the proposition for 

which it was originally cited—i.e., that none of Plaintiff’s legal conclusions are plausible, including that Enterprise 

Holdings has any authority over subsidiary employees to “hire or fire,” “set compensation, benefits, schedules or 

rates or methods of payment,” is “not involved in employee supervision or employee discipline,” nor does it 

“exercise or maintain any control over employee records.” Id. at 471 (emphasis added). 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 14 of 22 PageID #:253
10 

67578909v.7 

not suggest that Enterprise Holdings controls each individual subsidiary, nor does it plausibly 

show that Enterprise Holdings was responsible for the timekeeping system.” (Id. at 11-14). The 

Court’s rejection of the Code, and the inferences Plaintiff attempts to draw from it, is 

inconsistent with the Court’s deference to Plaintiff’s alleged “specific factual statements” about 

her “personal experience.” (Id. at 11-12). A plain reading of the Complaint makes clear that 

Plaintiff’s “personal experience[s]” are mere legal conclusions based upon the Code. 

First, the Court should not have relied on Paragraph 22 of the Complaint as distinct from 

the Complaint’s allegations regarding the Code. (Id. at 12). Paragraph 22 is bracketed by 

paragraphs explicitly referencing the Code.9 Indeed, Paragraph 22 begins with the word “thus,” 

indicating that it is drawing a conclusion from the paragraphs that precede it, as opposed to 

making an independent factual statement about Plaintiff’s work environment. (Compl. ¶ 22). As 

noted by the Seventh Circuit, courts may not “uncouple allegations, read them in isolation, and 

disregard their context.” Bancorpsouth, Inc., v. Fed. Ins. Co., 873 F.3d 582, 587 (7th Cir. 2017). 

Further, Paragraph 22 of the Complaint does not contain allegations regarding “[Plaintiff’s] work 

environment.” (Order at 12). Rather, Paragraph 22 is contained in the section of the Complaint 

entitled “General Factual Allegations,” and only references Enterprise Holdings’ alleged 

relationship with its subsidiaries. (See Compl. at 5; c.f. id. at 9 entitled “Facts Specific To 

Plaintiff”). Accordingly, Paragraph 22 is specifically tied to the allegations related to the 

Code—which the Court explicitly rejected. 

Second, Paragraph 26 of the Complaint is also a legal conclusion drawn from allegations 

related to the Code. This is apparent from Plaintiff’s Response which refers to the allegations in 

Paragraph 26 as the “logical inference” drawn from the allegations related to the Code. (See 

9 See Compl. ¶ 21 (“As is evident from the Code of Conduct. . .”), id. ¶ 23 (“As is evident from the Code of 

Conduct . . .”) & id. ¶ 24 (“As is evident from the Code of Conduct”). 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 15 of 22 PageID #:254
11 

67578909v.7 

ECF No. 28 at 4-5.) The Complaint also makes this clear because Paragraph 26 mirrors the 

preceding allegations related to the Code.10

Accordingly, Plaintiff’s general allegations regarding Enterprise Holdings’ purported 

“control” of her “work environment,” upon which the Court solely relied, are not separate from 

the allegations related to the Code. These general allegations were merely the conclusions 

Plaintiff wished the Court to draw solely from the Code—which the Court explicitly rejected: 

Plaintiff’s “Personal” Allegations Regarding 

Enterprise Holdings’ “Control Of Her 

Work Environment” 

Court’s Order Rejecting Plaintiff’s Reliance 

On Code Of Conduct 

Thus, on information and belief, at all 

relevant times Defendant Enterprise 

Holdings, Inc. has exercised primary, 

if not exclusive, control over its 

subsidiaries’, including Defendant 

Enterprise Leasing Company of 

Chicago, LLC’s, practices with respect 

to employee privacy matters and other 

employment conditions.” (Compl. ¶ 

22) (emphasis added). 

“The Code does not suggest that Enterprise 

Holdings controls each individual subsidiary, 

nor does it plausibly show that Enterprise 

Holdings was responsible for the timekeeping 

system at the Cook County facility.” (Order at 

11-12) (emphasis added). 

*** 

The Code’s references to the company as a 

single unit don’t suggest anything more than 

an ordinary parent-subsidiary relationship.” 

(Order at 14) (emphasis added). 

“While Plaintiff received her paychecks from 

Defendant Enterprise Leasing Company of 

Chicago, LLC, the conditions of her work 

environment, including matters pertaining to 

employee timekeeping, employee privacy, 

employee discipline, and the scope of 

acceptable employee behavior, were controlled 

by Defendant Enterprise Holdings.” (Compl. ¶ 

26). 

“But the Code alone does not establish that 

Enterprise Holdings in fact exerted 

significant control over plaintiff at the Cook 

County facility.” (Order at 14). 

*** 

“The Code does not tell us whether Enterprise 

Holdings directed and managed the biometric 

timekeeping at the Cook County facility.” 

(Order at 12). 

III. PLAINTIFF’S “ALTERNATIVE THEORIES” OF LIABILITY ARE 

UNSUPPORTED BY THE LAW AND FACTS 

A. Direct-Participant Liability 

Under Illinois law, a parent company may be found liable under a theory of directparticipant liability “where there is evidence sufficient to prove that a parent company mandated 

10 See Compl ¶¶ 17-18 (identifying language within Code related to employee ethics and values), id. ¶¶ 19-

20, 23 (discussing “privacy”), id. ¶ 24 (discussing “timekeeping”) & id. ¶ 26 (discussing “discipline,” “scope of 

acceptable behavior,” “privacy,” “timekeeping”). 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 16 of 22 PageID #:255
12 

67578909v.7 

an overall business and budgetary strategy and carried that strategy out by its own specific 

direction or authorization, surpassing the control exercised as a normal incident of ownership in 

disregard for the interests of the subsidiary.” Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 290 

(Ill. 2007); id. (“The key elements ... are a parent's specific direction or authorization of the 

manner in which an activity is undertaken and foreseeability.”). 

The Court should reconsider its Order in this regard for four separate reasons. First, the 

Order does not identify any specific allegations that support its holding that the Complaint 

sufficiently alleged a direct-participation theory. (Order at 13-14). Indeed, the Order found to 

the contrary, i.e., that the Code itself “[does not] suggest anything more than an ordinary parentsubsidiary relationship.” (Id. at 14). Accordingly, the Order failed to establish whether the 

Complaint alleged that Enterprise Holdings “mandated an overall business strategy,” which 

“surpass[ed] the control” of a “normal incident of ownership.” Forsythe, 114 Ill. 2d at 290. 

Second, the Complaint nonetheless fails to sufficiently allege Enterprise Holdings had 

any involvement in the timekeeping system. Indeed, the Order rejected the Code for this 

proposition, which represents the entire factual basis for including Enterprise Holdings as a 

Defendant.11 Thus, the Complaint’s allegations fail to allege Enterprise Holdings gave “specific 

direction or authorization” in disregard of its subsidiary. Forsythe, 224 Ill. 2d at 290.12

Third, the Order does not undertake a foreseeability analysis. (See Order at 13-14). 

Absent such an analysis, the Court could not have answered the “key elements” required to state 

a claim under such a theory. Forsythe, 224 Ill. 2d at 290. This lack of analysis alone is 

sufficient to warrant reconsideration. United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008). 

11 See Order at 12 (“The Code does not tell us whether Enterprise Holdings directed and managed the 

biometric timekeeping at the Cook County facility.”); id. at 11-12 (“The Code does not. . .plausibly show that 

Enterprise Holdings was responsible for the timekeeping system at the Cook County facility.”). 

12 See also Holmes v. United Airlines, Inc., No. 10 C 8085, 2012 WL 245136, at *7 (N.D. Ill. Jan. 25, 2012) 

(“Merely alleging that UAL acted as UCH's agent does not sufficiently allege the kind of direction and authorization 

required to state a claim for negligence based on a direct participant theory regarding such use of the metal ladder.”) 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 17 of 22 PageID #:256
13 

67578909v.7 

Fourth, Plaintiff fails to allege, and the Court failed to analyze, whether Plaintiff’s 

purported injuries were foreseeable by Enterprise Holdings. The injury alleged in the Complaint 

is not the mere collection of Plaintiff’s information. A plaintiff cannot state an injury under 

BIPA by simply stating that their biometric information was collected by a private entity. 

Instead, a plaintiff must allege that the entity also violated one of Section 15’s requirements. See 

generally 740 ILCS 14/15. Thus, the question for the Court is not whether the parent could have 

foreseen that the subsidiary would collect information, but whether the parent should have 

foreseen that the subsidiary would not comply with BIPA. Plaintiff would have to allege that 

Enterprise Holdings should have foreseen that Plaintiff’s employer would not comply. 

However, a party, generally, cannot foresee intervening illegal acts by others, which 

relieves liability.13 Here, the Complaint simply does not plead that Enterprise Holdings could 

have foreseen Enterprise Leasing would allegedly violate the law. See Santora v. Starwood 

Hotel & Resorts Worldwide, Inc., 2007 WL 3037098, at *6 (N.D. Ill. Oct. 16, 2007) (“Plaintiff 

fails to state a claim for direct participation liability because plaintiff fails to allege how the 

operating standards he cites contributed in any way to his injury.”). 

B. Joint-Employer 

First, unlike other statutes where a joint-employer analysis is linked to an essential 

element of a claim (like the FLSA where only “employers” are liable), the plain language of 

13 See Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 224 (Ill. 1988) (“Generally, where between the 

defendant's negligence and the plaintiff's injury an independent, illegal act of a third person has intervened which 

causes the plaintiff's injury, and without which it would not have occurred, the criminal act is a superseding cause of 

injury relieving the originally negligent party of liability.”); Kemper v. Deutsche Bank AG, 911 F.3d 383, 393 (7th 

Cir. 2018) (“We have recognized, consistently with the Restatement (Third) of Torts, that although ‘criminal acts are 

not superseding causes per se[,] ... acts that are either criminal or intentionally tortious ... are more likely to be 

adjudged superseding causes.”) (quoting Scottsdale Ins. Co. v. Subscription Plus, Inc., 299 F.3d 618, 620 (2002); cf. 

Dugan v. Sears, Roebuck & Co., 113 Ill. App. 3d 740, 741, 447 N.E.2d 1055, 1058, on reh'g sub nom. by Dugan v. 

Sears, Roebuck & Co., 113 Ill. App. 3d 740, 454 N.E.2d 64 (1983) (in a products liability case, stating “misuse was 

a superseding cause which became the sole proximate cause of the resulting injury if it was not reasonably 

foreseeable that she would ignore the warnings which she admittedly read in the owner's manual.”). 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 18 of 22 PageID #:257
14 

67578909v.7 

BIPA does require such analysis because it applies to “private entities,” irrespective to their 

status as an “employer.” As recently noted by Judge Tharp in Ivery, “the language of the statute 

should be the starting place for a determination of Ivery’s [employment] status vis-à-vis 

[alleged joint-employer].” Ivery, 280 F.3d at 1127 (emphasis added).14 This is in accord with 

Illinois Supreme Court precedent in the joint employer context holding that whether or not a 

defendant is an “employer as defined in [the statute]” is a “question of statutory interpretation,” 

which requires the statute be “given its plain and ordinary meaning.” Andrews v. Kowa Printing 

Corp., 217 Ill. 2d 101, 105–06 (Ill. 2005). Here, BIPA does not even include the word 

“employer,” much less require an analysis as to whether an entity is an “employer.” Here, the 

Court did not analyze whether BIPA permits liability under a joint-employer theory where BIPA 

does not require an entity be an “employer.”15

Second, and even more troubling, the Court nonetheless failed to identify any facts in the 

Complaint for the proposition that Enterprise Holdings was her employer and, in doing so, failed 

to address the specific factors necessary to sustain a claim under a joint-employer theory at the 

pleadings stage. The Court identified the test for joint employment as whether two or more 

employers “exert significant control over the same employees-where from the evidence it can be 

shown that they share or co-determine those matters governing essential terms and conditions of 

employment.” Vill. of Winfield v. Ill. State Labor Relations Bd., 678 N.E.2d 1041, 1044 (Ill. 

1997). Relevant factors in determining whether a joint employment relationship exists include 

“the putative joint employer's role in hiring and firing; promotions and demotions; setting wages, 

14 This Court has indeed recognized this principle in Scheneider v. Cornerstone Pints, Inc., noting that a 

joint employer analysis turns on the question as to whether an entity is an “employer” as defined in the statute. 148 

F. Supp. 3d 690, 696 (N.D. Ill. 2015) (Shah, J.) 

15 Relatedly, the Court also failed to analyze whether the joint-employment relationship alleged here was 

sufficient to attach liability to Enterprise Holdings. See Shah, 2013 WL 1828926, at *6 (N.D. Ill. Apr. 29, 2013) 

(“A joint employer relationship does not automatically expose an employer to liability for actions taken by its coemployer.”).

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 19 of 22 PageID #:258
15 

67578909v.7 

work hours, and other terms and conditions of employment; discipline; and actual day-to-day 

supervision and direction of employees on the job.” Id. at 1044. 

Yet, the Complaint fails to allege any facts which would permit Plaintiff to pursue such a 

theory against Enterprise Holdings. Specifically, Plaintiff’s Complaint does not allege a single 

fact suggesting that Enterprise Holdings does any of the following with respect to subsidiary 

employees: (1) hires and fires; (2) promotes or demotes; (3) sets wages or work hours; (4) 

disciplines; or (5) engages in day to day supervision. Id. Indeed, the Court’s failure to conduct 

such an analysis is directly contradicted by its previous rulings in this regard. See Richardson v. 

Help at Home, LLC, 2017 WL 2080448, at *2 (N.D. Ill. May 15, 2017) (Shah, J.) (granting in 

part motion to dismiss noting that complaint “is devoid of any allegations to support a theory of 

joint liability” and “fails to sufficiently allege that [plaintiff] performed work for [alleged joint 

employer].”). Indeed, courts in this District routinely reject and dismiss joint-employer theories 

at the pleading stage where, like here, a plaintiff asserts conclusory “control” over various 

aspects of their employment absent specific facts, and fails to allege specific details of the 

alleged joint-employer’s specific interactions with the plaintiff herself—which are completely 

absent here.16 Thus, the Court should have foreclosed the possibility of joint-employer liability. 

CONCLUSION 

Defendants respectfully request that the Court reconsider and reverse the Order.17

16 See, e.g., Shah, 2013 WL 1828926, at *3 (“The allegations in Shah's Complaint, assumed to be true at 

this stage of the proceedings, fail to demonstrate that DISYS exercised any, much less “significant” control over his 

employment. The Complaint is devoid of any facts alleging DISYS controlled Shah's work conditions, assignments, 

evaluations, or performance. A joint employer relationship does not lie under such circumstances.”) (collecting 

cases); Brunner v. Liautaud, 2015 WL 1598106, at *4); Ivery v. RMH Franchise Corp., 280 F.3d at 1127-1132 

(same); Boyce v. SSP Am. MDW, LLC, 2019 WL 3554153, at *4 (same); Aiello v. Invision Mktg. Sols., No. 17 C 

985, 2019 WL 1875354, at *2 (N.D. Ill. Apr. 26, 2019) (same); See, e.g., Aiello v. S. Wine & Spirits of Am., Inc.,

2019 WL 6210938, at *2–3 (N.D. Ill. Nov. 21, 2019). 

17 In the alternative, Defendants’ request that the Court certify the questions for interlocutory appeal to the 

Seventh Circuit pursuant to 28 U.S.C. § 1292(b) for the reasons contained in Defendants’ Motion To Certify 

Questions For Appeal, filed concurrently herewith. 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 20 of 22 PageID #:259
16 

67578909v.7 

DATED: January 20, 2021 Respectfully submitted, 

ENTERPRISE LEASING COMPANY OF 

CHICAGO, LLC and ENTERPRISE 

HOLDINGS, INC. 

By /s/ Thomas E. Ahlering

 One of Their Attorneys 

Erin Dougherty Foley 

edfoley@seyfarth.com

Thomas E. Ahlering

tahlering@seyfarth.com 

Alexandra S. Oxyer 

aoxyer@seyfarth.com 

SEYFARTH SHAW LLP 

233 S. Wacker Dr., Suite 8000 

Chicago, Illinois 60606 

Telephone: 312-460-5000 

Facsimile: 312-460-7000

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 21 of 22 PageID #:260
67578909v.7 

CERTIFICATE OF SERVICE 

I hereby certify that on this 20th day of January, 2021, a true and correct copy of the 

foregoing document was filed with the Clerk of Court by using the CM/ECF system which will 

send notification to the e-mail addresses of all counsel of record denoted on the electronic Mail 

Notice List. 

/s/Thomas E. Ahlering

Thomas E. Ahlering 

Case: 1:20-cv-03200 Document #: 34 Filed: 01/20/21 Page 22 of 22 PageID #:261