Watson v. Legacy Healthcare Financial Services, LLC

                                         No. 1-21-0279
                                Opinion filed December 15, 2021
                                                                     THIRD DIVISION


                                            IN THE
                              APPELLATE COURT OF ILLINOIS
                                      FIRST DISTRICT


BRANDON WATSON, Individually and on               )   Appeal from the Circuit Court
Behalf of All Others Similarly Situated,          )   of Cook County.
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
       v.                                         )   No. 2019 CH 03425
                                                  )
LEGACY HEALTHCARE FINANCIAL                       )   The Honorable
SERVICES, LLC, d/b/a Legacy                       )   Pamela McLean Meyerson,
Healthcare; LINCOLN PARK                          )   Judge, presiding.
SKILLED NURSING FACILITY, LLC,                    )
d/b/a Warren Barr Lincoln Park,                   )
a/k/a The Grove Lincoln Park; and                 )
SOUTH LOOP SKILLED NURSING                        )
FACILITY, LLC, d/b/a Warren Barr                  )
South Loop,                                       )
                                                  )
       Defendants                                 )
                                                  )
(Legacy Healthcare Financial Services,            )
LLC, d/b/a Legacy Healthcare, and Lincoln         )
Park Skilled Nursing Facility, LLC, d/b/a         )
Warren Barr Lincoln Park, a/k/a The Grove         )
at Lincoln Park,                                  )
                                                  )
       Defendants-Appellees).                     )

            PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
            Justices McBride and Burke concurred in the judgment and opinion.


                                       OPINION
     No. 1-21-0279



¶1              On this interlocutory appeal, plaintiff Brandon Watson appeals the trial court’s order

        dismissing two of the defendants in this case: (1) Legacy Healthcare Financial Services, LLC,

        d/b/a Legacy Healthcare (Legacy); and (2) Lincoln Park Skilled Nursing Facility, LLC d/b/a

        Warren Barr Lincoln Park a/k/a The Grove at Lincoln Park (Lincoln Park). The remaining

        defendant, South Loop Skilled Nursing Facility, LLC, d/b/a Warren Barr South Loop (South

        Loop), was not dismissed and is not a party to this appeal.

¶2              The trial court’s order dismissed Legacy and Lincoln Park pursuant to section 2-

        619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2018)), which

        permits dismissal if “the action was not commenced within the time limited by law.” The trial

        court found (1) that a person’s claim under the Biometric Information Privacy Act (Act) (740

        ILCS 14/1 et seq. (West 2018)) accrues the first time that his or her biometric information is

        obtained by a particular entity, (2) that the statute of limitations for the Act is five years; and

        (3) that more than five years had elapsed between when Legacy and Lincoln first obtained

        plaintiff’s biometric information and when he filed suit, thereby requiring their dismissal from

        his suit.

¶3              On appeal, neither side contests the trial court’s finding that the statute of limitations is

        five years. Defendants ask us to affirm the trial court’s dismissal without challenging that

        finding, and plaintiff asks us to reverse the dismissal while preserving that finding. Thus, this

        issue, of the applicable term of years of the statute of limitations, is not before us on this

        interlocutory appeal.

¶4              For the following reasons, we reverse and remand for further proceedings consistent

        with this opinion.



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¶5                                             BACKGROUND

¶6                                             I. The Complaint

¶7              Since a section 2-619 motion admits the legal sufficiency of the complaint, we describe

        below the complaint’s allegations regarding the parties and events giving rising to the suit. See,

        e.g., DeLuna v. Burciaga, 

 (2006).

¶8              On March 15, 2019, plaintiff filed a complaint alleging that he had worked as a certified

        nursing assistant for defendants at different locations in Chicago. The complaint alleges that

        Legacy provides health care services at 26 facilities throughout the State of Illinois, and that it

        is “the sole member and owner” of both Lincoln Park and South Loop. Both Lincoln Park and

        South Loop provide residential health care services. Lincoln Park does so at its facility at 2732

        Hampden Court, Chicago, while South Loop does so at its separate facility at 1725 South

        Wabash Street, Chicago. The complaint alleges that plaintiff worked at Lincoln Park from

        December 27, 2012, through February 21, 2019, and at South Loop from May 2017 through

        November 2017.

¶9              The complaint alleges that from the start of plaintiff’s employment with defendants in

        2012 through the end of his employment in 2019, he was “required to have his fingerprint

        and/or handprint collected and/or captured so that Defendants could store it and use it moving

        forward as an authentication method.” 1 Specifically, plaintiff alleges that he was “required to

        place his entire hand on a panel to be scanned in order to ‘clock in’ and ‘clock out’ of work”

        each day.




                1
                 Plaintiff alleges: “Due to the fact that Plaintiff had to place his entire hand on Defendants’
        biometric scanner, and because Defendants provided no information about the device, Plaintiff is not
        certain whether Defendants took scans of only his fingerprints, only his handprint, or of both his
        fingerprints and handprints.”
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       No. 1-21-0279


¶ 10             Plaintiff alleges that defendants committed four “distinct” types of violations under the

          Act. The Act requires an entity that utilizes biometric data (1) to publicly provide a written

          policy governing the retention and permanent destruction of biometric information, (2) to

          inform any subject in writing that his or her biometric information is being collected or stored,

          (3) to inform the subject in writing of the specific purpose and length of time for which his or

          her biometric information is being stored and used, and (4) to obtain his or her written consent.

          740 ILCS 14/15(a), (b) (West 2018). The complaint alleges that defendants violated the Act

          by failing to satisfy all four of these requirements.

¶ 11             In relief, plaintiff seeks, among other things, the statutory damages provided by the Act

          (740 ILCS 14/20 (West 2018)) and certification as a class action.

¶ 12                                  II. Defendants’ Motion to Dismiss

¶ 13             On May 20, 2019, defendants filed a section 2-619 motion to dismiss, arguing that

          plaintiff’s claim accrued on the first day they collected plaintiff’s biometric information and

          that plaintiff’s suit was time-barred. In the alternative, defendants argued that plaintiff’s claim

          was preempted by the Workers’ Compensation Act (820 ILCS 305/5(a), 11 (West 2018)) and

          the Labor Management Relations Act of 1947 (LMRA) (

(a) (2018)). In support

          of their motion, defendants attached the affidavit of Justin Choi, the human resources director

          of Lincoln Park, who averred that plaintiff was employed at Lincoln Park from December 27,

          2012, to February 21, 2019, as a certified nursing assistant.

¶ 14             In response, plaintiff argued that his suit was not time-barred because the statute of

          limitations was five years and it accrued with each capture of his biometric information that

          defendants obtained without providing notice or obtaining consent.




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       No. 1-21-0279


¶ 15                In the alternative, plaintiff argued that, even if the trial court found that his claim

          accrued only with the initial scan of his hand, his claims against Legacy and South Loop could

          not be dismissed because he did not begin working for South Loop until May 2017. Plaintiff

          also argued that his claims were not preempted by either the Workers’ Compensation Act or

          LMRA.

¶ 16                On June 10, 2020, the trial court granted defendants’ motion to dismiss, finding (1) that

          plaintiff’s claim accrued with the initial scan on December 27, 2012; (2) that the statute of

          limitations was five years; and (3) that his suit, filed on March 15, 2019, was therefore time-

          barred.

¶ 17                The trial court observed: “This holding disposes of the case, but the Court will address

          Defendants’ other arguments for the record.” The court then found that plaintiff’s claim was

          not preempted by either the Workers’ Compensation Act or LMRA.

¶ 18                                   III. Plaintiff’s Motion to Reconsider

¶ 19                On July 9, 2020, plaintiff moved to reconsider on the ground that the trial court erred

          by failing to consider separately the accrual dates for each defendant. Specifically, plaintiff

          argued that he did not work for South Loop until 2017 and, thus, its first scan of plaintiff’s

          hand was within the five-year statute of limitations found by the trial court. Plaintiff alleges

          that defendants “captured” and used his fingerprints or handscan during the entire period of his

          employment with them, which lasted from (1) December 27, 2012, through February 21, 2019,

          for Legacy and Lincoln Park and (2) May through November 2017, for South Loop.

¶ 20                Plaintiff also moved to reconsider on the ground of newly discovered evidence that

          showed that Lincoln Park did not exist as a legal entity until July 23, 2015. Plaintiff argued

          that, since Lincoln Park did not exist prior to that date, its first scan of plaintiff was within the


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       No. 1-21-0279


          five-year statute of limitations. The supporting evidence submitted by plaintiff was a printout

          from the Illinois Secretary of State’s website showing that Lincoln Park filed its articles of

          organization on July 23, 2015.

¶ 21              Plaintiff conceded in his motion that, after July 23, 2015, he “noticed that certain

          changes had occurred, particularly that the name on the logos, uniforms, and building awnings

          had changed from *** ‘The Grove’ to ‘Warren Barr Lincoln Park’ ” and that “his paychecks

          looked different.” However, he asked the trial court to consider the information about this date

          newly discovered because he was “not aware that these changes had any legal significance or

          evidentiary relevance *** since his lived experience was simply that he continued working at

          the same place and in the same job.”

¶ 22              The trial court found that plaintiff’s evidence was not newly discovered, but it agreed

          that it had erred by not considering separately the accrual date for South Loop since plaintiff

          had made this argument in his response to defendants’ motion to dismiss. The trial court

          granted plaintiff’s motion in part by vacating its decision to dismiss South Loop, but it affirmed

          its prior order in all other respects.

¶ 23                                         IV. Rule 304(a) Finding

¶ 24              On February 23, 2021, the trial court granted plaintiff’s motion for entry of a finding

          pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8. 2016). The trial court found that

          there was no just reason to delay an appeal from its orders entered June 10, 2020, and January

          27, 2021, “as to Legacy and Lincoln Park.”

¶ 25              Plaintiff filed a notice of appeal on March 12, 2021, and this timely appeal followed.

          The Restaurant Law Center, the Retail Litigation Center, Inc., and LeadingAge Illinois filed




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       No. 1-21-0279


          motions with the appellate court for leave to file amicus curiae briefs in support of defendants.

          These motions were taken with the case.

¶ 26                                             ANALYSIS

¶ 27                                        I. Standard of Review

¶ 28              As noted, the trial court dismissed Legacy and Lincoln Park pursuant to section 2-619.

          “A motion to dismiss, pursuant to section 2-619 of the Code, admits the legal sufficiency of

          the plaintiffs’ complaint, but asserts an affirmative defense or other matter that avoids or

          defeats the plaintiffs’ claim.” DeLuna, 

; Solaia Technology, LLC v. Specialty

          Publishing Co., 

 (2006). “[T]he movant is essentially saying ‘ “Yes, the

          complaint was legally sufficient, but an affirmative matter exists that defeats the claim.” ’ ”

          Reynolds v. Jimmy John’s Enterprises, LLC, 

 (quoting Winters

          v. Wangler, 

 (2008)). Dismissal is permitted based on certain listed

          “defects” (735 ILCS 5/2-619(a)(1)-(8) (West 2018)) or some “other affirmative matter” (735

          ILCS 5/2-619(a)(9) (West 2018)) outside the complaint. Reynolds, 

.

¶ 29              On an appeal from a section 2-619 dismissal, our standard of review is de novo.

          Hernandez v. Lifeline Ambulance, LLC, 

; Solaia Technology, 

. De novo review means that we perform the same analysis a trial court would perform.

          Khan v. BDO Seidman, LLP, 

 (2011). “Under the de novo standard

          of review, this court owes no deference to the trial court.” People v. Williams, 

 (citing Townsend v. Sears, Roebuck & Co., 

 (2007)).

¶ 30              In ruling on a section 2-619 motion to dismiss, a court must interpret the pleadings and

          supporting materials in the light most favorable to the nonmoving party. Van Meter v. Darien


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       No. 1-21-0279


          Park District, 

 (2003). “[A] court must accept as true all well-pled facts

          in the plaintiff’s complaint and any reasonable inferences that arise from those facts.”

          Hernandez, 

. Additionally, we may affirm on any basis appearing in the

          record, whether or not the trial court relied on that basis and whether or not the trial court’s

          reasoning was correct. Khan v. Fur Keeps Animal Rescue, Inc., 

; Mullins v. Evans, 

.

¶ 31                                      II. Statutory Interpretation

¶ 32             Plaintiff’s claim requires us to interpret the Act’s statutory language and decide what

          it requires. The interpretation of a statute is a question of law that is reviewed de novo. VC&M,

          Ltd. v. Andrews, 

. As noted above, de novo consideration means that we

          perform the same analysis that a trial judge would perform. A.M. Realty Western L.L.C. v.

          MSMC Realty, L.L.C., 

.

¶ 33                                          A. Plain Language

¶ 34             With statutory interpretation, our primary objective is to ascertain and give effect to the

          intent of the statute’s drafters. VC&M, Ltd., 

. The most reliable indicator

          of the drafters’ intent is the language used in the statute itself, which should be given its plain

          and ordinary meaning. VC&M, Ltd., 

.

¶ 35                                       B. Dictionary Definition

¶ 36             “When a statute does not define its own terms, a reviewing court may use a dictionary

          to ascertain the plain and ordinary meaning of those terms.” Maschek v. City of Chicago, 

 (citing People v. McChriston, 

, and People v.

          Bingham, 

); see also People v. Chapman, 

 (“When




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       No. 1-21-0279


          a statute contains a term that is not specifically defined, it is entirely appropriate to look to the

          dictionary to ascertain the plain and ordinary meaning of the term.”).

¶ 37                                              C. Objectives

¶ 38              “When interpreting a statute, we do not read a portion of it in isolation; instead, we read

          it in its entirety, keeping in mind the subject it addresses and the drafters’ apparent objective

          in enacting it.” People v. Miles, 

; People v. Chatman, 

. When considering the drafters’ objective, we examine the problems

          that the legislature intended to remedy with the law and the consequences of construing it one

          way or the other. People v. Almond, 

 (we “consider the reason for the law

          and the problems intended to be remedied”); People v. Eppinger, 

          (legislative intent may be ascertained by considering “the statute in its entirety, its nature and

          object, and the consequences of construing it one way or the other”).

¶ 39                                             D. Every Word

¶ 40              “In addition, whenever possible, every word, clause, and sentence is to be given

          reasonable meaning and shall not be treated as superfluous or rendered void.” Mulry v. Berrios,

          

; People v. Harmon, 

, ¶ 68 (“one of

          the principles of statutory interpretation is that we should give effect to every word and section

          of the statute”); Speedy Gonzalez Landscaping, Inc. v. O.C.A. Construction, Inc., 

 (2008) (“ ‘If possible, courts must give effect to every word, clause, and sentence

          and may not read a statute so as to render any part inoperative, superfluous, or insignificant.’ ”

          (quoting Newland v. Budget Rent-A-Car Systems, Inc., 

 (2001))).




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       No. 1-21-0279


¶ 41                                        E. Legislative History

¶ 42              Where the language is plain and unambiguous, we apply the statute without resort to

          further aids of statutory interpretation. In re Lance H., 

; Krohe v. City of

          Bloomington, 

 (2003); Maschek, 

 (“If the

          statutory language is clear, we must apply it, without resort to any aids of statutory

          construction.”). “If, and only if, the statutory language is ambiguous, we may look to other

          sources to ascertain the legislature’s intent.” Maschek, 

 (citing

          Krohe, 

). “These other sources include primarily the statute’s legislative

          history and debates.” Maschek, 

 (citing Krohe, 

).

¶ 43              “When interpreting an ambiguous phrase in a statute, our supreme court looks

          especially to the remarks of a bill’s sponsor.” Maschek, 

 (citing

          Krohe, 

); see also In re Pension Reform Litigation, 

          (giving more weight to the remarks of “the chief sponsor of the legislation”); Julie Q. v.

          Department of Children & Family Services, 

 (quoting the sponsor’s

          remarks when interpreting a statute). “The remarks made immediately prior to passage are

          particularly important.” Maschek, 

 (citing Poris v. Lake

          Holiday Property Owners Ass’n, 

 (quoting the sponsors’ remarks in

          order to interpret a statute and noting that, following these remarks, the bill passed)).

¶ 44                                              III. The Act

¶ 45              Plaintiff argues that the accrual date, for purposes of a statute of limitations, occurred

          with the last scan that lacked notice or consent, and defendants argue that it occurred with the

          first. The Illinois Supreme Court, the Illinois Appellate Court, and the United States Seventh


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       No. 1-21-0279


          Circuit Court of Appeals have yet to address this issue. 2 In the published, federal district court

          case of Cothron v. White Castle System, Inc., 

 (N.D. Ill. 2020), 3 the court

          rejected an argument similar to the one defendants make here. In Cothron, the defendant

          employer argued that the plaintiff employee’s suit under the Act was barred by the statute of

          limitations because her claim accrued on the first day that it obtained her fingerprint for

          purposes of allowing her to access a work computer. Cothron, 477 F. Supp. 3d at 727. The

          district court denied the defendant employer’s motion to dismiss, finding that the plaintiff

          employee had “alleged multiple timely violations” of the Act and that “[t]he number of those

          timely violations will be resolved at a future point.” Cothron, 477 F. Supp. 3d at 734. For the

          reasons explained below, we similarly find that plaintiff’s suit is not barred by the statute of

          limitations and that damage issues will be resolved at a later date.

¶ 46              The Act itself does not contain an express statute of limitation or set forth an accrual

          date. However, as we discuss below, the plain language of the statute establishes that it applies

          to each and every capture and use of plaintiff’s fingerprint or hand scan. Almost every

          substantive section of the Act supports this finding.




                  2
                    Both parties cite unpublished circuit court orders that we decline to consider.
                  3
                    The Seventh Circuit Court of Appeals heard oral argument in the appeal (No. 20-3202) of
          this case on September 14, 2021. See Kristin L. Bryan, Cothron v. White Castle: A Closer Look at
          One of the Most Important Data Privacy Litigations of 2021, 11 Nat’l L. Rev. 256 (Sept. 13, 2021),
          https://www.natlawreview.com/article/cothron-v-white-castle-closer-look-one-most-important-data-
          privacy-litigations-2021 [https://perma.cc/EW2N-PAVM]. During oral argument, the Seventh Circuit
          considered certifying the accrual date question to the Illinois Supreme Court. See Michael W.
          O’Donnell et al., Seventh Circuit Weighs Asking Illinois Supreme Court to Resolve Construction of
          the Biometric Information Privacy Act, Norton Rose Fulbright (Sept. 2021), https://
          www.nortonrosefulbright.com/en-us/knowledge/publications/44932d79/seventh-circuit-weighs-
          asking-supreme-court-to-resolve-the-biometric-information-privacy-act [https://perma.cc/E6J4-
          RNZG]; Ill. S. Ct. R. 20(a) (eff. Aug. 1, 1992) (permitting the Seventh Circuit to certify questions to
          the Illinois Supreme Court).
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       No. 1-21-0279


¶ 47                                          A. Plain Language

¶ 48             In its “Definitions” section, the Act defines a “ ‘[b]iometric identifier’ ” to include a

          “fingerprint” or “scan of hand,” such as what was used here. 740 ILCS 14/10 (West 2018). The

          same section defines “ ‘[b]iometric information’ ” to “mean[ ] any information, regardless of

          how it is captured,” so long as it is “based on an individual’s” fingerprint or hand scan and

          “used to identify an individual.” 740 ILCS 14/10 (West 2018). In the case at bar, defendants

          used “information” based on plaintiff’s handscan or fingerprints to check him into work each

          day and check him out. Since the Act applies to “any information, regardless of how it is

          captured,” it applies, by its plain terms, to the twice-daily “capture[ ]” of plaintiff’s hand “to

          identify” him. 740 ILCS 14/10 (West 2018).

¶ 49             The legislative purpose is easy to discern because the Act’s drafters provided a statutory

          section entitled “[l]egislative findings” and “intent.” 740 ILCS 14/5 (West 2018); Sekura v.

          Krishna Schaumburg Tan, Inc., 

 (the Act’s “legislative purpose

          is easy to discern,” where its drafters provided a statement of intent). This section states that

          the Act serves the public “by regulating the collection, use, safeguarding, handling, storage,

          retention, and destruction of biometric identifiers and information.” 740 ILCS 14/5(g) (West

          2018). The stated purpose, then, is to regulate not simply the “collection” but also everything

          that follows, including the subsequent “use” and “storage” of the collected information. 740

          ILCS 14/5(g) (West 2018). According to this section, the goal of this regulation is to reassure

          a skeptical public and to protect “the individual” who otherwise would have “no recourse.”

          740 ILCS 14/5(c), (d) (West 2018). This section further supports our finding that the Act

          applies to defendants’ subsequent “use” of plaintiff’s hand scan or fingerprints and not just its

          initial collection. 740 ILCS 14/5(g) (West 2018).


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¶ 50             Section 15 of the Act sets forth the obligations for an entity that chooses to utilize

          biometric information.

¶ 51             First, “[a] private entity in possession of biometric identifiers or biometric information

          must develop a written policy, made available to the public, establishing a retention schedule

          and guidelines for permanently destroying biometric identifiers and biometric information

          when the initial purpose for collecting or obtaining such identifiers or information has been

          satisfied or within 3 years of the individual’s last interaction with the private entity, whichever

          occurs first.” 740 ILCS 14/15(a) (West 2018). In the case at bar, “the initial purpose for

          collecting” plaintiff’s “identifiers,” according to the allegations of plaintiff’s complaint, was

          to clock him in and out of work. 740 ILCS 14/15(a) (West 2018). That purpose ended or was

          “satisfied” when he stopped working for defendants. 740 ILCS 14/15(a) (West 2018). With

          respect to Lincoln Park, that date was February 21, 2019. Thus, on February 21, 2019, if not

          earlier, Lincoln Park owed plaintiff a written destruction policy.

¶ 52             Section 15 further provides, in relevant part:

                       “(b) No private entity may collect, capture, purchase, receive through trade, or

                 otherwise obtain a person’s or a customer’s biometric identifier or biometric

                 information, unless it first:

                          (1) informs the subject or the subject’s legally authorized representative in

                       writing that a biometric identifier or biometric information is being collected or

                       stored;

                          (2) informs the subject or the subject’s legally authorized representative in

                       writing of the specific purpose and length of term for which a biometric identifier

                       or biometric information is being collected, stored, and used; and


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                          (3) receives a written release executed by the subject of the biometric identifier

                       or biometric information or the subject’s legally authorized representative.” 740

                       ILCS 14/15(b) (West 2018).

¶ 53              Defendants argues that the Act’s use of the word “first” above means that the

          prohibitions and, hence, the accrual date apply to an entity’s “first” capture or collection. See

          740 ILCS 14/15(b) (West 2018). Unfortunately for defendants, the word “first” does not

          modify or change “collect” or “capture.” See 740 ILCS 14/15(b) (West 2018). Instead, the

          word modifies the words “informs” and “receives.” See 740 ILCS 14/15(b) (West 2018). It

          modifies the entity’s obligations, not the triggering actions. Thus, before collection or capture,

          the entity must “first” inform a subject and receive a release. Defendants seek to rewrite the

          statute so that it reads “before an entity first collects or captures,” but the statute is not written

          that way. There is no modifier limiting “collect” or “capture”; thus, the requirements apply to

          each and every collection and capture. By contrast, there is a temporal limitation on an entity’s

          authority to act; an entity may not collect or capture without “first” informing a subject and

          receiving a release.

¶ 54              This interpretation comports with both the dictionary definitions of these words and the

          legislative history, as we explain below.

¶ 55                                        B. Dictionary Definitions

¶ 56              When seeking dictionary definitions to interpret the Act, our supreme court has turned

          first to Merriam-Webster’s Dictionary, so we will do the same. See Rosenbach v. Six Flags

          Entertainment Corp., 

. When interpreting the Act, this court also relied

          on definitions from Dictionary.com, so below we provide definitions from both dictionaries.

          See Sekura, 

, ¶ 53.


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¶ 57             The word “first” can be used as an adjective, adverb, or noun. See Merriam-Webster

          Online Dictionary, https://www.merriam-webster.com/dictionary/first (last visited Dec. 1,

          2021) [https://perma.cc/8VM3-M8MT]; Dictionary.com, https://www.dictionary.com/

          browse/first (last visited Dec. 1, 2021) [https://perma.cc/Y4YY-RF4J]. In the Act, it is used

          immediately before a verb. As an adverb, the word “first” is defined as “before another”

          (Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/first

          (last visited Dec. 1, 2021)) or “before all others” or “before some other thing, event”

          (Dictionary.com, https://www.dictionary.com/browse/first (last visited Dec. 1, 2021)).

          Applying this definition to the language at hand means that an entity must inform a subject

          and receive a release “before” it collects or captures. As noted above, there is no temporal

          limitation on “collects” or “captures,” thereby applying to the first, as well as the last,

          collection or capture.

¶ 58             The word “capture” can mean “to record in a permanent file (as in a computer)”

          (Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/capture

          (last visited Dec. 1, 2021) [https://perma.cc/5Z2T-EHF9]), as well as “to take by force or

          stratagem; take prisoner; seize” (Dictionary.com, https://www.dictionary.com/browse/

          capture (last visited Dec. 1, 2021) [https://perma.cc/M2QC-96FT]). In the case at bar,

          defendants took or seized their employees’ fingerprints or hand scans each time they clocked

          in or out to record their hours.

¶ 59             The word “collect” can mean “to gather or exact from a number of persons or

          sources” (Merriam-Webster Online Dictionary, https://www.merriam-webster.com/

          dictionary/collect (last visited Dec. 1, 2021) [https://perma.cc/J2G5-M4DN]), as well as “to

          gather together; assemble,” as in “[t]he professor collected the students’ exams”


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       No. 1-21-0279


          (Dictionary.com, https://www.dictionary.com/browse/collect (last visited Dec. 1, 2021)

          [https://perma.cc/JD9M-2KZV]). In the case at bar, defendants “gather[ed] or exact[ed]”

          fingerprints or hand scans “from a number of” their employees at the end of the day in order

          to clock them out, similar to a professor gathering his or her students’ exams at the end of

          class. See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/

          dictionary/collect (last visited Dec. 1, 2021).

¶ 60             Thus, the dictionary definitions confirm our reading of the plain language of the statute

          that its obligations applied to each and every hand scan.

¶ 61                                        C. Legislative History

¶ 62             If the words of a statute are ambiguous, and only if they are ambiguous, may we turn

          to other aides, such as legislative history. Sekura, 

; Maschek,

          

. While we do not find the words ambiguous, we do find that

          the legislative history further supports our finding.

¶ 63             When considering legislative history, a reviewing court pays particular attention to the

          remarks of a bill’s sponsor and to the remarks immediately prior to passage. Sekura, 

; Maschek, 

. Before the House’s passage

          of the Act, Representative Kathleen Ryg, the House sponsor, explained the impetus for this

          act, as follows:

                 “This Bill is especially important because one of the companies that has been piloted

                 in Illinois, Pay By Touch, is the largest fingerprint scan system in Illinois and they have

                 recently filed for bankruptcy and wholly stopped providing verification services in

                 March of 2008. This pullout leaves thousands of customers from Albertson’s, Cub

                 Foods, Farm Fresh, Jewel Osco, Shell, and Sunflower Market wondering what will


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       No. 1-21-0279


                 become of their biometric and financial data. The California Bankruptcy Court recently

                 approved the sale of their Pay By Touch database. So, we are in very serious need of

                 protections for the citizens of Illinois when it comes to biometric information. I know

                 of no opposition to the legislation and I’ll attempt to answer any questions.” 95th Ill.

                 Gen. Assem., House Proceedings, May 30, 2008, at 249 (statements of Representative

                 Ryg).

          There were no questions and no discussion. The bill proceeded immediately to a vote and

          passed the House. It was subsequently passed by the Senate on July 10, 2008, and signed into

          law by the governor on October 3, 2008.

¶ 64             Representative Ryg’s remarks establish that the primary impetus behind the bill was to

          allay the fears of and provide protections for “thousands of” people who had provided their

          biometric data for use as identifiers and who were now left “wondering what will become of”

          this data. 95th Ill. Gen. Assem., House Proceedings, May 30, 2008, at 249 (statements of

          Representative Ryg); Sekura, 

 (“Representative Ryg’s remarks

          establish that the primary impetus behind the bill was to alleviate the fears” of those whose

          biometric data had been seized). This is the position that plaintiff found himself in after leaving

          defendants’ employ without ever having been provided with a statement of defendants’

          destruction policy and schedule.

¶ 65             In short, we find that the plain language of the statute, its legislative history and

          purpose, and the dictionary definitions of its key terms compel us to reject defendants’

          argument that the accrual date occurred with the first collection of plaintiff’s finger or

          handprint.




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       No. 1-21-0279


¶ 66              Defendants argue that, if we find the accrual date is not the first collection, then

          damages will be ruinous for them. However, we do not need to decide at this time whether

          each scan was a new and separate violation or a continuing violation. 4 All we have to determine

          now is whether plaintiff’s suit against these defendants survives their motion to dismiss. See

          Cothron, 477 F. Supp. 3d at 734 (where “it is clear that at least some of [the plaintiff’s] claims

          survive,” a motion to dismiss her complaint must be denied). Questions relating to damages

          are not before us. For this reason, we deny the motion of LeadingAge Illinois to file an

          amicus curiae brief since the predominant focus of its motion and proposed brief is on

          damages. For similar reasons, we deny the motion of Restaurant Law Center and Retail

          Litigation Center, Inc., to file an amicus curiae brief since it also focuses on damages.

¶ 67              As a final note, we observe that both sides made arguments in their briefs and at oral

          argument based on the almost 20-year-old case of Feltmeier v. Feltmeier, 

          (2003), which was decided years before the Act was first passed. In Feltmeier, our supreme

          court found that the plaintiff’s claim of intentional infliction of emotional distress accrued on

          the date of the defendant’s last outrageous act because it was impossible to discern when

          defendant’s conduct became sufficiently outrageous to permit suit. Feltmeier, 

. “Because it is impossible to pinpoint the specific moment when enough conduct ***

          occurred to become actionable, the termination of the conduct provides the most sensible place

          to begin the running of the prescriptive period.” (Internal quotation marks omitted.) Feltmeier,

          

.




                  4
                   Although we do not address the issue of damages for the reasons already explained above,
          we observe that damages are discretionary not mandatory. The Act introduces a list of possible
          damages with the statement that this list constitutes what a “prevailing party may recover.” (Emphasis
          added.) 740 ILCS 14/20 (West 2018).
                                                         18
       No. 1-21-0279


¶ 68             Defendants argue that Feltmeier requires us to find that accrual occurred with the first

          collection, and they quote in support the following statement from Feltmeier: “Generally, a

          limitations period begins to run when facts exist that authorize one party to maintain an action

          against another.” Feltmeier, 

. Defendants argue that, since defendants failed

          to provide notice or obtain consent prior to their initial collection of plaintiff’s biometric

          information, plaintiff could have sued them for that violation at that time and, therefore, the

          “facts exist[ed]” at that time to “authorize” suit. Feltmeier, 

.

¶ 69             This argument has a number of flaws. First, as we discussed above, this argument

          overlooks all the ensuing times defendants violated the statute by their use and capture of

          plaintiff’s biometric information. See 740 ILCS 14/15(b) (West 2018). Second, the quoted

          statement begins with the word “[g]enerally,” indicating that it is not an absolute statement.

          See Feltmeier, 

. Third, the Feltmeier court explained the animating principle

          behind its statement as “The purpose behind a statute of limitations is to prevent stale claims,

          not to preclude claims before they are ripe for adjudication [citation], and certainly not to shield

          a wrongdoer.” Feltmeier, 

. In the case at bar, it would be hard to argue that

          plaintiff’s claim was stale when, only a couple of months prior to filing suit, his employment

          ended with him left “wondering” what would then become of his biometric information. See

          95th Ill. Gen. Assem., House Proceedings, May 30, 2008, at 249 (statements of Representative

          Ryg). It was this type of concern, as we discussed above, that caused lawmakers to draft this

          statute in the first place. Fourth, the Feltmeier court stressed the importance of looking to the

          applicable statute for guidance. See Feltmeier, 

. In the case at bar, the Act

          places the burden of notification of a possible injury squarely on the entity choosing to utilize

          the information rather than on the person from whom the information is obtained. See 740


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       No. 1-21-0279


          ILCS 14/15(b) (West 2018) (entity must “inform[ ] the subject” that biometric information is

          being collected or stored, as well as the specific purpose, length of retention, and destruction

          policy). Lastly, our finding comports with the recent pronouncement of our supreme court in

          this area. With respect to the Act, our supreme court found that, “when a private entity fails to

          comply with one of section 15’s requirements, that violation constitutes an invasion,

          impairment, or denial of the statutory rights of any person.” (Emphasis added.) Rosenbach,

          

. “The violation, in itself, is sufficient to support the individual’s ***

          statutory cause of action.” (Emphasis added.) Rosenbach, 

, ¶ 33. For these

          reasons, we do not find defendants’ arguments persuasive and must reverse the trial court’s

          dismissal order.

¶ 70              Defendants also cite in support Blair v. Nevada Landing Partnership, RBG, LP, 

 (2006). First, Blair was an interpretation of a completely different statute,

          namely, the Right of Publicity Act (Publicity Act) (765 ILCS 1075/1 et seq. (West 2018)), with

          a completely different purpose, as its name—“Publicity”—suggests. The Publicity Act

          provides that “[t]he rights under this Act are property rights that are freely transferable.” 765

          ILCS 1075/15 (West 2018). By contrast, the whole point of the Act at issue here is that

          biometric rights are inherently not transferable. In the section of the Act that sets forth the act’s

          purpose, our legislature observed that biometric information is “unlike” all other “identifiers”

          in that it is “unique” and that, “once compromised, the individual has no recourse.” 740 ILCS

          14/5(c) (West 2018) (titled “Legislative findings; intent”). Second, our supreme court recently

          questioned the logic and reasoning underlying Blair’s findings. See Ciolino v. Simon, 

. Third, the United States District Court for the Southern District of Illinois

          recently rejected arguments based on Blair in a case under the Act. See Stauffer v. Innovative


                                                         20
       No. 1-21-0279


          Heights Fairview Heights, LLC, 

, 904-05 (S.D. Ill. 2020). For these

          reasons, we do not find Blair persuasive.

¶ 71             On this appeal, plaintiff also asks us to find that the trial court erred by denying his

          motion to reconsider based on “newly discovered” evidence. Since we are reversing, we do

          not consider the issue of newly discovered evidence.

¶ 72                                         IV. No Cross Appeal

¶ 73             In their responding brief, defendants raise an issue not raised in plaintiff’s opening

          appellate brief. Defendants ask this court to reverse the trial court’s finding that plaintiff’s

          claims were not preempted by LMRA (

(a)). In his reply brief, plaintiff argues

          that, since defendants failed to file a cross-appeal, this issue is not properly before us on this

          interlocutory appeal. We agree that this issue is not properly before us for the following

          reasons.

¶ 74              “Where a trial court’s judgment is entirely in favor of a party, specific findings of the

          trial court that may have been adverse to the party do not give rise to an appeal.” Argonaut-

          Midwest Insurance Co. v. E.W. Corrigan Construction Co., 

 (2003).

          In the case at bar, the trial court’s judgment was “entirely in favor of a party” since it dismissed

          plaintiff’s suit with prejudice with respect to the two defendants involved in this appeal. See

          Argonaut-Midwest, 

. If we were to consider this issue, we would be

          doing so without the input of the third defendant, whose rights would also be affected by any

          ruling that we would make.

¶ 75             “Where a general decision for the appellee contains findings unfavorable to the

          appellee and no cross-appeal is filed, the adverse findings are not properly before the reviewing

          court.” Cincinnati Insurance Co. v. Chapman, 

; Stevens v.


                                                        21
       No. 1-21-0279


          Village of Oak Brook, 

 (“It is well settled that, in the absence

          of a cross-appeal, a reviewing court is confined to those issues raised by the appellant and will

          not consider those urged by the appellee.”). Defendants chose not to file a cross-appeal as

          permitted by Illinois Supreme Court Rule 303(a)(3) (eff. July 1, 2017).

¶ 76             This appeal was filed pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8,

          2016), which permits an interlocutory appeal with only a limited number of parties, although

          “multiple parties *** are involved in an action.” The rule permits an interlocutory appeal on

          the conditions that (1) there is “a final judgment as to one or more but fewer than all of the

          parties” and (2) “the trial court has made an express written finding.” Ill. S. Ct. R. 304(a) (eff.

          Mar. 8, 2016). In its written order, dated February 23, 2021, the trial court made such an

          express written finding with respect to only Legacy and Lincoln Park, the two defendants in

          this appeal. The third defendant, South Loop, is not before us and, thus, neither are issues

          involving it.


¶ 77             As plaintiff observes, this court has already accepted a certified question regarding this

          same issue, namely, whether LMRA preempts claims under the Act, and this question has been

          fully briefed in another appeal. See Walton v. Roosevelt University, No. 1-21-0011 (Feb. 1,

          2021) (Illinois Supreme Court Rule 308 leave to appeal granted); Ill. S. Ct. R. 308(a) (eff. Oct.

          1, 2019) (permitting an interlocutory appeal on a question certified by the trial court). Thus, a

          decision on this question will issue shortly.

¶ 78             For all the foregoing reasons, we decline to consider the preemption issue raised by




                                                          22
       No. 1-21-0279


          defendants on this interlocutory appeal.

¶ 79                                          CONCLUSION

¶ 80             In sum, we reverse the trial court’s order dismissing Legacy and Lincoln Park from this

          action, and we remand for further proceedings consistent with this opinion.

¶ 81             Reversed and remanded.




                                                     23
No. 1-21-0279



                                  No. 1-21-0279


Cite as:                 Watson v. Legacy Healthcare Financial Services, LLC, 

Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 2019-CH-
                         03425; the Hon. Pamela McLean Meyerson, Judge, presiding.


Attorneys                Alejandro Caffarelli and Alexis D. Martin,      of Caffarelli &
for                      Associates Ltd., of Chicago, for appellant.
Appellant:


Attorneys                Anne E. Larson, Harry J. Secaras, and Michael V. Furlong, of
for                      Ogletree, Deakins, Nash, Smoak & Stewart, P.C., of Chicago, for
Appellee:                appellees.


Amicus Curiae:           Debra R. Bernard, of Perkins Coie LLP, of Chicago, for amicus
                         curiae LeadingAge Illinois.

                         Anneliese Wermuth and Jenny Goltz, of Cozen O’Connor, of
                         Chicago, Meredith C. Slawe and Michael W. McTigue Jr., of
                         Cozen O’Connor, of Philadelphia, Pennsylvania, and Angelo I.
                         Amador, of Restaurant Law Center, and Deborah R. White, of
                         Retail Litigation Center, Inc., both of Washington, D.C., amici
                         curiae.




                                        24