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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

CITIZENS INSURANCE COMPANY of ) 

AMERICA, a Michigan corporation, ) 

) 

) 

Plaintiff, ) 

) 

vs. ) Civil Action No.: 

) 

WYNNDALCO ENTERPRISES, LLC, ) 

an Illinois limited liability company ; MELISSA ) 

THORNLEY, DEBORAH BENJAMIN-KOLLER, ) 

and JOSUE HERRERA, individually and on behalf ) 

of all others similarly situated, ) 

) 

Defendants. ) 

COMPLAINT FOR DECLARATORY JUDGMENT 

Plaintiff Citizens Insurance Company of America (“Citizens”), by and though its counsel of 

record, and for its Complaint against Defendants Wynndalco Enterprises, LLC (“Wynndalco”), 

Melissa Thornley (“Thornley”), Deborah Benjamin-Koller (“Benjamin-Koller’”), and Josue Herrera 

(“Herrera”), states as follows: 

INTRODUCTION 

1. This is an insurance coverage dispute between Citizens and Wynndalco. Citizens 

seeks a declaration that it has no duty to defend or indemnify Wynndalco under a Business Owners 

Policy containing a General Liability Coverage Part in connection with the underlying putative class 

action suit captioned Thornley, et al. v. CDW-Government, LLC , et al., bearing Case No. 20 CH 

04346, filed in the Circuit Court of Cook County, Illinois. 

PARTIES, JURISDICTION AND VENUE 

2. Jurisdiction in this matter is based upon diversity of citizenship pursuant to 28 U.S.C. 

§1332(a)(1). 

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3. Plaintiff, Citizens, is a corporation organized under the laws of the State of Michigan, 

with its principal place of business in Worcester, Massachusetts. 

4. Defendant, Wynndalco, is a limited liability company organized under the laws of the 

state of Illinois, with its principal place of business in Mokena, Illinois. 

5. All members of Wynndalco, LLC are citizens of the State of Illinois. 

6. Defendant, Thornley, is a citizen of the State of Illinois. Thornley is joined in this suit 

as a necessary party defendant. 

7. Defendant, Benjamin-Koller, is a citizen of the State of Illinois. Koller is joined in 

this suit as a necessary party defendant. 

8. Defendant, Herrera, is a citizen of the State of Illinois. Herrera is joined in this suit as 

a necessary party defendant. 

9. The Thornley Lawsuit for which Wynndalco seeks a defense and indemnity is a 

putative class action. The Citizens Policy has Limits of Liability of $2 million Each Occurrence and 

$4 million in the Aggregate. 

10. Diversity jurisdiction exists because: (a) there is complete diversity of citizenship 

between Plaintiff Citizens, and all Defendants, and (b) the amount in controversy, including the 

potential costs of both defending and indemnifying Wynndalco, substantially exceeds $75,000. 

11. Venue is appropriate under 28 U.S.C. § 1391 because the making of the insurance 

contract at issue, which forms the basis of this action occurred in the Northern District of Illinois. 

FACTUAL BACKGROUND 

A. The Policy 

12. Citizens issued Business Owners Policy No. OBC-H062078-00 to Wynndalco, 

effective October 2, 2019 to October 2, 2020 (the “Policy”). A true and correct copy of the Policy is 

attached hereto as Exhibit A. The Policy contains a Business Liability Coverage Part. 

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B. The Thornley Lawsuit 

13. On May 27, 2020, Melissa Thornley, Deborah Benjamin-Koller, and Josue Herrera 

(collectively the “Named Plaintiffs”) filed a putative class action against CDW-Government, LLC 

(“CDW”) and Wynndalco Enterprises, LLC (“Wynndalco”) in the Circuit Court of Cook County 

Illinois, bearing Case No. 2020 CH 04346 (the “Thornley Lawsuit”). A true and correct copy of the 

Complaint filed in the Thornley Lawsuit is attached hereto as Exhibit B. 

14. The Complaint alleges Clearview AI, Inc. (“Clearview AI”) is an artificial 

intelligence company founded in 2016 that secretly created a database of over three billion facial 

scans (the “Clearview AI Database” or “Database”) and a facial recognition application (the 

“Clearview AI App” or “App”) that enable App users in Illinois to identify individuals by comparing 

the individuals’ facial scans to the facial scans of individuals included in the Clearview AI Database. 

According to the Complaint, Clearview AI created its Database of facial scans through the use of 

proprietary algorithms that enable it to convert photographs in the Database to biometric facial 

recognition identifiers. The Complaint further alleges that Clearview AI obtained the photographs 

for its Database by “scraping” photographs posted and accessible on the internet from, among other 

sources, social media platforms Facebook, Twitter, Instagram, and LinkedIn, video sharing platform 

YouTube, and payment platform Venmo. (“Scraping” is the automated extraction of data from 

websites.) 

15. The Named Plaintiffs allege that for a number of years prior hereto and to the present 

time, Plaintiffs maintained accounts containing accessible photographs of their facial images on the 

Facebook, Instagram, and LinkedIn social media platforms, the digital payment platform Venmo, 

and on the YouTube video-sharing platform. The Complaint alleges that because the Named 

Plaintiffs’ photographs were posted and accessible on one or more of the platforms scraped by 

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Clearview AI, their photographs were collected into the Clearview AI Database, converted to 

biometric facial recognition identifiers and maintained in the Database during the Class Period in 

both their original and biometric formats. 

16. The Named Plaintiffs also allege that Clearview AI’s authorized Wynndalco to 

license or sell access to the Clearview AI App and Database to customers based in Illinois. 

According to the Complaint, Wynndalco possessed, marketed, and sold or otherwise profited in 

Illinois from the biometric identifiers and biometric information in the Clearview AI App and 

Database. The Named Plaintiffs further allege that Wynndalco caused access to the Clearview AI 

App and Database to be delivered to users in Illinois for use in Illinois to conduct searches using the 

Clearview AI Database, and received payment and profited from such conduct. 

17. According to the Complaint, the Named Plaintiffs are unaware of any user who 

uploaded photographs of any of the Named Plaintiffs or who sought to identify any of the Named 

Plaintiffs by using the Clearview AI App during the Class Period. The Complaint further alleges that 

during the Class Period, the Named Plaintiffs’ biometric identifiers or biometric information in the 

Clearview AI App were not disclosed to any users of the Clearview AI App or to any third-parties. 

18. The proposed class as set forth in the Complaint includes: 

All current Illinois citizens whose biometric identifiers or biometric 

information were, without their knowledge, in the Clearview AI Database 

when Defendants sold access to the Clearview AI Database to users in Illinois 

at any time from January 1, 2019 to January 17, 2020 (the “Class Period”) and 

who suffered no injury from Defendants’ violations of Section 15(c) of BIPA 

other than statutory aggrievement in that there is no evidence that during the 

Class Period: (i) a photograph of the Class member was ever uploaded to the 

Clearview AI App by any user of the Clearview AI App; (ii) any user of the 

Clearview AI App sought to use the Clearview AI App and Database to 

identify them; and (iii) their biometric identifiers or biometric information in 

the Clearview AI Database were never disclosed to any users of the Clearview 

AI App or any third-parties. 

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19. Named Plaintiffs allege Wynndalco, during the Class Period, intentionally sold access 

to or otherwise profited from Named Plaintiffs’ and the Class’s biometric identifiers or biometric 

information in violation of Section 15(c) of BIPA, and seeks a declaration that Wynndalco’s actions 

violate Section 15(c) of BIPA and were intentional and/or reckless. The Complaint also seeks an 

award of statutory damages of $5,000 per Named Plaintiff and Class member for each intentional 

and/or reckless violation of BIPA, or, in the alternative, statutory damages of $1,000 per Named 

Plaintiff and Class member for each negligent violation of BIPA. 

20. Wynndalco has requested coverage from Citizens for the Thornley Lawsuit. Citizens 

contends that it has no obligation to defend or indemnify Wynndalco against the Thornley Lawsuit. 

Accordingly, an actual controversy exists between Citizens, on the one hand, and Wynndalco, on the 

other hand, and by the terms and provisions of Rule 57 of the Federal Rules of Civil Procedure and 

28 U.S.C. §§ 2201 and 2202, this Court is invested with the power to declare the rights and liabilities 

of the parties hereto and to grant such relief as it deems necessary and proper. 

COUNT I – DECALRATORY JUDGMENT 

(Insuring Agreement) 

21. Plaintiff adopts and repeats the allegations of Paragraph 1 through 20 as and for 

Paragraph 21, as though the same were fully set forth herein. 

22. The Liability Insuring Agreement in the Policy provides, in pertinent part: 

SECTION II - LIABILITY 

A. Coverages 

1. Business Liability 

a. We will pay those sums the insured 

becomes legally obligated to pay as 

damages because of "bodily injury", 

"property damage" or "personal and 

advertising injury" to which this insurance 

applies. We will have the right and duty to 

defend the insured against any "suit" 

seeking those damages. However, we will 

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have no duty to defend the insured against 

any "suit" seeking damages for "bodily 

injury", "property damage" or "personal 

and advertising injury", to which this 

insurance does not apply. We may, at our 

discretion, investigate any "occurrence" or 

any offense and settle any claim or "suit" 

that may result. But: 

*** 

b. This insurance applies: 

(1) To "bodily injury" and "property damage" 

only if: 

(a) The "bodily injury" or "property 

damage" is caused by an 

"occurrence" that takes place in 

the "coverage territory"; 

*** 

(2) To "personal and advertising injury" 

caused by an offense arising out of 

your business, but only if the offense 

was committed in the "coverage 

territory" during the policy period. 

23. The Policy contains the following Definitions: 

3. "Bodily injury" means bodily injury, 

sickness or disease sustained by a 

person, including death resulting from any 

of these at any time. "Bodily injury" 

includes mental anguish or other mental 

injury resulting from "bodily injury". 

*** 

13. "Occurrence" means an accident, 

including continuous or repeated 

exposure to substantially the same 

general harmful conditions. 

*** 

14. "Personal and advertising injury" means 

injury, including consequential "bodily 

injury", arising out of one or more of the 

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following offenses: 

a. False arrest, detention or 

imprisonment; 

b. Malicious prosecution; 

c. The wrongful eviction from, wrongful 

entry into, or invasion of the right of 

private occupancy of a room, dwelling 

or premises that a person occupies, 

committed by or on behalf of its 

owner, landlord or lessor; 

d. Oral or written publication, in any 

manner, of material that slanders or 

libels a person or organization or 

disparages a person's or 

organization's goods, products or 

services; 

e. Oral or written publication, in any 

manner, of material that violates a 

person's right of privacy; 

f. The use of another's advertising idea 

in your "advertisement"; or 

g. Infringing upon another's copyright, 

trade dress or slogan in your 

"advertisement". 

*** 

17. "Property damage" means: 

a. Physical injury to tangible property, 

including all resulting loss of use of 

that property. All such loss of use 

shall be deemed to occur at the time 

of the physical injury that caused it; 

or 

b. Loss of use of tangible property that 

is not physically injured. All such 

loss of use shall be deemed to 

occur at the time of the 

"occurrence" that caused it. 

For the purposes of this insurance, 

electronic data is not tangible property. 

As used in this definition, electronic 

data means information, facts or 

programs stored as, created or used on, 

or transmitted to or from computer 

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software, including systems and 

applications software, hard or floppy 

disks, CD-ROMs, tapes, drives, cells, 

data processing devices or any other 

media which are used with 

electronically controlled equipment. 

24. The Thornley Complaint alleges that Wynndalco intentionally sold access to or 

otherwise profited from Named Plaintiffs’ and the Class’s biometric identifiers or biometric 

information in violation of Section 15(c) of BIPA. 

25. The Thornley Complaint, therefore, does not allege any “bodily injury” or “property 

damage” caused by an “occurrence”. 

26. The Thornley Complaint does not allege that Wynndalco published material violating 

a person’s right of privacy or otherwise allege or involve any offense contained in the “personal and 

advertising injury” definition. 

27. Alternatively, any alleged “personal or advertising injury” that was committed prior 

to the inception of the Policy is not covered by the Policy. 

28. Alternatively, any award for intentional or willful violations of BIPA do not 

constitute covered damages under the Policy and/or otherwise uninsurable as a matter of public 

policy. 

29. The Thornley Lawsuit consequently does not fall within the scope of coverage 

provided by the Insuring Agreement in the Policy. 

30. The Policy, therefore, does not actually or potentially provide coverage for the 

Thornley Lawsuit. 

31. Accordingly, Citizens has no duty to defend or indemnify Wynndalco against the 

Thornley Lawsuit. 

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WHEREFORE, Citizens respectfully requests that this Honorable Court declare that Citizens 

has no duty to defend or indemnify Wynndalco in connection with the Thornley Lawsuit, and grant 

any other relief that it deems just and equitable under the circumstances, including the award of 

costs. 

COUNT II – DECLARATORY JUDGMENT 

(Distribution of Material in Violation of Statutes Exclusion) 

32. Plaintiff adopts and repeats the allegations of Paragraph 1 through 20 as and for 

Paragraph 32, as though the same were fully set forth herein. 

33. The Policy contains the following exclusion: 

This insurance does not apply to: 

q. Distribution Of Material In Violation Of Statutes 

“Bodily injury”, “property damage”, or 

“personal and advertising injury” arising 

directly or indirectly out of any action or 

omission that violates or is alleged to violate: 

(1) The Telephone Consumer Protection Act 

(TCPA), including any amendment of or 

addition to such law; 

(2) The CAN-SPAM Act of 2003, including any 

amendment of or addition to such law; 

(3) The Fair Credit Reporting Act (FCRA), and 

any amendment of or addition to such law, 

including the Fair and Accurate Credit 

Transactions Act (FACTA); or 

(4) Any other laws, statutes, ordinances, or regulations, 

that address, prohibit, or limit the printing, 

dissemination, disposal, collecting, 

recording, sending, transmitting, 

communicating or distribution of material or 

information. 

34. The Thornley Complaint alleges that Wynndalco violated BIPA, a state statute, that 

addresses the collection, storage, and use of biometric information. 

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35. Thus, even assuming the Thornley Complaint alleges “personal and advertising 

injury”, such injury arises directly or indirectly out of any action or omission that violates or is 

alleged to violate any other law, statute, ordinance, or regulation that addresses, prohibits, or limits 

the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or 

distribution of material or information. 

36. The Distribution Of Material Or Information In Violation Of Statutes Exclusion, 

therefore, precludes coverage for the Thornley Lawsuit under the Policy. 

37. As a result, the Policy does not actually or potentially provide coverage for the 

Thornley Lawsuit. 

38. Citizens consequently has no duty to defend or indemnify Wynndalco against the 

Thornley Lawsuit. 

WHEREFORE, Citizens respectfully requests that this Honorable Court declare that Citizens 

has no duty to defend or indemnify Wynndalco in connection with the Thornley Lawsuit, and grant 

any other relief that it deems just and equitable under the circumstances, including the award of 

costs. 

COUNT III – DECLARTORY JUDGMENT 

(Prior Publication Exclusion) 

39. Plaintiff adopts and repeats the allegations of Paragraph 1 through 20 as and for 

Paragraph 39, as though the same were fully set forth herein. 

40. The Policies contain the following exclusion: 

This insurance does not apply to: 

c. Material Published Prior To Policy Period 

"Personal and advertising injury" arising out of 

oral or written publication, in any manner, of 

material whose first publication took place 

before the beginning of the policy period. 

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41. The Complaint seeks to recover for Wynndalco selling access to the Clearview AI 

Database in violation of BIPA during the Class Period of January 1, 2019 to January 17, 2020. 

42. Thus, even assuming the Thornley Complaint alleges any “personal and advertising 

injury”, such injury arises out of publication of material whose first publication took place before 

the beginning of the policy period on October 2, 2019. 

43. The Material Published Prior to Policy Period Exclusion, therefore, precludes 

coverage for the Thornley Lawsuit. 

44. The Policy does not actually or potentially provide coverage for the Thornley 

Lawsuit. 

45. Accordingly, Citizens has no duty to defend or indemnify Wynndalco against the 

Thornley Lawsuit under the Policy. 

WHEREFORE, Citizens respectfully requests that this Honorable Court declare that Citizens 

has no duty to defend or indemnify Wynndalco in connection with the Thornley Lawsuit, and grant 

any other relief that it deems just and equitable under the circumstances, including the award of 

costs. 

Respectfully submitted, 

Citizens Insurance Company of America 

By: /s/ Kelly M. Ognibene 

One of its Attorneys 

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Jeffrey A. Goldwater, Esq. (ARDC 6189014) 

Kelly M. Ognibene, Esq. (ARDC 6297327) 

LEWIS BRISBOIS BISGAARD & SMITH LLP

550 West Adams Street, Suite 300 

Chicago, Illinois 60661 

Telephone: 312.345.1718 

Facsimile: 312.345.1778 

Jeffrey.goldwater@lewisbrisbois.com

Kelly.ognibene@lewisbrisbois.com

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