66985069v.4

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAMUEL DONETS, individually and on 

behalf of all others similarly situated,

Plaintiff,

vs.

VIVID SEATS LLC,

Defendant.

Case No. 1:20-cv-03551

Hon. Franklin U. Valderrama 

JOINT INITIAL STATUS REPORT UNDER RULE 26(f)

The parties have conferred as required by Rule 26(f), and jointly submit the following 

discovery plan. See Fed. R. Civ. P. 26(f)(2); Fed. R. Civ. P. 26(f)(3); Fed. R. Civ. P. 16(b). The 

parties understand that the Court will enter a scheduling order under Rule 16(b)(1), and that the 

Court will modify any such schedule “only for good cause.” See Fed. R. Civ. P. 16(b)(4).

I. Nature of the Case

A. Attorneys of record for each party including lead trial attorney and any local counsel.

For Plaintiff: 

Nick Wooten - Lead and Trial Counsel

NICK WOOTEN, LLC

5125 Burnt Pine Drive

Conway, Arkansas 72034

(833) 937-6389

nick@nickwooten.com

Rusty A. Payton (Illinois Bar No. 6201771)

PAYTON LEGAL GROUP

20 North Clark Street, Suite 3300

Chicago, Illinois 60602

(773) 682-5210

info@payton.legal

Arthur C. Czaja (Illinois Bar No. 6291494)

LAW OFFICE OF ARTHUR CZAJA

7521 N. Milwaukee Avenue

For Defendant: 

Richard McArdle (Illinois Bar No. 6216504) -

Lead and Trial Counsel

Joseph A Donado (Illinois Bar No. 6277386)

SEYFARTH SHAW LLP

233 S. Wacker Drive, Suite 8000 

Chicago, Illinois 60606-6448

(312) 460-5634

rmcardle@seyfarth.com

jdonado@seyfarth.com

Mark Mester (Illinois Bar No. 6196140) 

Robert C. Collins III (Illinois Bar No. 6304674)

Renatta A. Gorski (Illinois Bar No. 6332737)

LATHAM & WATKINS LLP

330 North Wabash Avenue, Suite 2800

Chicago, IL 60611

(312) 876-6566

Case: 1:20-cv-03551 Document #: 36 Filed: 12/01/20 Page 1 of 7 PageID #:321
2

66985069v.4

Niles, Illinois 60714

(847) 647-2106

arthur@czajalawoffices.com

mark.mester@lw.com

robert.collins@lw.com

renatta.gorski@lw.com

B. State the basis for federal jurisdiction. If based on diversity, state the domicile of all 

parties. As a reminder, domicile is different than residence – the former is what 

counts for diversity purposes. See Heinen v. Northrop Grumman Corp., 671 F.3d 

669 (7th Cir. 2012). 

If the basis of jurisdiction is diversity, please remember that a corporation is treated 

differently than an LLC/LLP. Please note two things. First, if a party is a corporation, 

counsel must identify its place of incorporation and its principal place of business. 

Second, if a party is a partnership or a limited liability company, counsel must 

identify the name and domicile(s) of each and every partner/member of each such 

entity. See Belleville Catering Co. v. Champaign Market Place LLC, 350 F.3d 691 

(7th Cir. 2003); Cosgrove v. Bartolotta, 150 F.3d 729 (7th Cir. 1998); Carden v. 

Arkoma Assoc., 494 U.S. 185 (1990). If any partners or members are themselves 

partnerships or LLCs, the rule applies to their partners or members, too.

The Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2) because the case 

satisfies the elements necessary for the Court to exercise original jurisdiction under 

CAFA. Plaintiff is a citizen of Illinois. Defendant is a Delaware limited liability 

company with its principal place of business in Illinois. At least one member of the 

class is of diverse citizenship to Defendant.

C. Provide a short overview of the case in plain English (five sentences or less). 

This is a class action brought under the Illinois Biometric Privacy Act. Plaintiff

claims Defendant used a fingerprint scanner for time keeping purposes in violation 

of BIPA. Plaintiff claims from Defendant liquidated damages under the Act for each 

member of the class for each violation. 

D. Describe the claims asserted in the complaint and the counterclaims and/or thirdparty claims and/or affirmative defenses.

Donets claims liquidated damages for every violation of BIPA for each class 

member. Donets contends there are multiple scans per day per plaintiff. Donets also 

claims that every retention or distribution of each scan is also a separate violation of 

BIPA. 

Defendant asserts the following defenses:

Among other things, Vivid has asserted in its pending motion to dismiss that 

Donets’s claims are time-barred due to the statute of limitations; that the Exclusivity 

Provisions in the IWCA preempt Donets’ claims for damages; and that Donets has 

failed to plausibly establish that Vivid “willfully” or “recklessly” violated BIPA.

Case: 1:20-cv-03551 Document #: 36 Filed: 12/01/20 Page 2 of 7 PageID #:322
3

66985069v.4

E. Principal factual issues.

The class period; the number of potential class members; the number of alleged BIPA 

violations, if any, subject to a claim for liquidated damages; whether Vivid acted 

with the requisite intent under BIPA - i.e., “negligently,” “recklessly,” or 

“intentionally.” 

F. Principal legal issues.

The applicable statute of limitations. 

Whether the Exclusivity Provisions of the IWCA preempt Donets’s claims. 

Whether Plaintiff can establish that BIPA applies to Defendant or that Defendant 

violated BIPA

The number of actionable violations, if any.

The culpability of the conduct in question. 

G. What relief is the plaintiff seeking? Quantify the damages, if any. (A ballpark

estimate is acceptable – the purpose is simply to give the Court a feel the case. This

estimate will not be admissible.). 

Plaintiff’s estimates, drawn from information shared by the Defendant and assuming 

a five-year statute of limitations, puts the damages at $95,000,000 if the Court finds

there are two negligent violations per day per putative class member, for the putative 

class period. Any increase in violations per day or an increase to heightened 

liquidated damages for recklessness or willfulness would increase the damages 

accordingly. 

H. Defendant has been served.

II. Discovery

A. Propose a discovery schedule. Include the following deadlines: (1) Rule 21(a)(1) 

disclosures; (2) any amendment to the pleadings to add new claims, or new parties; 

(3) service of process on any “John Doe” defendants; (4) the completion of fact 

discovery; (5) the disclosure of plaintiff’s expert report(s); (6) the deposition of 

plaintiff’s expert; (7) the disclosure of defendant’s expert(s); (8) the deposition of 

defendant’s expert; and (9) dispositive motions. Fill in the blanks, below.

Also, submit a Word version of the proposed scheduling order to Judge Valderrama’s 

proposed order inbox, Proposed_Order_Valderrama@ilnd.uscourts.gov. The 

template is available on the Court’s webpage. 

Plaintiff proposes the following schedule:

Case: 1:20-cv-03551 Document #: 36 Filed: 12/01/20 Page 3 of 7 PageID #:323
4

66985069v.4

Event Deadline

Rule 26(a)(1) disclosures January 15, 2020

Amendment to the pleadings Only with Court’s permission going forward

Service of process on any “John Does” None 

Completion of Class Certification Discovery March 27, 2021

Deadline to File Class Certification Motion April 16, 2021

Opposition to Certification Due May 14, 2021

Reply to Opposition to Certification Due May 28, 2021

Completion of Merits Discovery September 24, 2021

Disclosure of Plaintiff’s Expert Report(s) October 22, 2021

Deposition of Plaintiff’s Expert November 12, 2021

Disclosure of Defendant’s Expert Report(s) December 3, 2021

Deposition of Defendant’s Expert December 17, 2021

Dispositive Motions January 21, 2022

Dispositive Motion Responses February 18, 2022

Dispositive Motion Replies March 4, 2022

In light of Defendant’s pending Motions to Stay and to Dismiss, Defendant proposes that discovery 

be deferred until after the Court rules on both motions. If the Court denies those motions, then 

Defendant proposes that discovery be set as follows:

Completion of Class Certification Discovery and Class Certification Motion: Within 6 months of 

the Court’s rulings on Defendant’s Motion to Stay and Motion to Dismiss.

Completion of Merits Discovery: Within 6 months of the Court’s ruling on Plaintiff’s Motion for 

Class Certification.

Defendant proposes that the remaining deadlines be scheduled after the completion of merits 

discovery.

Case: 1:20-cv-03551 Document #: 36 Filed: 12/01/20 Page 4 of 7 PageID #:324
5

66985069v.4

B. How many depositions do the parties expect to take? 

Plaintiff: Up to 10 fact depositions split between certification and merits

Defendant: Up to 10 fact witness depositions.

C. Do the parties foresee any special issues during discovery?

No. 

D. Rule 26(f)(2) requires the parties to propose a discovery plan. See Fed. R. Civ. P. 

26(f)(2). Rule 26(f)(3), in turn, provides that a “discovery plan must state the parties’ 

views and proposals” on six different topics. See Fed. R. Civ. P. 26(f)(3). Have the 

parties discussed a discovery plan – including all of the topics – as required by Rule 

26(f)(3)? If so, do the parties propose anything?

If the parties do make any proposals, be sure to include them in the proposed 

scheduling order that will be sent to Judge Valderrama’s proposed order inbox.

Parties Discovery Plan: 

Changes to Disclosure requirements: 

Because this is a class action the parties propose to bifurcate discovery into 

certification and merits. This report includes the parties’ proposed deadlines for each 

phase of discovery.

The parties do not anticipate any issues with ESI that will need the Court’s 

intervention. The case is relatively straightforward and Defendant indicates that it 

has the relevant records in a form accessible and capable of being produced. 

The parties do not believe there are any special issues regarding privilege or 

protection of trial preparation materials.

The parties agree to limit interrogatories to 30 including subparts. The parties agree 

to limit requests for production to 30 including subparts. 

The parties are not aware of any other orders the Court should enter regarding 

discovery.

III. Trial

A. Have any of the parties demanded a jury trial?

Plaintiff has demanded a jury trial. 

B. Estimate the length of trial.

Case: 1:20-cv-03551 Document #: 36 Filed: 12/01/20 Page 5 of 7 PageID #:325
6

66985069v.4

10 full trial days. 

IV. Settlement, Referrals, and Consent

A. Have any settlement discussions taken place? If so, what is the status? Has the 

plaintiff made a written settlement demand? And if so, did the defendant respond in 

writing? (Do not provide any particulars of any demands or offers that have been 

made.)

The parties discussed an early mediation in the case. Defendant provided information 

about the size of the putative class and the applicable class period. However, as the

parties began to discuss damages, their efforts to settle fell apart. 

B. Do the parties request a settlement conference at this time before this Court or the 

Magistrate Judge?

The parties are aware of the availability of a settlement conference with the 

Magistrate. The parties currently do not believe this would be fruitful. 

C. Have counsel informed their respective clients about the possibility of proceeding 

before the assigned Magistrate Judge for all purposes, including trial and entry of 

final judgment? Do all parties unanimously consent to that procedure? The Court 

strongly encourages parties to consent to the jurisdiction of the Magistrate Judge.

The parties do not agree to proceed before the Magistrate for all purposes. 

V. Other

A. Is there anything else that the plaintiff wants the Court to know? N/A.

B. Is there anything else that the defendant wants the Court to know? N/A.

Dated: December 1, 2020 Respectfully submitted,

/s/ Nick Wooten

Nick Wooten

NICK WOOTEN, LLC

5125 Burnt Pine Drive

Conway, Arkansas 72034

(833) 937-6389

nick@nickwooten.com

Rusty A. Payton (Illinois Bar No. 6201771)

PAYTON LEGAL GROUP

20 North Clark Street, Suite 3300

Chicago, Illinois 60602

/s/ Joseph A. Donado

Richard McArdle (Illinois Bar No. 6216504)

Joseph A Donado (Illinois Bar No. 6277386)

SEYFARTH SHAW LLP

233 S. Wacker Drive, Suite 8000 

Chicago, Illinois 60606-6448

(312) 460-5634

rmcardle@seyfarth.com

jdonado@seyfarth.com

Robert C. Collins III (Illinois Bar No. 6304674)

Mark Mester (Illinois Bar No. 6196140)

Case: 1:20-cv-03551 Document #: 36 Filed: 12/01/20 Page 6 of 7 PageID #:326
7

66985069v.4

(773) 682-5210

info@payton.legal

Arthur C. Czaja (Illinois Bar No. 6291494)

LAW OFFICE OF ARTHUR CZAJA

7521 N. Milwaukee Avenue

Niles, Illinois 60714

(847) 647-2106

arthur@czajalawoffices.com

Counsel for Plaintiff

Renatta A. Gorski (Illinois Bar No. 6332737)

LATHAM & WATKINS LLP

330 North Wabash Avenue, Suite 2800

Chicago, IL 60611

(312) 876-6566

robert.collins@lw.com

mark.mester@lw.com

renatta.gorski@lw.com

Counsel for Defendant

Case: 1:20-cv-03551 Document #: 36 Filed: 12/01/20 Page 7 of 7 PageID #:327