IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JAMES NOSAL, individually and on 

behalf of all others similarly situated, 

 Plaintiffs, 

 v. 

RICH PRODUCTS CORPORATION, 

 Defendant. 

No. 20-cv-04972 

Judge John F. Kness 

MEMORANDUM OPINION AND ORDER 

Plaintiff James Nosal brings this purported class action suit under the Illinois 

Biometric Information Privacy Act (BIPA) against Defendant Rich Products 

Corporation. (Dkt. 1-1.) Plaintiff, a former employee of Defendant, alleges that 

Defendant improperly collected, stored, used, and disseminated his fingerprints in 

their employee database run by ADP. (Id. ¶ 32.) Plaintiff further alleges that 

employees were required to provide their biometric information once they were hired, 

and that Defendant failed to adequately follow BIPA guidelines. (Id. ¶ 33.) According 

to Plaintiff, Defendant “lacks a retention schedule and guidelines for permanently 

destroying Plaintiff’s and other similarly-situated individuals’ biometric data and has 

not and will not destroy Plaintiff’s and other similarly-situated individuals’ biometric 

data when the initial purpose for collecting or obtaining such data has been satisfied 

or within three years of the individual’s last interaction with the company.” (Id. ¶ 35.) 

Plaintiff, individually and on behalf of a purported class, filed a complaint 

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against Defendant in the Circuit Court of Cook County, Illinois and alleged violations 

of BIPA sections 15(a), 15(b)(1), 15(b)(2), 15(b)(3), and 15(d). (Id. ¶¶ 63–90.) 

Defendant timely removed this matter to the United States District Court for the 

Northern District of Illinois under diversity jurisdiction and the Class Action 

Fairness Act. (Dkt. 1.) 

Defendant has moved to dismiss Plaintiff’s complaint under Rule 12(b)(6) of 

the Federal Rules of Civil Procedure. (Dkt. 14 at 2.) Plaintiff asserts that the relevant 

statute of limitations has expired, that BIPA claims are preempted by the Illinois 

Worker’s Compensation Act, and that the complaint fails to meet the Twombly-Iqbal 

plausibility standard. (Id. at 1–2.) Plaintiff responds to Defendant’s motion by 

requesting that his section 15(a) claim be severed and remanded to state court 

because Plaintiff allegedly lacks Article III standing to bring that claim in federal 

court. (Dkt. 19 at 14.) As to the remaining claims, Plaintiff contends that Defendant’s 

grounds for dismissal are without merit. (Id. at 15–31.) While Defendant’s motion to 

dismiss was pending, the Court stayed the case in anticipation of several decisions 

from the Supreme Court of Illinois that address key issues in this case. (Dkt. 29.) Now 

that the Supreme Court of Illinois has issued those decisions, the Court will resolve 

Defendant’s motion. 

As explained below, because Plaintiff has alleged that Defendant unlawfully 

retained his biometric data, Plaintiff has Article III standing to bring his section 15(a) 

BIPA claim. As a result, the Court denies Plaintiff’s request to sever and remand the 

section 15(a) claim. Defendant’s motion to dismiss (Dkt. 14) is denied. Plaintiff’s BIPA 

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claims are timely because a five-year statute of limitations applies, and a separate 

BIPA claim accrued each time Plaintiff scanned his fingerprints during his 

employment. Plaintiff’s BIPA claims are not preempted by the Illinois Worker’s 

Compensation Act, and the allegations in the complaint satisfy the Twombly-Iqbal 

plausibility pleading standard. For these reasons, Defendant’s motion to dismiss 

(Dkt. 14) is denied. 

I. LEGAL STANDARDS 

A. Standing 

“[A]s always, ‘subject-matter jurisdiction is the first issue in any case.’ ” Woods 

v. FleetPride, Inc., 2022 WL 900163, at *3 (N.D. Ill. Mar. 27, 2022) (quoting Miller v. 

Southwest Airlines Co., 926 F.3d 898, 902 (7th Cir. 2019)). If, after removal of a case 

from a state court, it “appears that the district court lacks subject matter jurisdiction, 

the case shall be remanded.” Id. (quoting 28 U.S.C. § 1447(c)) (cleaned up). It is the 

party seeking removal that “bears the burden of establishing federal jurisdiction.” Id.

(quoting Tri-State Water Treatment, Inc. v. Bauer, 845 F.3d 350, 352 (7th Cir. 2017)). 

Article III of the Constitution requires an actual case or controversy between 

the parties. Deveraux v. City of Chicago, 14 F.3d 328, 330 (7th Cir. 1994). Three 

requirements must be met for Article III standing: “(1) [the plaintiff] must have 

suffered an actual or imminent, concrete and particularized injury-in-fact; (2) there 

must be a causal connection between h[is] injury and the conduct complained of; and 

(3) there must be a likelihood that this injury will be redressed by a favorable 

decision.” Bryant v. Compass Grp. USA, Inc., 958 F.3d 617, 621–622 (7th Cir. 2020), 

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as amended (June 30, 2020) (citing Lujan v. Defs. of Wildlife, 504 U.S.555, 560–61 

(1992)). 

B. Motion to Dismiss 

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to 

state a claim upon which relief may be granted.” Hallinan v. Frat. Ord. of Police of 

Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Each complaint “must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 

on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 8(a)(2) (A complaint must 

include “a short and plain statement of the claim showing that the pleader is entitled 

to relief.”). A plaintiff’s allegations “must be enough to raise a right to relief above the 

speculative level” and “give the defendant fair notice of what the claim is and the 

grounds upon which it rests.” Twombly, 550 U.S. at 555 (cleaned up). Although legal 

conclusions are not entitled to the assumption of truth, the Court, in evaluating a 

motion to dismiss, must accept as true the complaint’s factual allegations and draw 

reasonable inferences in the plaintiff’s favor. See Iqbal, 556 U.S. at 678–79. 

II. DISCUSSION 

A. Article III Standing for the Section 15(a) Claim 

As the party seeking removal, Defendant bears the burden of establishing 

Plaintiff’s standing to pursue his section 15(a) claim. See Bryant, 958 F.3d at 620 

(noting the “role reversal in the arguments” in removal cases). Only the first standing 

requirement—injury-in-fact—is contested here: namely, whether any injury suffered 

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by Plaintiff was “caused directly by [Defendant’s] failure to comply with BIPA, and 

the prospect of statutory damages shows that such an injury is redressable.” Id. at 

621. Plaintiff relies on Bryant, 958 F.3d at 626, to argue that there is no injury-in-fact, 

while Defendant relies on a later Seventh Circuit decision, Fox v. Dakkota Integrated 

Systems, LLC, 980 F.3d 1146 (7th Cir. 2020), to argue the contrary. 

In Bryant, the plaintiff alleged only that the defendant had failed to disclose to 

the public its “written policy . . . establishing a retention schedule and guidelines for 

permanently destroying biometric identifiers and biometric information.” 958 F.3d at 

626. Because the defendant’s “duty to disclose [its retention policy] under section 

15(a) is owed to the public generally, not to particular persons whose biometric 

information the entity collects,” the plaintiff alleged “no particularized harm” from 

the defendant’s violation and thus lacked Article III standing. Id. 

In Fox, however, the Seventh Circuit recognized “the limits of [Bryant’s] section 

15(a) holding,” which applies only when the plaintiff alleges solely a violation of “the 

section 15(a) duty to publicly disclose data retention and destruction protocols.” Fox, 

980 F.3d at 1154 (emphasis in original). Fox’s section 15(a) claim was “much broader” 

because the plaintiff had alleged that the defendant violated “the full range of its 

section 15(a) duties by failing to develop, publicly disclose, and comply with a 

data-retention schedule and guidelines” for destruction of biometric data. Id. 

(emphasis in original). As the Seventh Circuit explained, the unlawful retention “of 

a person’s biometric data is [a] concrete and particularized” injury because it exceeds 

the plaintiff’s scope of consent regarding how the data will be used. See id. at 1154–

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55. Because the plaintiff alleged broader injurious acts than had the plaintiff in 

Bryant, the Fox plaintiff had standing. Id. at 1156. 

Plaintiff here alleges that Defendant violated section 15(a) by failing to 

“institute, maintain and adhere to [a] publicly-available retention schedule,” and that 

Defendant “has not and will not destroy Plaintiff’s . . . biometric data when the initial 

purpose for collecting or obtaining such data has been satisfied.” (Dkt. 1-1, at 9, 15.) 

Plaintiff alleges more than the mere failure-to-disclose violation found insufficient in 

Bryant: rather, Plaintiff contends that Defendant has unlawfully retained his data, 

which is an injury-in-fact sufficient for standing under Fox. As a result, Plaintiff has 

standing to pursue his section 15(a) claim in federal court.1

B. Statute of Limitations 

There is no BIPA-specific statute of limitations. This omission has led the 

parties to dispute the applicable limitations period. Defendant argues that Plaintiff’s 

alleged harms involve privacy and so asks the Court to apply the one-year statute of 

limitations for matters “violating the right of privacy.” (Dkt. 15 at 5 (quoting 735 

ILCS 5/13-201).) If the Court does not apply the one-year limitation, however, then 

Defendant posits that, because BIPA claims can be analogized to personal injuries, a 

two-year statute of limitation must apply. (Id. at 8.) Plaintiff disagrees, contending 

1 Plaintiff relies in part on the district court’s decision in Fox, which was issued after 

Bryant. See Fox v. Dakkota Integrated Sys., LLC, 2020 WL 8409665, at *2 (N.D. Ill. July 23, 

2020). But the Seventh Circuit reversed the district court after Plaintiff filed his response to 

the motion to dismiss, and Plaintiff thus did not have the opportunity to comment on the 

effect of the Seventh Circuit’s decision in Fox. No further comment from Plaintiff is necessary, 

though, because the Court holds that Plaintiff’s pleadings mirror those found sufficient to 

establish standing in Fox. See Frey v. E.P.A., 270 F.3d 1129, 1131–32 (7th Cir. 2001). 

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that Illinois’s default five-year statute of limitations applies. (Dkt. 19 at 6.) While this 

case was stayed, the Supreme Court of Illinois decided Tims v. Black Horse Carriers, 

Inc., which explains that a five-year limitations period applies to all BIPA claims. 

2023 WL 1458046, at *1, *3 (Ill. Feb. 2, 2023) (“[W]e find that the five-year limitations 

period contained in [735 ILCS 5/13-205] governs claims under [BIPA]” and “the 

appellate court erred in applying two different statutes of limitations to [BIPA].”). 

Accordingly, the Court applies a five-year statute of limitations to Plaintiff’s BIPA 

claims. 

Defendant nonetheless contends that Plaintiff’s BIPA claims accrued, if ever, 

only upon the initial violation in 2012, thus putting Plaintiff out of the statute of 

limitations period. (Dkt. 24 at 5.) By contrast, Plaintiff argues that his BIPA claims 

against Defendant accrued—and the statute of limitations period began to run—each 

time he scanned his fingerprint. (Dkt. 19 at 13.) In Cothron v. White Castle System, 

Inc., the Supreme Court of Illinois again supplied the rule of decision and held that a 

separate “claim accrues under [BIPA] with every scan or transmission of biometric 

identifiers or biometric information without prior informed consent.” 2023 WL 

4567389, at *7–*8 (Ill. Feb. 17, 2023) (“[W]e reject White Castle’s argument that we 

should limit a claim under section 15 to the first time that a private entity scans or 

transmits a party’s biometric identifier or biometric information.”). Accordingly, the 

Court must reject Defendant’s accrual argument. 

Plaintiff’s BIPA claims, as alleged, are timely. Plaintiff filed his complaint on 

June 18, 2018. (Dkt. 1-4 at 2). A five-year statute of limitations applies to all BIPA 

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claims. Tims, 2023 WL 1458046, at *1, *3. Plaintiff’s BIPA claims that accrued on or 

after June 18, 2013 are thus timely. A new BIPA claim accrues every time the plaintiff 

scans or transmits his biometric information without prior informed consent. 

Cothron, 2023 WL 4567389, at *7–*8. Plaintiff alleges that he was required to scan, 

without prior informed consent, his “fingerprints multiple times each day to ‘punch’ 

in and out of work.” (Dkt. 1-1 ¶¶ 31–32.) Plaintiff was employed by Defendant from 

November 2012 until November 2017. (Id. ¶ 40.) A separate, timely BIPA claim thus 

accrued each time Plaintiff scanned his fingerprints from June 18, 2013 until his 

employment ended in November 2017. Accordingly, Defendant’s motion to dismiss 

Plaintiff’s BIPA claims as untimely must be denied. 

C. Preemption 

An employee who suffers a compensable, work-related injury will find his or 

her remedy exclusively under the Illinois Workers’ Compensation Act. See McDonald 

v. Symphony Bronzeville Park, LLC, 193 N.E.3d 1253, 1264–65 (Ill. 2022) (citing 820 

ILCS §§ 305/5(a) and 305/11). Defendant argues that Plaintiff’s recovery is precluded 

because his “injury” occurred during his employment. (Dkt. 15 at 11.) Plaintiff argues 

that the Illinois Workers’ Compensation Act is inapplicable because BIPA violations 

are not the type of injury contemplated by the Act. (Dkt. 19 at 18.) 

In McDonald v. Symphony Bronzeville Park, LLC, the Supreme Court of 

Illinois unanimously decided that BIPA lawsuits are not preempted by the Worker’s 

Compensation Act. See 193 N.E.3d at 1269. Defendant’s motion to dismiss based on 

preemption must therefore be denied.

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D. Plausibility Standard 

Plaintiff’s complaint meets the Twombly-Iqbal plausibility standard. 

Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678. Defendant’s motion to dismiss 

spends one bare-bones paragraph reciting the plausibility standard without ever 

explaining how Plaintiff’s complaint fails to meet that standard. (Dkt. 15 at 3–4.) 

Plaintiff’s complaint does not merely recite boilerplate language from the 

statute. (See Dkt. 1.) Rule 8 of the Federal Rules of Civil Procedure specifies that the 

complaint must provide adequate notice and show grounds for plausible relief. Fed. 

R. Civ. P. 8(a)(2). At this stage of litigation, Plaintiff’s claims, taken as true, plausibly 

allege BIPA violations. Defendant’s motion to dismiss for failure to state a claim is 

therefore denied. 

III. CONCLUSION 

Plaintiff has Article III standing, Plaintiff’s claims are timely, his BIPA claims 

are not preempted by the Illinois Workers’ Compensation Act, and his complaint 

plausibly alleges BIPA violations. Defendant’s motion to dismiss (Dkt. 14) is therefore 

denied. 

SO ORDERED in No. 20-cv-04972. 

 

Date: August 22, 2023 

 JOHN F. KNESS 

 United States District Judge 

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