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FILED
12/8/2020 10:11 AM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
CIRCUIT CLERK
COUNTY DEPARTMENT, CHANCERY DIVISION
COOK COUNTY, IL
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
2020CH04346
MELISSA THORNLEY, DEBORAH )
BENJAMIN-KOLLER, and JOSUE HERRERA, ) 11403328
individually and on behalf of all others similarly )
situated, )
) No. 2020 CH 04346
Plaintiffs, )
) JURY TRIAL DEMANDED
v. )
) Judge Raymond W. Mitchell
CDW-GOVERNMENT, LLC, and )
WYNNDALCO ENTERPRISES, LLC, )
)
Defendants )
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO
STRIKE OR DISREGARD CDW-G’S NEW EVIDENTIARY SUBMISSIONS
Plaintiffs submit this Reply Memorandum in support of their Motion to Strike or Disregard
CDW-G’s New Evidentiary Submissions (“Motion”).
Discussion
A. The McKone Declaration
In its Opposition (“Opp.”) to plaintiffs’ Motion, CDW-G contends that its belated
submission of the McKone Declaration is justified because, according to CDW-G, “Plaintiffs
claimed in their Response that there was no such document in existence.” Opp. at 3 (emphasis
added). CDW-G repeats this contention three times in its Opposition. See also id. (“[D]espite
having the Declaration in their possession all along, Plaintiffs claimed in their Response that there
was no such document in existence;” id. (“Regardless of why Plaintiffs decided to argue that the
Declaration did not exist ...”).
But plaintiffs never contended that an affidavit (or declaration) “did not exist,” and CDW-
G cites no portion of plaintiffs’ Response to support that disingenuous mischaracterization of
plaintiffs’ position. Rather, plaintiffs argued that CDW-G had failed to submit an affidavit to the
Court in support of its motion, as § 619(a)(9) expressly requires:
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
Nonetheless, Defendants have failed to submit the affidavits that are required to
support their motions to dismiss plaintiffs’ BIPA claim pursuant to §619(a)(9).
Plaintiffs’ Consolidated Response to CDW-Government, LLC’s and Wynndalco Enterprises,
LLC’s Section 2-619.1 Motions to Dismiss, filed October 30, 2020 (“Plaintiffs’ Resp.”) at 7.
Indeed, plaintiffs further argued that CDW-G’s failure to submit such an affidavit was “not
inadvertent,” id. at 11, but rather reflected CDW-G’s inability to respond to plaintiffs’ contention
that none “of the contract approvals and authorizations, necessary to authorize CDW-G to act on
behalf of the City, were complied with in connection with CDW- G’s sale of the Clearview
products to the [Chicago Police Department (‘CPD’)].” Id. at 12. As plaintiffs noted, submission
of an affidavit would have enabled CDW-G to submit the numerous contract authorizations,
approvals and consents required by the Contract. Id.
In its Opposition to plaintiffs’ Motion, CDW-G abandons any pretext that it submitted the
McKone Declaration to show the Court that it had provided the Declaration to plaintiffs’ counsel
before this action was filed. CDW-G Reply in Support of Motion to Dismiss, November 24, 2020,
at 4. n. 5. Now, CDW-G argues that the Declaration “confirms that CDW-G acted pursuant to its
Contract with [the City of Chicago (‘COC’)].” Opp. at 2. CDW-G also asserts that the McKone
Declaration “does not constitute ... evidence presented for the first time in a reply brief.” Id. It is
difficult to understand the good faith basis for that contention.
CDW-G cites three cases which, it contends, authorize submission of a belated affidavit
containing new and disputed evidence that is timely challenged by an opposing party. Opp. at 3.
But the cases provide no such authority. In United Equitable Ins. Co. v. Longmire, 2019 IL App
2
(1st) 181998, ¶ 55, the plaintiff submitted an affidavit with his reply brief in support of summary
judgment that asserted a fact (that plaintiff’s vehicle had been struck by the defendant’s vehicle)
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
that defendants admitted in their answer. Not surprisingly, there is no indication in the decision
that the defendants challenged the submission of the affidavit. In re Estate of Mosquero, 2013 IL
App (1st) 120130, ¶ 24, did not involve submission of a new affidavit (or new factual contentions),
but rather simply upheld submission of a corrected verification to a previously submitted affidavit.
The third case cited by CDW-G, Stone v. McCarthy, 206 Ill. App. 3d 893 (1st Dist. 1990),
is particularly telling. In Stone, the court denied the defendant’s challenges to a reply affidavit
(submitted in connection with a motion to enforce a settlement agreement) on waiver grounds,
holding that the defendant had failed to raise timely objections to the affidavit before the trial court
ruled. Id. at 900-01. As the Stone Court expressly stated,
McCarthy had an opportunity to object to the allegedly conclusory affidavit, before
the entry of judgment against him ... [but] did not object in any fashion to the
affidavit’s sufficiency until his motion to reconsider, which was filed ... well after
the entry of judgment. We conclude, then, that McCarthy waived his objection to
the sufficiency of Kralovec's affidavit. Like his argument that [the] affidavit was
conclusory, McCarthy did not argue that [the] affidavit was filed too late until his
motion to reconsider, which he filed after the entry of judgment. ... Like his
challenge to the sufficiency of [the] affidavit, ... we conclude that McCarthy waived
his objection to the timeliness of her affidavit by not raising it until his motion for
reconsideration.
Id. at 900-01. Here, plaintiffs have timely moved to strike the McKone Declaration on procedural
and substantive grounds, so there can be no issue of waiver.
But, most important, the McKone Declaration fails to meet the requirement of Supreme
Court Rule 191(a) that affidavits submitted in support of a § 619(a)(9) motion “shall set forth with
particularity the facts upon which the . . . defense is based [and] ... shall not consist of conclusions
3
but of facts admissible in evidence.” In its Opposition, CDW-G states, that “[i]t is hard to imagine
what other ‘facts’ McKone could provide.” Opp. at 4. But, in reality, no such difficulty exists.
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
McKone’s Declaration establishes that the Clearview Product was a non-catalog item.
McKone Dec. at ¶ 5. 1 As such, CDW-G’s Contract with the COC expressly prohibited the CPD
from ordering the product or CDW-G from honoring the order unless “the items ordered have been
pre-approved for such purchase by the Chief Information Officer [‘CIO’]” of the City’s
Department of Innovation and Technology, Contract, § 2.3A, and authorized for inclusion in
CDW-G’s catalog by the Commissioner of that Department. Contract, §2.3B.2. If CDW-G was,
in fact, acting pursuant to the Contract, McKone could have attached the CIO’s pre-approval of
the CPD’s purchase of the Clearview Database and the Commissioner’s authorization, or, at a
minimum, have referenced her personal knowledge of the existence of such approval and
authorization.
Moreover, whereas here, a product is not included in CDW-G’s catalog, the Contract
expressly provides that an order for the product requires (i) a written IT Order Request to CDW-
G from the CIO, and (ii) a “written consent” by CDW-G to undertake to provide Contract
“Services.” Contract, § 2.3B. Again, if these documents exist, McKone could have attached them
to her Declaration or, at a minimum, have referenced her personal knowledge of such documents.
Indeed, if – as plaintiffs believe is undisputed – CDW-G never issued the “written consent” to
1
McKone states that “the Clearview Database was a non-CDW-G catalogue item, meaning
that CDW-G had no relationship with the manufacturer, and had never sold the product before.”
Id. at ¶ 5. Plaintiffs had previously asserted that fact. See Plaintiffs’ Resp. at 10, n. 4.
2
Unlike the McKone Declaration, CDW-G attached the Contract to its Memorandum in
Support of its Motion to Dismiss as Group Exhibit 1.
4
provide Contract “Services” (a defined term in the Contract), it is difficult to understand how
CDW-G (or McKone) can legitimately claim CDW-G was “acting pursuant to the contract.”
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
And, pursuant to Exhibit 1 of the Contract, CDW-G is not permitted to provide software to
the City pursuant to the Contract unless it is a “licensor or authorized software distributor with
respect to the provision of software.” Contract, Exhibit 1 (“Scope of Work”). If CDW-G was
licensed or authorized to sell Clearview’s product, McKone could have attached the confirming
documentation or, at a minimum, have referenced her personal knowledge of it. Not only did
McKone fail to do so, but in her Declaration, she stated just the opposite, admitting that CDW-G
had “no relationship with the manufacturer.” McKone Dec. at ¶ 5; see also id. at ¶ 4 (“at no time
... did CDW-G (i) have any contact with Clearview [or] (ii) have any communication with
Clearview, either generally or with respect to the Database”).
Plaintiffs submit that it is precisely because of these patent inadequacies in the McKone
Declaration that CDW-G made a tactical decision not to submit it with its opening Memorandum
in support of its Combined Motion to Dismiss. And then, faced with plaintiffs’ citation to the
affidavit requirement of § 619(a)(9), CDW-G proffered the Declaration (under the guise of
showing that plaintiffs – not the Court – received it) in a transparent effort to cure their defective
motion.
Finally, as the Appellate Court made clear in Stone, plaintiffs have the right to contest the
disputed assertions in the McKone Declaration. Stone, 206 Ill. App. 3d at 899-900. As plaintiffs
argued in opposition to CDW-G’s Motion, CDW-G has impermissibly asserted its BIPA § 25(e)
defense (and now purports to rely on McKone’s disputed Declaration) in violation of the well-
established rule that a § 619(a)(9) motion will not lie where an asserted defense “requires the
5
resolution of an essential element of material fact….” Van Meter v. Darien Park Dist., 207 Ill. 2d
359, 377 (2003) (internal quotation marks omitted). See Plaintiffs’ Resp. at 7-8. Plaintiffs renew
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
their contention that the Court cannot resolve CDW-G’s § 25(e) defense on a § 619(a)(9) motion
and seek an opportunity to resolve the disputed issues raised by the defense (and the McKone
Declaration) before the merits of the defense are adjudicated.
B. The Seventh Circuit Brief
CDW-G insists that plaintiffs’ Seventh Circuit brief is germane to establish that plaintiffs
have taken inconsistent positions in this litigation and in their action against Clearview. Opp. at 4-
5. In support of this contention, CDW-G claims, without citation, that “[i]n their Response, ...
plaintiffs claimed ... that they were specifically injured when the CPD used the Database.” Opp. at
5. While plaintiffs explained, first in their Response and again in support of their Motion to Strike,
that Clearview’s software compares a subject facial scan to all of the facial scans in the Clearview
Database, see Plaintiff’s Resp. at 14; Motion at 6-7, the Court will look in vain for any assertion
in plaintiffs’ Response that use of the software by the CPD caused plaintiffs’ injury. Indeed,
plaintiffs’ Response expressly cited to the established BIPA law that a violation of the statute’s
protections, in and of itself, gives rise to an action for statutory damages, without proof of harm:
This conduct [selling biometric data for profit] violates BIPA and gives plaintiffs’
standing to pursue their BIPA claim. See Rosenbach [v. Six Flags Entertainment
Corp.], 2019 IL 123186, ¶33 (“[W]hen a private entity fails to comply with
[BIPA’s] requirements, that violation constitutes an invasion, impairment, or denial
of the statutory rights of any person … whose biometric identifier or biometric
information is subject to the breach. … No additional consequences need be
pleaded or proved.”). Indeed, “when a ‘private entity fails to adhere to statutory
procedures’…‘the precise harm the Illinois legislature sought to prevent is then
realized.’” McDonald [v. Symphony Bronzeville Park LLC], 2020 IL App (1st)
192398, ¶24, quoting Rosenbach, 2019 IL 123186, ¶34.
6
Plaintiffs’ Resp. at 14. Once again, CDW-G is misrepresenting the record to create issues to deflect
from the patent deficiencies in its § 619(a)(9) motion
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
Conclusion
For the foregoing reasons, plaintiffs’ Motion to Strike or Disregard CDW-G’s New
Evidentiary Submissions should be granted.
Respectfully submitted,
Melissa Thornley, Deborah Benjamin-Koller, and
Josue Herrera, individually and on behalf of all
others similarly situated
Dated: December 8, 2020 By: /s/ David S. Golub
One of Their Attorneys
Daniel M. Feeney Kevin M. Forde
Zachary J. Freeman Brian P. O’Meara
Miller Shakman Levine & Feldman LLP Kevin R. Malloy
180 North LaSalle Street, Suite 3600 Forde & O’Meara LLP
Chicago, IL 60601 111 West Washington St., Suite 1100
Tel. (312) 263-3700 Chicago IL 60602
Fac. (312) 263-3270 Tel. (312) 641-1441
Email: dfeeney@millershakman.com Fac. (312) 641-1288 (
zfreeman@millershakman.com Email: kforde@fordellp.com
bomeara@fordellp.com
kmalloy@fordellp.com
David S. Golub (pro hac vice)
Steven L. Bloch (pro hac vice)
Silver Golub & Teitell LLP
184 Atlantic Street
Stamford, CT 06901
Tel. (203) 325-4491
Fac. (203) 325-3769
Email: dgolub@sgtlaw.com
sbloch@sgtlaw.com
7
CERTIFICATE OF SERVICE
I, Zachary J. Freeman, an attorney, hereby certify that on December 8, 2020, I caused the
FILED DATE: 12/8/2020 10:11 AM 2020CH04346
foregoing Plaintiffs’ Reply Memorandum in Support of this Motion to Strike or Disregard
CDW- G’s New Evidentiary Submissions to be served by email and the Circuit Court’s e-filing
system on the following counsel of record:
Joseph A. Strubbe Richard S. Reizen
Brian W. Ledebuhr Gould & Ratner, LLP
Zachary J. Watters 222 N. Lasalle Street, Suite 300
Vedder Price P.C. Chicago, Illinois 60601
222 North LaSalle Street rreizen@gouldratner.com
Chicago, Illinois 60601
jstrubbe@vedderprice.com
bledebuhr@vedderprice.com
zwatters@vedderprice.com
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the
undersigned certifies that the statements set forth in this Certificate of Service are true and correct,
except as to matters therein stated to be on information and belief and as to such matters the
undersigned certifies as aforesaid that he verily believes the same to be true.
Dated: December 8, 2020 /s/Zachary J. Freeman
Zachary J. Freeman
8
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FILED 12/8/2020 10:11 AM IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ CIRCUIT CLERK COUNTY DEPARTMENT, CHANCERY DIVISION COOK COUNTY, IL FILED DATE: 12/8/2020 10:11 AM 2020CH04346 2020CH04346 MELISSA THORNLEY, DEBORAH ) BENJAMIN-KOLLER, and JOSUE HERRERA, ) 11403328 individually and on behalf of all others similarly ) situated, ) ) No. 2020 CH 04346 Plaintiffs, ) ) JURY TRIAL DEMANDED v. ) ) Judge Raymond W. Mitchell CDW-GOVERNMENT, LLC, and ) WYNNDALCO ENTERPRISES, LLC, ) ) Defendants ) PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO STRIKE OR DISREGARD CDW-G’S NEW EVIDENTIARY SUBMISSIONS Plaintiffs submit this Reply Memorandum in support of their Motion to Strike or Disregard CDW-G’s New Evidentiary Submissions (“Motion”). Discussion A. The McKone Declaration In its Opposition (“Opp.”) to plaintiffs’ Motion, CDW-G contends that its belated submission of the McKone Declaration is justified because, according to CDW-G, “Plaintiffs claimed in their Response that there was no such document in existence.” Opp. at 3 (emphasis added). CDW-G repeats this contention three times in its Opposition. See also id. (“[D]espite having the Declaration in their possession all along, Plaintiffs claimed in their Response that there was no such document in existence;” id. (“Regardless of why Plaintiffs decided to argue that the Declaration did not exist ...”). But plaintiffs never contended that an affidavit (or declaration) “did not exist,” and CDW- G cites no portion of plaintiffs’ Response to support that disingenuous mischaracterization of plaintiffs’ position. Rather, plaintiffs argued that CDW-G had failed to submit an affidavit to the Court in support of its motion, as § 619(a)(9) expressly requires: FILED DATE: 12/8/2020 10:11 AM 2020CH04346 Nonetheless, Defendants have failed to submit the affidavits that are required to support their motions to dismiss plaintiffs’ BIPA claim pursuant to §619(a)(9). Plaintiffs’ Consolidated Response to CDW-Government, LLC’s and Wynndalco Enterprises, LLC’s Section 2-619.1 Motions to Dismiss, filed October 30, 2020 (“Plaintiffs’ Resp.”) at 7. Indeed, plaintiffs further argued that CDW-G’s failure to submit such an affidavit was “not inadvertent,” id. at 11, but rather reflected CDW-G’s inability to respond to plaintiffs’ contention that none “of the contract approvals and authorizations, necessary to authorize CDW-G to act on behalf of the City, were complied with in connection with CDW- G’s sale of the Clearview products to the [Chicago Police Department (‘CPD’)].” Id. at 12. As plaintiffs noted, submission of an affidavit would have enabled CDW-G to submit the numerous contract authorizations, approvals and consents required by the Contract. Id. In its Opposition to plaintiffs’ Motion, CDW-G abandons any pretext that it submitted the McKone Declaration to show the Court that it had provided the Declaration to plaintiffs’ counsel before this action was filed. CDW-G Reply in Support of Motion to Dismiss, November 24, 2020, at 4. n. 5. Now, CDW-G argues that the Declaration “confirms that CDW-G acted pursuant to its Contract with [the City of Chicago (‘COC’)].” Opp. at 2. CDW-G also asserts that the McKone Declaration “does not constitute ... evidence presented for the first time in a reply brief.” Id. It is difficult to understand the good faith basis for that contention. CDW-G cites three cases which, it contends, authorize submission of a belated affidavit containing new and disputed evidence that is timely challenged by an opposing party. Opp. at 3. But the cases provide no such authority. In United Equitable Ins. Co. v. Longmire, 2019 IL App 2 (1st) 181998, ¶ 55, the plaintiff submitted an affidavit with his reply brief in support of summary judgment that asserted a fact (that plaintiff’s vehicle had been struck by the defendant’s vehicle) FILED DATE: 12/8/2020 10:11 AM 2020CH04346 that defendants admitted in their answer. Not surprisingly, there is no indication in the decision that the defendants challenged the submission of the affidavit. In re Estate of Mosquero, 2013 IL App (1st) 120130, ¶ 24, did not involve submission of a new affidavit (or new factual contentions), but rather simply upheld submission of a corrected verification to a previously submitted affidavit. The third case cited by CDW-G, Stone v. McCarthy, 206 Ill. App. 3d 893 (1st Dist. 1990), is particularly telling. In Stone, the court denied the defendant’s challenges to a reply affidavit (submitted in connection with a motion to enforce a settlement agreement) on waiver grounds, holding that the defendant had failed to raise timely objections to the affidavit before the trial court ruled. Id. at 900-01. As the Stone Court expressly stated, McCarthy had an opportunity to object to the allegedly conclusory affidavit, before the entry of judgment against him ... [but] did not object in any fashion to the affidavit’s sufficiency until his motion to reconsider, which was filed ... well after the entry of judgment. We conclude, then, that McCarthy waived his objection to the sufficiency of Kralovec's affidavit. Like his argument that [the] affidavit was conclusory, McCarthy did not argue that [the] affidavit was filed too late until his motion to reconsider, which he filed after the entry of judgment. ... Like his challenge to the sufficiency of [the] affidavit, ... we conclude that McCarthy waived his objection to the timeliness of her affidavit by not raising it until his motion for reconsideration. Id. at 900-01. Here, plaintiffs have timely moved to strike the McKone Declaration on procedural and substantive grounds, so there can be no issue of waiver. But, most important, the McKone Declaration fails to meet the requirement of Supreme Court Rule 191(a) that affidavits submitted in support of a § 619(a)(9) motion “shall set forth with particularity the facts upon which the . . . defense is based [and] ... shall not consist of conclusions 3 but of facts admissible in evidence.” In its Opposition, CDW-G states, that “[i]t is hard to imagine what other ‘facts’ McKone could provide.” Opp. at 4. But, in reality, no such difficulty exists. FILED DATE: 12/8/2020 10:11 AM 2020CH04346 McKone’s Declaration establishes that the Clearview Product was a non-catalog item. McKone Dec. at ¶ 5. 1 As such, CDW-G’s Contract with the COC expressly prohibited the CPD from ordering the product or CDW-G from honoring the order unless “the items ordered have been pre-approved for such purchase by the Chief Information Officer [‘CIO’]” of the City’s Department of Innovation and Technology, Contract, § 2.3A, and authorized for inclusion in CDW-G’s catalog by the Commissioner of that Department. Contract, §2.3B.2. If CDW-G was, in fact, acting pursuant to the Contract, McKone could have attached the CIO’s pre-approval of the CPD’s purchase of the Clearview Database and the Commissioner’s authorization, or, at a minimum, have referenced her personal knowledge of the existence of such approval and authorization. Moreover, whereas here, a product is not included in CDW-G’s catalog, the Contract expressly provides that an order for the product requires (i) a written IT Order Request to CDW- G from the CIO, and (ii) a “written consent” by CDW-G to undertake to provide Contract “Services.” Contract, § 2.3B. Again, if these documents exist, McKone could have attached them to her Declaration or, at a minimum, have referenced her personal knowledge of such documents. Indeed, if – as plaintiffs believe is undisputed – CDW-G never issued the “written consent” to 1 McKone states that “the Clearview Database was a non-CDW-G catalogue item, meaning that CDW-G had no relationship with the manufacturer, and had never sold the product before.” Id. at ¶ 5. Plaintiffs had previously asserted that fact. See Plaintiffs’ Resp. at 10, n. 4. 2 Unlike the McKone Declaration, CDW-G attached the Contract to its Memorandum in Support of its Motion to Dismiss as Group Exhibit 1. 4 provide Contract “Services” (a defined term in the Contract), it is difficult to understand how CDW-G (or McKone) can legitimately claim CDW-G was “acting pursuant to the contract.” FILED DATE: 12/8/2020 10:11 AM 2020CH04346 And, pursuant to Exhibit 1 of the Contract, CDW-G is not permitted to provide software to the City pursuant to the Contract unless it is a “licensor or authorized software distributor with respect to the provision of software.” Contract, Exhibit 1 (“Scope of Work”). If CDW-G was licensed or authorized to sell Clearview’s product, McKone could have attached the confirming documentation or, at a minimum, have referenced her personal knowledge of it. Not only did McKone fail to do so, but in her Declaration, she stated just the opposite, admitting that CDW-G had “no relationship with the manufacturer.” McKone Dec. at ¶ 5; see also id. at ¶ 4 (“at no time ... did CDW-G (i) have any contact with Clearview [or] (ii) have any communication with Clearview, either generally or with respect to the Database”). Plaintiffs submit that it is precisely because of these patent inadequacies in the McKone Declaration that CDW-G made a tactical decision not to submit it with its opening Memorandum in support of its Combined Motion to Dismiss. And then, faced with plaintiffs’ citation to the affidavit requirement of § 619(a)(9), CDW-G proffered the Declaration (under the guise of showing that plaintiffs – not the Court – received it) in a transparent effort to cure their defective motion. Finally, as the Appellate Court made clear in Stone, plaintiffs have the right to contest the disputed assertions in the McKone Declaration. Stone, 206 Ill. App. 3d at 899-900. As plaintiffs argued in opposition to CDW-G’s Motion, CDW-G has impermissibly asserted its BIPA § 25(e) defense (and now purports to rely on McKone’s disputed Declaration) in violation of the well- established rule that a § 619(a)(9) motion will not lie where an asserted defense “requires the 5 resolution of an essential element of material fact….” Van Meter v. Darien Park Dist., 207 Ill. 2d 359, 377 (2003) (internal quotation marks omitted). See Plaintiffs’ Resp. at 7-8. Plaintiffs renew FILED DATE: 12/8/2020 10:11 AM 2020CH04346 their contention that the Court cannot resolve CDW-G’s § 25(e) defense on a § 619(a)(9) motion and seek an opportunity to resolve the disputed issues raised by the defense (and the McKone Declaration) before the merits of the defense are adjudicated. B. The Seventh Circuit Brief CDW-G insists that plaintiffs’ Seventh Circuit brief is germane to establish that plaintiffs have taken inconsistent positions in this litigation and in their action against Clearview. Opp. at 4- 5. In support of this contention, CDW-G claims, without citation, that “[i]n their Response, ... plaintiffs claimed ... that they were specifically injured when the CPD used the Database.” Opp. at 5. While plaintiffs explained, first in their Response and again in support of their Motion to Strike, that Clearview’s software compares a subject facial scan to all of the facial scans in the Clearview Database, see Plaintiff’s Resp. at 14; Motion at 6-7, the Court will look in vain for any assertion in plaintiffs’ Response that use of the software by the CPD caused plaintiffs’ injury. Indeed, plaintiffs’ Response expressly cited to the established BIPA law that a violation of the statute’s protections, in and of itself, gives rise to an action for statutory damages, without proof of harm: This conduct [selling biometric data for profit] violates BIPA and gives plaintiffs’ standing to pursue their BIPA claim. See Rosenbach [v. Six Flags Entertainment Corp.], 2019 IL 123186, ¶33 (“[W]hen a private entity fails to comply with [BIPA’s] requirements, that violation constitutes an invasion, impairment, or denial of the statutory rights of any person … whose biometric identifier or biometric information is subject to the breach. … No additional consequences need be pleaded or proved.”). Indeed, “when a ‘private entity fails to adhere to statutory procedures’…‘the precise harm the Illinois legislature sought to prevent is then realized.’” McDonald [v. Symphony Bronzeville Park LLC], 2020 IL App (1st) 192398, ¶24, quoting Rosenbach, 2019 IL 123186, ¶34. 6 Plaintiffs’ Resp. at 14. Once again, CDW-G is misrepresenting the record to create issues to deflect from the patent deficiencies in its § 619(a)(9) motion FILED DATE: 12/8/2020 10:11 AM 2020CH04346 Conclusion For the foregoing reasons, plaintiffs’ Motion to Strike or Disregard CDW-G’s New Evidentiary Submissions should be granted. Respectfully submitted, Melissa Thornley, Deborah Benjamin-Koller, and Josue Herrera, individually and on behalf of all others similarly situated Dated: December 8, 2020 By: /s/ David S. Golub One of Their Attorneys Daniel M. Feeney Kevin M. Forde Zachary J. Freeman Brian P. O’Meara Miller Shakman Levine & Feldman LLP Kevin R. Malloy 180 North LaSalle Street, Suite 3600 Forde & O’Meara LLP Chicago, IL 60601 111 West Washington St., Suite 1100 Tel. (312) 263-3700 Chicago IL 60602 Fac. (312) 263-3270 Tel. (312) 641-1441 Email: dfeeney@millershakman.com Fac. (312) 641-1288 ( zfreeman@millershakman.com Email: kforde@fordellp.com bomeara@fordellp.com kmalloy@fordellp.com David S. Golub (pro hac vice) Steven L. Bloch (pro hac vice) Silver Golub & Teitell LLP 184 Atlantic Street Stamford, CT 06901 Tel. (203) 325-4491 Fac. (203) 325-3769 Email: dgolub@sgtlaw.com sbloch@sgtlaw.com 7 CERTIFICATE OF SERVICE I, Zachary J. Freeman, an attorney, hereby certify that on December 8, 2020, I caused the FILED DATE: 12/8/2020 10:11 AM 2020CH04346 foregoing Plaintiffs’ Reply Memorandum in Support of this Motion to Strike or Disregard CDW- G’s New Evidentiary Submissions to be served by email and the Circuit Court’s e-filing system on the following counsel of record: Joseph A. Strubbe Richard S. Reizen Brian W. Ledebuhr Gould & Ratner, LLP Zachary J. Watters 222 N. Lasalle Street, Suite 300 Vedder Price P.C. Chicago, Illinois 60601 222 North LaSalle Street rreizen@gouldratner.com Chicago, Illinois 60601 jstrubbe@vedderprice.com bledebuhr@vedderprice.com zwatters@vedderprice.com Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this Certificate of Service are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Dated: December 8, 2020 /s/Zachary J. Freeman Zachary J. Freeman 8