ExamSoft Seeks to Remove Biometrics Lawsuit to Federal Court

On Thursday, defendant ExamSoft Worldwide Inc. filed a notice of removal in a biometrics lawsuit against the company in an effort to remove the lawsuit from the Circuit Court of Cook County, Illinois, to the Northern District of Illinois, Eastern Division, “pursuant to 28 U.S.C. §1441(a), 1446, and 1453, on the ground that federal jurisdiction exists under the Class Action Fairness Act (‘CAFA’).”

As background, in March 2021, the plaintiffs filed a class-action complaint in Illinois state court against ExamSoft alleging that the online testing platform violated the Illinois Biometric Information Privacy Act. In particular, the plaintiffs requested relief on a putative class consisting of “all Illinois residents who used ExamSoft to take an exam online and who had their facial geometry or other biometric information collected, captured, received, or otherwise obtained and/or stored by Defendant.” The plaintiffs also sought relief on behalf of four putative subclasses: The Illinois Bar Exam Subclass, the John Marshall Subclass, the UIC John Marshall Subclass, and the St. George’s Subclass. According to the notice, the plaintiffs claimed that the members of the putative class “‘is substantial, believed to amount to thousands of persons.’”

ExamSoft explained that CAFA’s three federal jurisdiction requirements are met – the class contains more than 100 members, class members are from states other than the defendant, and the amount in controversy exceeds $5 million. ExamSoft averred that the amount in controversy exceeds the minimum requirement as the “claims of the individual class members are aggregated to determine whether the amount in controversy exceeds the required ‘sum or value of $5,000,000, exclusive of interests and costs,” under CAFA. While ExamSoft noted that it denies the allegations and that the plaintiffs or putative class are entitled to relief, “the amount in controversy exceeds the jurisdictional threshold” because the plaintiffs “seek statutory damages of up to $5,000 per violation from ExamSoft for each putative member … and allege that there ‘thousands of persons’ in the class.” According to the complaint, by multiplying $5,000 by the minimum of 2,000 putative class members based on the plaintiffs’ claims, the amount in controversy would be $10 million, double the minimum requirement.

ExamSoft added that other statutory requirements for removal are satisfied, noting that the specified federal court “is the ‘district and division embracing the place where such action is pending,’” there has been no previous application for relief, and the removal notice is timely, among other requirements.

ExamSoft is represented by Mayer Brown LLP.