UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAMUEL DONETS, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

VIVID SEATS LLC,

Defendant.

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No. 1:20-cv-03551

Hon. Franklin U. Valderrama 

PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO LIFT STAY FOR THE 

LIMITED PURPOSE OF GRANTING FOR RELIEF UNDER RULE 23(d)(1)

Plaintiff, Samuel Donets, submits this Reply in support of his Opposed Motion to Lift Stay 

for the Limited Purpose of Granting Relief Under Rule 23(d) filed by Defendant Vivid Seats LLC 

(“Defendant” or “Vivid Seats”) (Doc. 45) (“Opp.”).1

Argument

I. Defendant has violated the stay it requested by surreptitiously sending “settlement 

offers” to 333 former employees (including Plaintiff) and in so doing has undercut 

representations it made to the Court to obtain the stay. 

In persuading the Court to stay this case based on the pendency of cases in the Illinois 

Appellate Court (Tims and Marion) and in the Seventh Circuit (In Re: White Castle System, Inc.),

Defendant represented that failure to do so would result in undue burden, expense, and unnecessary 

attorneys’ fees and costs incurred in litigating a case where the claims “may be completely timebarred, preempted, or significantly reduced in scope and value.” (Doc. 32, Mot. ¶¶ 2, 3, 5, 9). 

Defendant further represented to the Court that it wanted to have its “limited human capital” run 

1 On July 29, 2021, the Court entered an Order granting Plaintiff’s motion to lift the stay entered 

on December 15, 2020 (Doc. 37) for the limited purpose of addressing Plaintiff’s motion for relief 

under Rule 23(d). (See Doc. 44). 
2

its business rather than engage in class action litigation and discovery. (Id. ¶ 8). In entering the 

stay, the Court stated: “according to Vivid Seats, a stay would conserve the parties’ and judicial 

resources and save expenditures on potentially costly motion practice and discovery,” Doc. 37, 

Order at 4 (emphasis added), and that Plaintiff’s opposition to the stay “did not justify denying 

Vivid Seats’ request for a stay, taking into account the economies to be gained from staying this 

litigation,” id.

Notwithstanding its representations to the Court and the pendency of the stay Order, 

Defendant admits in its opposition that “on or about June 9, 2021,” its attorneys mailed settlement 

offers to 333 former employees, including the Plaintiff, that included a Cover Sheet, Limited 

Release of Claims Agreements (“Limited Release”), and Notice of Retention Policy and Consent 

Form (“Consent Form”) (collectively, “settlement documents”). (See Doc. 45-1, Declaration from 

Alexandra S. Davidson (“Davidson Decl.”), ¶ 4; id. at Exhs. A, B, C).2 Ms. Davidson, one of the 

attorneys representing Defendant, avers that no settlement offers were made to current employees, 

that of the 333 settlement offers that were mailed, 97 were returned undeliverable, and 16 

individuals returned their signed agreements. (Id. ¶¶ 3, 5, 6). Ms. Davidson further avers that “only 

Vivid Seats made the settlement offers,” but that “due to Vivid Seats lack of resources, it delegated 

the ‘mailing’ function of these offers to me and provided me with a list of formers employees for 

the relevant time-period in the complaint, which included Plaintiff.” (Id. ¶ 10). Finally, Ms. 

Davidson avers that she in turn “delegated the mailing function to an administrative assistant who 

inadvertently mailed Plaintiff the same settlement offer as everyone else.” (Id. ¶ 11).

In other words, after convincing the Court to stay this case for the reasons set forth above, 

2 See also Doc. 43-2, Declaration of Samuel Donets, ¶ 4; id. Exhibits A and B.
3

Defendant did just the opposite—its attorneys mailed settlement documents to 333 former 

employees in an attempt to settle their potential claims under the Biometric Information Privacy 

Act (“BIPA”), 740 ILCS § 14/1, et seq., for pennies on the dollar and without disclosing the actual 

(or potential, see White Castle appeal) statutory damages available, without informing these former 

employees as to the status of the case or the pendency of the appeals relied upon to obtain the stay, 

without providing a copy of the complaint, and without identifying Plaintiff’s attorneys. Contrary 

to its feigned concerns about undue burden, expense, attorneys’ fees, and “unnecessary” motion 

practice, Defendant’s actions predictably resulted in the Rule 23(d)(1) motion currently pending 

before the Court. Defendant’s actions were only discovered because Defendant’s counsel (via an 

administrative assistant) mailed the settlement documents directly to the Plaintiff.

3

Defendant has given the stay order entered by the Court the back of its hand. Defendant’s

opposition never bothers to address that fact. (See Opp. at 1-15). Instead, Defendant asserts that 

its claims of financial distress are real and that the COVID-19 pandemic has hurt its business, 

“resulting in a reduction-in-force and other cost-reduction measures.” (Opp. at 3 n.2).

Defendant misses the point. Having made the representations to the Court set forth above, 

and having obtained a stay based on those representations, Defendant did not “stop litigating” to 

preclude undue burden, expense, and unnecessary motion practice expense so that it could devote 

its energies to its business rather than to defending a class action. Instead, Defendant attempted to 

3 Model Rule of Professional Conduct 4.2 prohibits a lawyer from communicating “about the 

subject of the representation with a person the lawyer knows to be represented by another lawyer 

in that matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by 

law or a court order.” See also LR 83.50 (adopting the Model Rules from the American Bar 

Association). Here, Plaintiff was clearly a represented party, and he was mailed a Cover Sheet, 

Limited Release, and Consent Form in an envelope bearing the name “Seyfarth” on the address 

label and which included a prepaid return envelope addressed to Vivid Seats that listed “Seyfarth” 

as the return address. (See Doc. 43-2, Donets Decl., ¶ 4; id. at Ex. B).
4

shrink the size of the potential class with its $100 offer, its “Limited Release,” and its “Consent 

Form,” all after a stay order was entered at its request. Defendant’s conduct here is similar to that 

of the defendants in Piekarski v. Amedisys Illinois, LLC, 4 F. Supp. 3d 952, 955 (N.D. Ill. 2013), 

who also sought to shrink the size of a class (with a arbitration agreement) during the pendency of 

a stay that defendants had requested. The court found defendants’ behavior was “highly improper” 

in light of the court’s stay order and stated that defendants “abusive tactics must be remedied,” 

which the court did through a corrective order. Id. at 956-57. 

II. Defendant’s argument that the settlement documents sent to potential class members 

were “lawful” or “factually correct” is wrong—the documents concealed material 

information in an effort to settle claims for pennies on the dollar and were thus 

“abusive communications” subject to a remedy under Rule 23(d)(1). 

Defendant argues that the Cover Sheet, Limited Release, and Consent Form are “lawful,” 

Opp. at 4, 5, and that the information contained in them is “factually correct” and therefore was 

not “coercive, misleading, or abusive,” id. at 6-7. Defendant’s conclusory argument misses the 

mark. The issue here is whether Defendant failed to provide enough information to the targets of 

its “settlement documents,” not whether the information that was provided was “factually correct.” 

As Plaintiff demonstrated in its opening brief, pre-certification communications with 

potential class members do not have to be false to be improper because potential class members 

can be misled through omissions and failure to provide enough information. (See Pl. Mem. at 10-

13) (citing City of Santa Clara v. Astra USA, Inc., 2010 WL 2724512, at *4 (N.D. Cal. July 8, 

2010) (holding that there need not be a misstatement in a communication and that putative class 

members can be misled through omissions and failure to provide enough information); Slavkov v. 

Fast Water Heater Partners I, LP, 2015 WL 6674575, at *2 (N.D. Cal. Nov. 2, 2015) (“[c]ourts 

in this district have limited communications, as well as invalidated agreements that resulted from 

those communications, when they omitted critical information or were otherwise misleading or 
5

coercive”) (collecting cases); Cheverez v. Plains All Am. Pipeline, LP, 2016 WL 861107, at *4 

(C.D. Mar. 3, 2016) (“Courts routinely hold that releases that are misleading where they do not 

permit a putative class member to fully evaluate his likelihood of recovering through the class 

action”).

Indeed, some of the very authorities cited by Defendant recognize the prohibition on 

“misleading” statements that contain “material omissions” or “conceal material information.” (See 

Doc. 45, Opp. at 5 n.6) (citing Tolmasoff v. General Motors, LLC, 2016 WL 3548219, at *11 (E.D. 

Mich. June 30, 2016) (“Examples of abusive communications are those that are false or 

misleading, contain material omissions, or are coercive or intimidating”) (emphasis added) (citing 

Jones v. Jeld-Wen, Inc., 250 F.R.D. 554, 561 (S.D. Fla. 2008) (quoting Cox Nuclear Med. V. Gold 

Cup Coffee Servs., Inc., 214 F.R.D. 696, 698 (S.D. Ala. 2003); Manual for Complex Litigation 

(Fourth) § 21.12 (explaining that a party may not “give false, misleading, or intimidating 

information, conceal material information, or attempt to influence the decision about whether to 

request exclusion from a class”) (emphasis added). 

Defendant has clearly violated these principles. Although this is a case for statutory 

damages under BIPA, and Defendant and its attorneys were no doubt aware of the statutory 

damages available under BIPA ($1,000 per violation for negligent conduct, see 740 ILCS § 

14/20(1), and $5,000 per violation for intentional or reckless conduct, id. at § 14/20(2), the Cover 

Sheet, Limited Release, and Consent Form say absolutely nothing to the 333 former employee 

targets of the settlement offer regarding the available statutory damages and instead vaguely state 

that the $100 offer “may be more or less than what you ultimately recover in the Lawsuit. . .” 

(Donets Decl., Doc. 43-2, Ex. A (Cover Sheet)). 

Making a bad situation worse, Defendant responds to its failure to disclose by saying: “The 
6

notion that Vivid Seats intended to conceal the statutory damages available under BIPA is 

nonsense. Curious minds could easily Google BIPA to learn about the statutory damages 

available.” (Opp. at 4 n.4). Regardless of what Defendant purportedly intended, its “settlement 

documents” failed to set forth the statutory damages available under BIPA, and in so doing 

undeniably made a “material omission” and “concealed material information.” Pursuant to 

Defendant’s own authority, such communications are by definition “abusive.” See Tolmasoff, 2016

WL 3548219, at *11. 

Moreover, while Defendant may find its “curious minds” remark amusing, Plaintiff does 

not. Defendant furtively sought to remove 333 potential class members from this case for $100 a 

piece without revealing that statutory damages at a minimum (in a successful case) would have 

been ten times $100 for negligent conduct, and fifty times $100 for conduct found to be reckless 

or intentional, and it did so while the case was stayed (at its request). In fact, Defendant succeeded 

in exploiting its knowledge gap with 16 former employees. (Doc. 45-1, Davidson Decl. ¶ 6).

Without knowledge of the statutory damages available under BIPA, the targets of 

Defendant’s secret settlement campaign do not (and did not) have the information necessary to 

make an informed choice as to whether to take the $100 offer and sign the Consent Form. It is selfevident that one of the first things a BIPA defendant would want to know is the potential statutory 

damages available, and Plaintiff submits it is highly unlikely if not impossible that such defendants 

would be told by their attorneys to “Google BIPA” if you’re “curious” about the available statutory 

damages. On this basis alone, Plaintiff has met its burden of showing that Defendant has engaged 

in “misleading” or “abusive” communications with the potential class members by concealing 

material information, namely, the potential statutory damages. Piekarski, 4 F. Supp. 3d at 955.

Defendant’s citation to Reid v. Unilever United States, Inc., 964 F. Supp.2d 893, 926 (N.D. 
7

Ill. 2013), and its discussion regarding coercive communications, cannot somehow cure 

Defendant’s material nondisclosures. (See Opp. at 4, 5). First, unlike the instant case, Reid did not 

involve the nondisclosure of liquidated statutory damages, making it inapplicable on its face. 

Second, it was not until Defendant filed its opposition on August 12, 2021, that Plaintiff was made

aware of the claim that settlement documents were sent only to former employees. In fact, 

Defendant’s counsel had previously refused to discuss any aspect of its settlement campaign when 

it was first discovered by Plaintiff. (See Doc. 43-1, Pl.’s Mem. at 7, 8). 

Third, the Reid court’s discussion of “coercion” under Rule 23(d), and Defendant’s attempt 

to apply that discussion here, is simply not relevant. The issue here is whether Defendant’s failure 

to disclose the statutory damages under BIPA, and its failure to disclose the BIPA appeals, see 

infra, including the White Castle appeal that may substantially increase the statutory damages 

available, constitute material omissions and/or are an effort to conceal material information.

Whether Defendant’s conduct has also been coercive is immaterial because the 

omissions/concealment described herein have been misleading. See Friedman v. Intervet, Inc., 730 

F. Supp. 2d 758, 764 n.6 (N.D. Ohio 2010) (an ongoing business relationship, particularly 

employer-employee, is often relevant to determine whether a defendant’s communications are 

coercive, but not where the analysis addresses whether the communication was misleading). 

Defendant also failed to disclose the pendency of the following appeals: Tims v. Black 

Horse Carriers, Inc., App. No. 1-20-0563 (“Tims”) and Marion v. Ring Container Technologies, 

LLC, No. 3-20-0184 (“Marion”), both of which address the question of which statute of limitations 

period applies to BIPA claims; McDonald v. Symphony Bronzeville Park, LLC (“McDonald”), 

which addresses whether a BIPA claim is preempted by the Illinois Workers Compensation Act;

and In Re: White Castle System, Inc., No. 20-8029, currently pending in the Seventh Circuit, which 
8

addresses whether a private entity violates BIPA only when it first collects an individual’s 

biometric information, or whether a violation occurs each time a private entity collects or discloses 

the biometric data in violation of 740 ILCS § 15(b) or 15(d). 

Defendant argues that Plaintiff cites no authority for the proposition that it was required to 

inform putative class members of the status of pending appeals. (Opp. at 7). Defendant further

argues that such a requirement “makes no sense here because Plaintiff’s claims may be rendered 

time-barred by Tims, Marion, or White Castle, or moot by McDonald,” and that “Why on earth 

would Vivid Seats be required to explain the vulnerability of Plaintiff’s lawsuit to its former 

employees?” (Id.) Finally, Defendant predicts that if it had “discussed the pending appeals and 

their potential to nullify the putative class members’ claims, surely Plaintiff would have 

characterized Vivid Seats’s actions as ‘misleading’ and ‘coercive,’” and thus Defendant “chose 

not to speculate about the outcome of those appeals in its settlement offers to its former 

employees.” (Id. at 7, 8).

At the outset, it is unclear why Defendant would have to “speculate” about the “outcome”

of Tims, Marion, White Castle, and McDonald. Instead, a brief description of what is at issue in 

those appeals is all that should have been provided, not a handicapping of the outcomes. Again, 

the issue is whether knowledge of the pendency of these appeals would be necessary to allow the 

putative class member to “fully evaluate the likelihood of recovering through the class action.” 

Cheverez, 2016 WL 861107, at *4. As with the BIPA statutory damages, it is also presumed that 

a defendant in a BIPA case would want to know that these appeals were pending before deciding 

what to do going forward. Indeed, in entering the stay, the Court found in part that it was 

“appropriate” to stay the case pending the Tims and Marion decisions in that said decisions “could 

control the Court’s resolution of the timeliness issue and guide the parties’ positions as they 
9

proceed with this case.” (Doc. 37, Order at 3) (emphasis added). 

Defendant offers no reason why potential class members that are being asked to settle a 

case for one tenth, one fiftieth, or possibly more of the potential statutory damages under BIPA 

need not be provided knowledge of those appeals to “guide” them (at least in part) as to whether 

to except the $100 offer and sign the Consent Form (a requirement for receipt of the $100). 

Defendant asked the Court to stay this case in part because without a stay it would be “forced to 

continue to defend claims and engage in discovery on claims that may be completely time-barred, 

preempted, or significantly reduced in scope and value.” (Doc. 32, Mot. ¶¶ 8, 9). Defendant’s 

position that the “BIPA cases” on appeal (and the issues raised therein, including the White Castle

damages issue) are on the one hand enough to stay the case, but on the other hand need not be 

disclosed to the former employee targets’ of Defendant’s clandestine settlement campaign before

they decide whether to take the $100 settlement offer is irreconcilable. 

Defendant’s insistence on “authority” for the proposition that it was required to inform 

putative class members of the status of pending appeals fails to understand that Rule 23(d) does 

not expressly impose an affirmative obligation to provide “particular information,” but instead 

authorizes this Court to make orders to manage class action communications. Chen-Oster v. 

Goldman, Sachs & Co., 449 F. Supp. 3d 216, 268 (S.D.N.Y. 2020). “In light of Gulf Oil’s

requirements for crafting such orders, courts ‘[examine] the entirety of defendant’s conduct and 

communications [and there is no] statutory rule or case law that requires defense counsel to give 

specific information and instructions to putative class members, nor [are there] any ‘magic words’ 

that must be disclosed [in communications].’” Id. (citing Bobryk v. Durand Glass Manufacturing 

Co., Inc., 2013 WL 5574504, at *6 (D.N.J. Oct. 9, 2013). Rule 23(d) was intended specifically to 

provide the court with broad authority to ensure ‘the fair and efficient conduct of the action.” Fed. 
10

R. Civ. P. 23, Advisory Committee Notes (1966 Amendment). “The prophylactic power accorded 

to the court presiding over a putative class action under Rule 23(d) is broad; the purpose of Rule 

23(d)’s conferral of authority is not only to protect class members in particular but to safeguard 

generally the administering of justice and the integrity of the class certification process.” Slaight, 

2018 WL 4334329, at *3 (citations omitted). 

Here, Defendant’s failure to disclose the existence of appeals that Defendant argues may 

render Plaintiff’s and potential class members’ claims time-barred (by Tims, Marion, or White 

Castle), or moot (by McDonald) is a material omission of critical information that should have 

been provided to potential class members so that they had the requisite information necessary to 

decide whether to accept the $100 offer. Indeed, Defendant’s argument in support of the claim 

that its $100 offer was “fair and reasonable” (and therefore potential class members were not 

“prejudiced” by Defendant’s nondisclosures, Opp. at 14) inadvertently makes the case that 

Defendant concealed material information under Rule 23(d):

And given the probability that Plaintiff’s claims ultimately fail (because they are 

time-barred and/or preempted by the Workers Compensation Act) as a result of one 

or more of the upcoming decisions in the pending BIPA appeals, Vivid Seats 

settlement offer was fair and reasonable, and one in which the putative class 

members were free to accept or reject.

The pendency of the BIPA appeals present serious obstacles to Plaintiff’s lawsuit. 

In McDonalds v. Symphony Bronzeville Park, LLC, the Illinois Supreme Court will 

decide whether the plaintiff’s claim for statutory damages under BIPA is barred by 

the Exclusivity Provisions of the Illinois Worker’s Compensation Act. 

(Opp. at 14).4 Defendant’s reliance on the “BIPA” appeals to claim its offer of one tenth or one 

4 Defendant cites to AAR Aircraft & Engine Grp., Inc. v. Edwards, 272 F.3d 468, 470 (7th Cir. 

2001), and argues that “The Illinois Supreme Court’s decision to grant defendant’s petition for 

leave to appeal provides a ‘compelling reason’ to doubt that the Illinois Appellate Court ‘stated 

the law correctly.’” In fact, the Seventh Circuit in Edwards stated:

Although persuasive, the Illinois Appellate Court decisions do not bind us. When a 

state supreme court has not spoken on an issue, the decisions of the state’s 
11

fiftieth of the statutory damages available under BIPA (and possibly much more after of the White 

Castle decision) is “fair and reasonable” eviscerates its argument that these appeals and the 

statutory damages under BIPA should not have been disclosed to potential class members. 

In fact, it cannot be credibly argued that the failure to disclose the White Castle appeal

while offering $100 to settle the case is not a concealment of a material fact. Defendant argues that 

“to the extent” Plaintiff argues Defendant was required to inform putative class members of the 

“White Castle issue” because Plaintiff intends to pursue a “per-scan” damages theory (resulting in 

damages of $4,000 to $20,000 a day based on 4 scans a day), such an argument “lacks merit” for 

a variety of reasons, including that White Castle’s counsel has “disavowed” the “per-scan” theory,

and that such a theory would result in substantial damages, raising due process and Eighth 

Amendment concerns. (Opp. at 8). Defendant argues:

. . . just as Vivid Seats did not attempt to influence putative class members by 

arguing in its notice5 that Plaintiff’s claims may be time-barred and/or preempted 

by the Workers Compensation Act, nor did it speculate about what the Seventh 

Circuit may say about an issue that was not before the District Court. Once again, 

Vivid Seats wisely chose not to wade into such murky waters, keeping its 

communications fact-based, without foisting its interpretation of the state of the law 

upon putative class members.

(Opp. at 8, 9). 

Defendant again defaults to its confessed inability to objectively describe what is at issue 

in an appeal, in this case, the “White Castle issue,” without taking a position as to the outcome of 

that appeal. Defendant’s claim that it “wisely chose not to wade into such murky waters” in failing 

intermediate appellate courts are authoritative unless we have a compelling reason 

to doubt that they have stated the law correctly.

Edwards, 272 F.3d at 470 (emphasis added) (citations omitted). 

5 The Cover Sheet, Limited Release, and Consent Form do not constitute a “notice,” but are instead 

an attempt to settle claims for a fraction of the possible statutory damages without (among other 

things) informing as to the possible amount of said statutory damages. 
12

to disclose to the former-employee targets of its $100 settlement offer that at issue in White Castle

is the “per-scan” damages theory (resulting in $4,000 to $20,000 a day) would be laughable had 

not 16 potential class members signed Limited Releases and Consent Forms without being advised 

by the Defendant of the pendency of and the issues in the White Castle appeal. 

Moreover, as to Defendant’s attack on the district court’s opinion underlying the White 

Castle appeal in the Seventh Circuit—Cothron v. White Castle Sys., Inc., 477 F. Supp. 3d 723, 730 

N.D. Ill. 2020), the Cothron court first noted that the Illinois Supreme Court has held that a person 

is “‘aggrieved within the meaning of Section 20 of the [BIPA] and entitled to seek recovery under 

that provision’” whenever “a private entity fails to comply with one of section 15’s requirements.” 

(citing Rosenbach v. Six Flags Entm’t Corp., 129 N.E.3d 1197, 1206 (Ill. 2019)). The court also 

held that the text of BIPA, which the court held it was bound to follow, makes clear that each 

violation of 740 ILCS § 14/15(b) and 14/15(d) is a separate violation. Id. at 731-34. 

The court acknowledged that “large damage awards may result from this reading of the 

statute,” but that “as the Illinois Supreme Court explained in Rosenbach: ‘subjecting private 

entities who fail to follow the statute’s requirements to substantial potential liability, including 

liquidated damages, injunctions, attorney fees, and litigation expenses for each violation of the law 

is one of the principle means that the Illinois legislature adopted to achieve BIPA’s objectives of 

protecting biometric information.’” White Castle Sys., 477 F. Supp. 3d at 733 (citing Rosenbach, 

129 N.E.3d at 1207). The court cited to the Illinois Supreme Court’s “repeated” holdings that 

where statutory language is clear, it must be given effect by the courts “even though the 

consequences may be harsh, unjust, absurd, or unwise,” id. at 734 (citing Petersen v. Wallach, 764 

N.E.2d 19, 24 (Ill. 2002). The court then stated:

As a result, the Court is bound by the clear text of the statute. If the Illinois 

legislature agrees that this reading of BIPA is absurd, it is of course free to modify 
13

the statute to make its intention pellucid. But it is not the role of a court—

particularly a federal court—to rewrite a state statute to avoid a construction that 

may penalize violations severely. In any event, this Court's ruling is unlikely to be 

the last word on this subject. On appeal—and possibly upon certification to the 

Illinois Supreme Court—White Castle will have ample opportunity to explain why 

it is absurd to suppose that the legislature sought to impose harsh sanctions on 

Illinois businesses that ignored the requirements of BIPA for more than a decade.

In sum, the Court concludes that Ms. Cothron has alleged multiple timely violations 

of both Section 15(b) and Section 15(d). According to BIPA Section 20, she can 

recover “for each violation.” 740 ILCS 14/20. 

Id. In other words, contrary to Defendant’s argument, the “per/scan” interpretation in fact has 

merit. However, the issue before this Court is not how the White Castle appeal will turn out but is 

instead whether Defendant’s failure to disclose the existence of the White Castle appeal was 

violative of Rule 23(d)(1). Plaintiff submits the discussion above makes clear the answer to that 

question is yes. 

 In sum, like the failure to disclose BIPA statutory damages, Plaintiff has also met its 

burden of showing that Defendant has engaged in “misleading” or “abusive” communications with 

the potential class by again concealing material information, this time, the appeals in Tims, Marion, 

McDonald, and perhaps most egregiously, the appeal in White Castle. Piekarski, 4 F. Supp. 3d at 

955. Regardless of how these appeals are decided, there can be no question that Defendant was 

obligated to inform potential class members that under BIPA they may be entitled to $1,000 or 

$4,000 and possibly $4,000 to $20,000 per day for Defendant’s violations of BIPA before they 

decided whether to accept a $100 offer. 

III. Defendant’s attempt to demonstrate its own misconduct is not as egregious as in other 

Rule 23(d) cases is wrong and does not excuse its misleading “settlement documents.”

Defendant attempts to distinguish certain authorities cited by Plaintiff by comparing 

degrees of fault. That is not the measuring stick. These cases were cited for the principles set forth 

in Plaintiff’s opening brief, Doc. 43-1, at 11, and supra, at 4-5. But even on the merits, Defendant’s 
14

attempts to distinguish are unpersuasive. For example, Defendant argues that City of Santa Clara, 

2010 WL 2724512, at *4, is inapposite because in that case, the defendant did not provide a copy 

of the complaint but instead directed the putative class members to the clerk’s office, and the 

settlement letter did not contain a summary of the complaint, an explanation of the claims, the 

current status of the case, or that the Ninth Circuit had” blessed” plaintiff’s legal theory. (Opp. at 

9). Here, putative class members were not provided a copy of the complaint but instead had to 

request one from their former employer, the settlement documents did not explain the current status

of the case, i.e., that it was stayed and why, did not provide an explanation of the statutory damages 

available, and did not state that the Seventh Circuit was considering the “White Castle” issue. 

Defendant’s argument that the facts in Piekarski “have nothing in common with the facts 

here,” Opp. at 10-11, ignores that like the defendants in Piekarski, Defendant here, after a stay 

was entered at its request, and without moving to modify the stay or notify Plaintiff or the Court, 

attempted to winnow down the size of the class. In Piekarski, the abusive communication was 

through an arbitration program (“DRA”) that the court concluded employees would not understand 

and would be bound to arbitrate their claims. Here, the abusive communication was through a 

settlement offer of $100 that failed to disclose and/or concealed material information, namely, the 

BIPA statutory damages available (that are at least 10 and may be 50 times more than the $100 

offer), and an appeal that may substantially increase those statutory damages (White Castle).

Defendant’s claim that the corrective notice ordered in Piekarski is “very close” to 

Defendant’s Cover Sheet, and that Defendant has “already provided almost the exact same

information that the Piekarski court ordered as a corrective notice, see Opp. at 11-21 (emphasis in 

original), is wrong and irrelevant. The issue here is Defendant’s concealment/omission of material 

facts regarding BIPA damages and of the pendency of the BIPA appeals, not a confusing 
15

arbitration clause, as in Piekarski. Moreover, this argument is the bookend to Defendant’s claim 

that the information in the settlement documents was “factually correct,” and it fails for the same 

reason—the information disclosed by Defendant in the settlement documents concealed the key 

material facts necessary to make an informed decision as to the $100 offer, information Defendant 

possessed, and information Defendant knew it had not disclosed to any of its former employees. 

Defendant’s varied attempts to explain away those dispositive facts simply do not work. As in 

Pierkarski, “Defendant’s abusive tactics must be remedied.” 4 F. Supp. 3d at 956.

Conclusion

Plaintiff in its opening brief and in this reply has met its burden to show that Defendant has 

engaged in misleading and abusive communications with the potential class. The facts as to 

Defendant’s material omissions are undisputed—the Cover Sheet, Limited Release, and Consent 

Form do not contain sufficient information for the targeted former employees to accept or not 

accept the $100 offer from Defendant. Plaintiff respectfully submits the Court has the requisite 

clear record under Rule 23(d)(1) to invalidate the 16 Limited Releases and Consent Forms obtained 

by Defendant (and any others that come to light), and to enter the further relief Plaintiff set forth 

its prayer for relief in its opening brief, which it reasserts here. (See Doc. 43-1, at 15). 

Dated: August 19, 2021

Respectfully submitted,

SAMUEL DONETS, individually and on behalf of 

all others similarly situated

By: /s/ Wallace C. Solberg

Wallace C. Solberg

Ryan M. Kelly

ANDERSON + WANCA

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

(847) 368-1500
16

wsolberg@andersonwanca.com

rkelly@andersonwanca.com

Nick Wooten 

NICK WOOTEN, LLC

5125 Burnt Pine Drive

Conway, Arkansas 72034

(833) 937-6389

nick@nickwooten.com

Rusty A. Payton 

PAYTON LEGAL GROUP

20 North Clark Street, Suite 3300

Chicago, Illinois 60602

(773) 682-5210

info@payton.legal

Arthur C. Czaja

LAW OFFICE OF ARTHUR CZAJA

7521 N. Milwaukee Avenue

Niles, Illinois 60714

(847) 647-2106

arthur@czajalawoffices.com

Counsel for Plaintiff and the Putative Class
17

CERTIFICATE OF SERVICE

I hereby certify that on August 19, 2021, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing to all 

attorneys of record. 

s/ Wallace C. Solberg

Wallace C. Solberg