IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAMUEL DONETS,

individually and on behalf of all 

others similarly situated,

Plaintiff,

v.

VIVID SEATS LLC,

Defendant.

No. 20-cv-03551

Judge Franklin U. Valderrama

ORDER

Plaintiff Samuel Donets (Donets), a former employee of Defendant Vivid Seats 

LLC (Vivid Seats) brings this proposed class action against Vivid Seats for alleged 

violations of the Illinois Biometric Information Privacy Act (BIPA). R. 24, Am. 

Compl.1 Vivid Seats moved to dismiss the amended complaint on three bases: (1) 

Donets’ claim is time-barred by the statute of limitations; (2) Donets’ request for 

damages are barred by the Exclusivity Provisions in the Illinois Workers’ 

Compensation Act (IWCA); and (3) Donets has failed to sufficiently assert allegations 

that plausibly establish that Vivid Seats “willfully” or “recklessly” violated BIPA. R. 

30, Mot. Dismiss. Simultaneously with its motion to dismiss, Vivid Seats moved to 

stay the proceedings pending: (1) appeals in two Illinois appellate court cases, (2) a 

petition for leave to appeal to the Illinois Supreme Court, and (3) an interlocutory 

appeal before the Seventh Circuit Court of Appeals. R. 32, Mot. Stay. Vivid Seats 

contends that each pending appeal and petition will inform the Court’s analysis 

regarding the statute of limitations and IWCA’s exclusive remedy provisions. Id.

Donets opposes Vivid Seats’ motion to stay. R. 35, Opp. Mot. Stay. For the reasons 

set forth below, Vivid Seats’ motion to stay is granted in part and denied in part. 

Statement

District courts have the inherent power to control their own dockets, including 

the power to stay proceedings before them. Clinton v. Jones, 520 U.S. 681, 706 (1997) 

(“The District Court has broad discretion to stay proceedings as an incident to its 

power to control its own docket.”); Munson v. Butler, 776 F. App’x 339, 342 (7th Cir. 

1Citations to the docket are indicated by “R.” followed by the docket number and, where 

necessary, a page or paragraph citation.

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2019) (“[A] district court has inherent power to exercise its discretion to stay 

proceedings to avoid unnecessary litigation of the same issues.”). How best to manage 

the court’s docket “calls for the exercise of judgment, which must weigh competing 

interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254–55 

(1936). In evaluating whether to exercise their discretion to stay proceedings, courts 

consider “(1) whether a stay will simplify the issues in question and streamline the 

trial; (2) whether a stay will reduce the burden of litigation on the parties and on the 

court; and (3) whether a stay will unduly prejudice or tactically disadvantage the nonmoving party.” Berkeley*IEOR v. Teradata Operations, Inc., 2019 WL 1077124, at *5 

(N.D. Ill. Mar. 7, 2019).

Statute of Limitations

Vivid Seats contends that this Court should stay the case pending decisions 

from the Illinois Appellate Court in Tims v. Black Horse Carriers, App. No. 1-20-0563 

and Marion v. Ring Container Techs., LLC, App. No. 3-20-0184. Both cases will be 

addressing the currently unsettled question of which statute of limitations period 

applies to BIPA claims. “Federal courts hearing state law claims under diversity ...

apply the forum state’s choice of law rules to select the applicable state substantive 

law.” McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014). In this 

case, Donets’ claims arise under Illinois law. Am. Compl. ¶ 1. Because the Illinois 

Supreme Court has not yet decided the applicable statute of limitations for BIPA 

claims, a decision from the Illinois Appellate Court would likely be binding here.2

See Nationwide Agribusiness Ins. Co. v. Dugan, 810 F.3d 446, 450 (7th Cir. 2015) 

(“Where the Illinois Supreme Court has not ruled on an issue, decisions of the Illinois 

Appellate Courts control, unless there are persuasive indications that the Illinois 

Supreme Court would decide the issue differently.”); see also Vaughan v. Biomat

USA, Inc., 2020 WL 6262359, at *2 (N.D. Ill. Oct. 23, 2020) (staying a BIPA case until 

the Illinois Appellate Court’s decision in Tims).

Vivid Seats also seeks to stay this case pending the Seventh Circuit’s decision 

on an interlocutory appeal in In Re: White Castle System, Inc., No. 20-8029 (Cothron 

v. White Castle Sys., Inc., 467 F. Supp. 3d 604 (N.D. Ill.)). The certified question is 

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 

2Of course, it is possible that the Illinois First District Appellate Court’s decision in Tims will 

conflict with the Illinois Third District Appellate Court’s decision in Marion. If that is the 

case, then this Court must predict how the Illinois Supreme Court would decide the issue. 

Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 636 (7th Cir. 2002). 

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collects or discloses the biometric data in violation of 740 ILCS 15(b) or 15(d).3

Cothron v. White Castle Sys., Inc., No. 19-cv-00382, Dkt. 141 (N.D. Ill. Oct. 1, 2020). 

As noted above, in support of its Motion to Dismiss, Vivid Seats argues that 

Donets’ claims are time-barred. Mot. Dismiss at 3–9. Vivid Seats therefore contends

that a stay would be appropriate because the outcome of the appeals in Tims and 

Marion will constitute decisional authority that this Court should consider, which 

could potentially dispose of the entire case or at the least significantly reduce Donets’ 

and the class’ claims in scope and value. Similarly, Vivid Seats correctly states that 

the Seventh Circuit’s decision in White Castle will be binding on this Court. 

Donets opposes the stay, arguing that “there is no reason to suspect that the 

Appellate Court in Tims or Marion would depart from what seems to be an 

elementary application of an unambiguous statute to the undisputed facts of a case” 

and hold that BIPA claims are subject to a five (5)-year limitations period. Opp. Mot. 

Stay at 8. Donets further argues that the certified question on appeal in White Castle

is unlikely to change the statute of limitations analysis, because the plain language 

of the statute makes clear that BIPA is violated each and every time an entity collects 

or discloses an individual’s biometric data. Id. at 9 (citing Peatry v. Bimbo Bakeries 

USA, Inc., 393 F. Supp. 3d 766, 769 (N.D. Ill. 2019)). 

The Court finds it appropriate to stay this case pending the Tims and Marion 

Illinois Appellate Court decisions on the applicable statute of limitations. The Tims

and Marion decisions could control the Court’s resolution of the timeliness issue and 

guide the parties’ positions as they proceed with this litigation. See Nationwide

Agribusiness Ins., 810 F.3d at 450. And at least two judges in this District have stayed 

similar cases pending the Illinois Appellate Court’s decision in Tims. See Vaughan, 

2020 WL 6262359, at *2; Bell v. SDH Servs. W., LLC, 20-cv-3181, Dkt. 22 (N.D. Ill. 

Aug. 27, 2020). Both courts reasoned that the benefits of a stay pending a potentially 

dispositive decision outweighed the potential risks of the delay. In Bell, the court held 

that a stay was appropriate even though a statute of limitations argument was not 

appropriate for a motion to dismiss because the plaintiff did not include any relevant 

dates in the complaint. Bell, 20-cv-3181, Dkt. 22. Here, as Vivid Seats argues in its 

motion to dismiss, Donets included dates in his complaint, alleging that he used the 

time clock at issue “since at least 2015.” Mot. Dismiss at 8 (citing Am. Compl. ¶ 27). 

So Vivid Seats’ statute of limitations argument is properly raised on a motion to

3The full question on appeal is: 

Whether a private entity violates Sections 15(b) or 15(d) of the Illinois Biometric 

Information Privacy Act, 740 ILCS 14/1 et seq., only when it is alleged to have first 

collected (§ 15(b)) or to have first disclosed (§ 15(d)) biometric information or biometric 

identifiers (“biometric data”) of an individual without complying with the 

requirements of those Sections, or whether a violation occurs each time that a private 

entity allegedly collects (§ 15(b)) or discloses (§ 15(d)) the individual’s biometric data 

without complying with the requirements of the applicable subsection.

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dismiss, and the Illinois Appellate Court’s decisions in Tims and Marion could be 

dispositive.

A stay is also appropriate pending the Seventh Circuit’s White Castle decision 

on when an injury occurs under BIPA. Contrary to Donets’ argument that BIPA is 

“unambiguous and dispositive” as to when a violation occurs, as the district court in 

White Castle noted upon certification of the interlocutory appeal, “reasonable minds 

can and have differed as to the clarity of BIPA’s statutory text and the extent to which 

suppositions about legislative intent should shape courts’ application of it.” White 

Castle Sys., Inc., No. 19-cv-00382, Dkt. 141. As Vivid Seats points out, the district 

court in White Castle stayed proceedings pending the Seventh Circuit’s interlocutory 

review, and the Seventh Circuit held that such a stay was “warranted.” White Castle 

Sys., Inc., No. 19-cv-00382, Dkt. 145; White Castle, No. 20-8029, Dkt. 9 (7th Cir. Nov. 

9, 2020). So too here, the Seventh Circuit’s decision may limit or eliminate Donets’ 

and the class’ timely claims and a stay is appropriate pending the appeal. Despite 

Donets’ argument that the outcome of White Castle will never dispose of the case, 

Opp. Mot. Stay at 12—if the Seventh Circuit disagrees with the district court, and 

holds that a violation occurs only when the entity first collects or first discloses an 

individual’s biometric data, it may dispose of Donets’ claim if the Illinois Appellate 

Court were to hold that a one-year statute of limitations applies. Regardless of 

whether it disposes of the case, the Seventh Circuit’s decision will impact the size of 

the class.

According to Vivid Seats, a stay would conserve the parties’ and judicial 

resources, saving expenditures on potentially costly motion practice and discovery.

Donets raises several arguments in opposition to the stay. He contends that a stay 

would unnecessarily delay the case and will not streamline the litigation. Opp. Mot. 

Stay at 11–12. He also argues that a stay will allow Vivid Seats to continue 

“to store and potentially use his biometric data in violation of BIPA.” Id. at 11. 

Although the Court is mindful of the harms associated with the retention and 

potential misuse of sensitive data, a stay will cause minimal, if any, additional harm 

to Donets in this case, given the limited nature of the stay.4 Moreover, Donets asserts 

that Vivid Seats is storing and “potentially” using sensitive data in violation of BIPA.

When presented with arguments like these, courts have concluded that stays are still 

appropriate considering countervailing interests weighing in favor of a stay. See,

e.g., Vaughan, 2020 WL 6262359, at *3. Donets’ concerns do not justify denying Vivid 

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

this litigation. See id.; see also Bell, 20-cv-3181, Dkt. 22; Treadwell v. Power Sols.

Int’l, Inc., 18-cv-8212, Dkt. 120 (N.D. Ill. Apr. 1, 2020) (concluding that the plaintiff's 

4This Court understands that both Tims and Marion are fully briefed. The Seventh Circuit 

granted the petition for permission to appeal in White Castle on November 9, 2020. A briefing 

schedule has not yet been set. 

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concerns did not justify denying a request for a stay, “especially when weighed 

against the time and expense the parties will expend in litigating his claims”).

Illinois Workers Compensation Act

Vivid Seats also requests that the Court stay this case pending the decision of 

the Illinois Supreme Court on the defendant’s petition for leave to appeal in 

McDonald v. Symphony Bronzeville Park, LLC. Mot. Stay ¶ 4, Ex. 4, McDonald Pet. 

The defendant seeks to appeal the Illinois Appellate Court’s unanimous holding that 

the exclusivity provisions of the IWCA do not bar claims brought under BIPA. 

McDonald Pet. at 2. True, as Vivid Seats argues, the answer to that question would 

directly impact the outcome of Vivid Seats’ second basis for dismissal—IWCA 

preemption. Mot. Stay ¶¶ 4, 6. But, as Donets contends, not only has the Illinois 

Supreme Court not yet accepted the petition, but also myriad state and federal 

district courts have held as did Illinois Appellate Court in McDonald, that the IWCA 

does not preempt BIPA claims. Opp. Mot. Stay at 6–7 (collecting cases). Additionally, 

many state courts, and at least one federal district court, have refused to stay BIPA 

litigation pending resolution of an appeal of the IWCA preemption issue. Id. at 13–

14 (collecting cases); Mintun v. Kenco Logistics Servs. LLC, 2020 WL 1700328, at *2 

(C.D. Ill. Apr. 7, 2020).5 Without ruling on the question directly, this Court agrees 

with the court in Mintun that it is unlikely that the Illinois Supreme Court would 

rule that IWCA preempts BIPA. 2020 WL 1700328, at *2. 

Moreover, unlike the stay pending the Illinois Appellate Court’s decisions on 

the fully-briefed appeals in Tims and Marion, and the interlocutory appeal currently 

pending before the Seventh Circuit, the Illinois Supreme Court has not yet granted 

the petition for leave to appeal in McDonald, and thus, the stay would not be as 

limited in duration. Contra Vaughan, 2020 WL 6262359, at *2 (a stay would be 

limited and unlikely to prejudice a party where it would be in place pending an 

appellate decision on a fully briefed case). Therefore, Vivid Seats’ Motion to Stay the 

proceedings pending the Illinois Supreme Court’s decision in McDonald is denied.

For the foregoing reasons, Vivid Seats’ Motion to Stay [32] is granted in part 

and denied in part. The Court stays this case pending the Illinois Appellate Court’s 

decisions in Tims v. Black Horse Carriers, App. No. 1-20-0563 and Marion v. Ring 

Container Techs., LLC, App. No. 3-20-0184 and pending the Seventh Circuit’s 

5As Vivid Seats points out, at least two other judges in this District granted stays while 

McDonald was pending before the Illinois Appellate Court. Bell, 20-cv-3181, Dkt. 22;

Treadwell, 18-cv-8212, Dkt. 120. Since Bell and Treadwell were stayed, the Illinois Appellate 

Court issued its decision in McDonald, unanimously holding against IWCA preemption. Both 

courts have continued the stays since the Illinois Appellate Court issued its decision; 

however, this Court granted a continuance of the stay in Treadwell at the parties’ request 

because they are engaged in settlement negotiations, not because of the pending Illinois 

Supreme Court decision on the petition for leave to appeal. 18-cv-8212, Dkt. 125, 126.

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decision in In Re: White Castle Sys., Inc., No. 20-8029. The parties are to file a status 

report by February 15, 2021 to update the Court on the status of these cases. Vivid 

Seats’ Motion to Dismiss [30] is denied without prejudice with leave to refile once the 

stay is lifted.

Date: 12/15/2020

United States District Judge

Franklin U. Valderrama

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