Gaertner v. Commemorative Brands, Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSHUA GAERTNER and CARSON
KOY, individually and on behalf of
all others similarly situated,
Plaintiffs,
v.
COMMEMORATIVE BRANDS, INC.,
et al.,
Defendants.
Case No. 23-CV-02452-SPM
MEMORANDUM AND ORDER
McGLYNN, District Judge:
This 	matter 	comes 	before 	the 	Court 	on 	Plaintiffs’ 	Motion 	for 	Class
Certification. (Doc. 91). Having been fully informed of the issues presented, Plaintiffs’
Motion is GRANTED.
R ELEVANT FACTUAL A ND P ROCEDURAL B ACKGROUND
This proposed class action arises under the Illinois Biometric Information
Privacy Act, 740 I LL . COMP . STAT . 14/1–99 (“BIPA”). BIPA regulates the collection,
use, 	safeguarding, 	handling, 	storage, 	retention, 	and 	destruction 	of 	biometric
identifiers and information. Id. § 14/5(g); see also Tims v. Black Horse Carriers, Inc.,
216 N.E.3d 845, 850 (Ill. 2023). BIPA defines biometric identifiers to include retina
or iris scans, fingerprints, voiceprints or scans of hand or facial geometry. Id. § 14/10.
BIPA 	applies 	to 	private 	entities, 	which 	include 	corporations 	and 	similar
organizations, but excludes state agencies, local government bodies, Illinois courts,
clerks of court, and judicial officers. Id.
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Section 15(b) of BIPA requires private entities that obtain biometric identifiers
or information to provide written notice of the collection, to explain the purpose and
retention period, and to secure a written release. Id. § 14/15(b); Fox v. Dakkota
Integrated Sys., LLC, 980 F.3d 1146, 1150 (7th Cir. 2020). Section 15(c) prohibits
private entities from selling, leasing, trading, or otherwise profiting from a person’s
biometric identifiers or information. BIPA § 14/15(c); see Mayhew v. Candid Color
Sys., Inc., 743 F. Supp. 3d 994 (S.D. Ill. 2024). BIPA provides a private right of action
and permits recovery of damages, reasonable attorneys’ fees and costs, and injunctive
relief. BIPA § 14/20.
GradImages photographs graduation ceremonies nationwide and sells the
images through its website, which can be searched by name, school, or graduation
year. (Docs. 91, 94). At each ceremony, GradImages captures a photograph of each
graduate as they cross the stage and also takes candid “public relations” or “PR”
photographs before and after the event. (Doc. 91, pp. 3–4). Because PR photographs
are taken spontaneously, GradImages is not always able to identify the graduates
depicted at the time they are taken. (Id.). Historically, these photographs were
uploaded to an online gallery that required graduates to browse through the entire
set of images from an event to locate their own. (Id.).
To 	streamline 	this 	process, 	GradImages 	began 	using 	facial 	recognition
technology to identify individuals who appear in PR photographs and to market those
photographs directly to them. (Id., p. 1). Plaintiffs submitted evidence taken from
GradImages’ website that describes the process as follows. (Id., pp. 1–6). First,
GradImages photographs graduates during commencement ceremonies and uploads
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the images to its servers. (Id., p. 4). It then sends those images to Microsoft, its facial
recognition vendor, whose Azure software analyzes each face and attempts to match
it to a name previously identified when the graduate walked across the stage. (Id.).
This matching process allows GradImages to link candid PR images with the correct
graduate’s identity. (Id.). Once the matches are made, the photos are returned to
GradImages and posted on its website for sale. (Id., p. 2). GradImages then invites
graduates to purchase the images linked to their names. (Id.). Defendants assert that
this process occurs outside the purview of GradImages. (Id., Exs. C; D; E, pp. 9–10;
H, pp. 5–7). They note that GradImages only ever possesses the photographs, be it
before or after the sorting process, and that GradImages “does not collect, capture,
obtain, possess, access, or sell biometrics.” (Doc. 94, p. 4).
Plaintiffs allege that this process was used on their images at their respective
graduation ceremonies. Plaintiff Josh Gaertner graduated from Southern Illinois
University Edwardsville and attended the commencement ceremony held in May of
2023 in Edwardsville, Illinois. (Doc 91, p. 5). Plaintiff Carson Koy graduated from
Loyola University Chicago and attended the school’s commencement ceremony held
in May of 2022 in Chicago, Illinois. (Id.). Plaintiffs contend that GradImages
photographed each of them at their ceremonies and transmitted those images for
facial recognition processing. (Id., Ex. A 103:24–105:2, 214:11–16, 215:10–216:6; Id.,
Ex. B 111:4–113:11, 115:1–11, 117:12–120:8). GradImages then posted the resulting
images 	for 	sale 	on 	its 	website 	and 	sent 	marketing 	communications 	soliciting
Plaintiffs to purchase the photographs. (Id., Ex. A 110:5–111:19, 185:20–188:19; Ex.
B 115:8–116:9). Plaintiffs allege that this conduct violated Section 15(b) of BIPA by
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collecting their biometric identifiers without the required written notices, and
without obtaining a written release. (Id., pp. 5–6). Plaintiffs further allege a violation
of Section 15(c) based on Defendants’ use of their biometrics to facilitate the sale of
photographs for profit. (Id., p. 6).
Plaintiffs filed this putative class action on July 14, 2023. (Doc. 1). On
November 11, 2024, Joshua Gaertner sought leave to file a First Amended Class
Action Complaint (Doc. 44), which the Court granted the following day (Doc. 45). Two
additional Plaintiffs, Wesley Janicki and Carson Koy, then joined the case, though
Janicki later voluntarily dismissed his claims on January 13, 2025. (Docs. 53, 54). On
November 21, 2024, Defendants filed a Motion to Dismiss under Rules 12(b)(1) and
12(b)(6), which this Court denied on March 27, 2025. (Docs. 47, 61). Plaintiffs
submitted their Motion for Class Certification and Memorandum in Support Thereof
on September 5, 2025. (Doc. 91). Defendants submitted their response on October 10,
2025, (Doc. 94), and Plaintiffs submitted their Reply brief on October 24, 2025, (Doc.
97).
A PPLICABLE LAW A ND LEGAL S TANDARDS
Under Rule 23(a), a class may be certified only if the proposed representatives
establish 	that: 	(1) 	the 	class 	is 	so 	numerous 	that 	joinder 	of 	all 	members 	is
impracticable; (2) there are questions of law or fact common to the class; (3) the
representatives’ claims are typical of those of the class; and (4) the representatives
will fairly and adequately protect the interests of the class. F ED. R. CIV. P. 23(a). If
these prerequisites are met, a class action may proceed under Rule 23(b)(3) if the
Court finds that questions of law or fact common to class members predominate over
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questions affecting only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication of the controversy. F ED.
R. CIV. P. 23(b)(3); see also Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804,
809 (2011).
In evaluating class certification, the Court must look beyond the pleadings and
may consider evidence on any disputed material issue. Beaton v. SpeedyPC Software,
907 F.3d 1018, 1025 (7th Cir. 2018) (citing Bell v. PNC Bank, Nat’l Ass’n, 800 F.3d
360, 377 (7th Cir. 2015); Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675–76 (7th
Cir. 2001)). Although “the merits are not on the table,” plaintiffs bear the burden of
proving by a preponderance of the evidence that each element of Rule 23 is satisfied.
Beaton, 907 F.3d at 1025 (citing Abbott v. Lockheed Martin Corp., 725 F.3d 803, 810
(7th Cir. 2013); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th
Cir. 2012); Steimel v. Wernert, 823 F.3d 902, 917 (7th Cir. 2016)). The decision
whether to certify a class lies within the court’s broad discretion. Jacks v. DirectSat
USA, LLC, 118 F.4th 888, 894 (7th Cir. 2024) (quoting Chavez v. Ill. State Police, 251
F.3d 612, 629 (7th Cir. 1997)). Rule 23 further requires that any certification order
appoint class counsel, define the class, and set out the claims, issues, or defenses to
be adjudicated. F ED. R. CIV. P. 23(c)(1)(B), (g).
A NALYSIS
As 	a 	threshold 	matter, 	the 	Court 	must 	assure 	itself 	of 	subject-matter
jurisdiction before addressing class certification. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998). This Court has subject matter jurisdiction over this
case pursuant to 28 U.S.C. § 1332(a) because there is complete diversity of citizenship
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between the parties and the matter in controversy exceeds $75,000. See 28 U.S.C. §
1332(a)(1); LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 547 (7th Cir. 2008).
Alternatively, jurisdiction may also be present under 28 U.S.C. § 1332(d)—the Class
Action Fairness Act—because the proposed class has 100 or more members, minimal
diversity of citizenship exists, and the amount in controversy exceeds $5,000,000 in
the aggregate. See 28 U.S.C. § 1332(d); Dart Cherokee Basin Operating Co., LLC v.
Owens, 574 U.S. 81, 84–85 (2014).
Turning now to the substance of the Motion for Class Certification, Plaintiffs
seek to certify the following class:
All individuals depicted in photos taken by GradImages in the
State of Illinois and submitted for facial recognition on or after
July 14, 2018.
(Doc. 91, p. 6). Excluded from the Class are
(1) any Judge or Magistrate presiding over this action and
members 	of 	their 	families; 	(2) 	Defendants, 	Defendants’
subsidiaries, and any entity in which the Defendants or their
parents have a controlling interest and its current or former
employees, officers and directors; (3) persons who timely request
exclusion from the Class; (4) persons whose claims have been
finally 	adjudicated 	on 	the 	merits 	or 	otherwise 	released; 	(5)
Plaintiffs’ counsel and Defendants’ counsel; and (6) the legal
representatives, successors, and assigns of any such excluded
persons.
(Id.).
Both sides acknowledge that the proposed class definition differs from the
definition set out in the First Amended Complaint. (Id., p. 6 n.25; Doc. 94, p. 3). The
original definition covered “[a]ll residents of the State of Illinois whose biometric
information or biometric identifiers were collected, captured, purchased, received
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through trade, or otherwise obtained by, or profited from by Defendants while
residing in Illinois.” (Doc. 46). This Court concludes that the revised definition is
permissible. See Chapman v. First Index, Inc., 796 F.3d 783, 785 (7th Cir. 2015)
(noting that Rule 23(c)(1)(B) places the responsibility for defining the class on the
Court, and that certification does not require amending the complaint); Messner, 669
F.3d at 825 (observing that class definitions “can and often should be refined” to
address potential issues).
I. 	Class Ascertainability
For a class to be certified, a plaintiff must show that the class is “indeed
identifiable as a class.” Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006).
This means that a class definition cannot be so vague as to be insufficiently definite.
See Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977).
GradImages contends that the revised class definition renders the proposed class
overbroad and therefore uncertifiable. (See Doc. 94, p. 22 (citing Kohen v. Pac. Inv.
Mgmt. Co., LLC, 571 F.3d 672, 678 (7th Cir. 2009) (explaining that a class is not
ascertainable if its definition includes individuals who could not have been injured by
the defendant’s conduct)). In support of their position, GradImages advances three
arguments. First, it asserts that BIPA does not apply to non-Illinois residents and
may not be applied extraterritorially. (Doc. 94, pp. 22–23). Second, it argues that
because the proposed class definition omits elements required to establish a BIPA
violation, the class may include individuals whose claims fall outside the statute’s
scope. (Id., p. 23). Third, GradImages maintains that the class lacks ascertainability
because determining class membership would require individualized findings as to
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each person’s Illinois residency, a process it claims would be unduly burdensome. (Id.,
pp. 23–24).
a. 	Extraterritoriality
The Court first addresses Defendants’ argument that BIPA cannot be applied
extraterritorially. Defendants contend that, because BIPA does not reach non-Illinois
residents, Plaintiffs’ amended class definition is overbroad. (Id., pp. 22–23). This
Court disagrees.
While Illinois has a general presumption against extraterritoriality, the
Illinois Supreme Court has noted that statutes can be applied extraterritorially if
clear 	intent 	“appears 	from 	the 	express 	provisions 	of 	the 	statute” 	or 	if 	the
circumstances 	that 	gave 	rise 	to 	the 	cause 	of 	action 	occurred 	“primarily 	and
substantially” within Illinois. See Avery v. State Farm Mut. Autom. Ins. Co., 835
N.E.2d 801, 852–54 (Ill. 2005); see also William S. Dodge, Presumptions Against
Extraterritoriality in State Law, 53 UC D AVIS L. REV . 1389, 1404 (2020). On its face,
BIPA is not such a statute whose provisions indicate an extraterritorial effect. See
Ronquillo v. Doctor’s Assocs., LLC, 597 F. Supp. 3d, 1227, 1233 (N.D. Ill. 2022) (citing
Monroy v. Shutterfly, Inc., No. 16 C 10984, 2017 WL 4099846, at *5 (N.D. Ill. Sept.
15, 2017)). However, the circumstances of this case primarily and substantially
occurred within the state of Illinois.
The 	question 	of 	whether 	the 	alleged violations 	of 	BIPA 	“primarily 	and
substantially” occurred in Illinois is a factual determination. See Avery, 835 N.E.2d
at 854. The Illinois Supreme Court stated that these circumstances include factors
such as a plaintiff’s residency, the location of the harm, where the parties sent and
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received communications, and where the defendant carried out any policy at issue.
See id. at 853–54. Federal courts have dealt specifically with this question under
BIPA claims and have arrived at different results. In Sloan v. Anker Innovations Ltd.,
consumers brought a class action against companies that produced home security
cameras 	and 	video 	doorbells, 	alleging 	misrepresentations 	about 	storage 	and
encryption of data captured by the devices. 711 F. Supp. 3d 946 (N.D. Ill. 2024).
Regarding the applicability of the cause of action to non-Illinois plaintiffs, the
Northern District of Illinois found that because the data had been collected from
devices in plaintiffs’ homes which existed outside of Illinois, that plaintiffs all
experienced their alleged harm outside the state of Illinois, and that BIPA did not
apply in those circumstances. Id. at 958. Conversely, in Wilk v. Brainshark, an
employee brought a putative class action claiming BIPA violations where a company
used facial-mapping technology on videos submitted at the employer’s request to
identify emotions and performance indicators. 631 F. Supp. 3d 522 (N.D. Ill. 2022).
There, even though the precise location of the scanning was unclear, the Northern
District of Illinois found the conduct sufficiently Illinois-centered because the videos
were taken and uploaded in Illinois by residents of Illinois for an Illinois employer.
Id. at 527–28.
Considering the record here, the Court concludes that the relevant conduct
occurred primarily and substantially in Illinois. The photographs were taken in
Illinois, at Illinois universities, and were presumably uploaded in Illinois. (Doc. 91,
p. 5; Doc. 97, p. 10). Further, BIPA’s requirement for a written release to collect and
use biometric data would have been violated in Illinois. The only factor that arguably
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favors GradImages is the location of the facial-geometry scanning. The record reflects
that the photographs were uploaded to a server located in Florida, transmitted to
Microsoft for processing, and then sent back to the Florida server. (Doc. 91, Ex. C, pp.
9–10). Thus, the scanning either occurred online—without a meaningful physical
location—or it occurred outside of Illinois. The Court will consider both possibilities.
Determining the “location” of online conduct is inherently difficult. As noted in
Rivera v. Google, Inc., the cases setting out the “primary and substantially” limits
have not provided much guidance for online conduct. 238 F. Supp. 3d 1088, 1101 (N.D.
Ill. 2017). In Specht v. Google, Inc., the court held that an infringement that “took
place on the internet and was international in scope,” in combination with other
Illinois-centric factors, was enough to establish extraterritoriality under the Avery
test. 660 F. Supp. 2d 858, 866 (N.D. Ill. 2009). By contrast, extraterritoriality was not
established in Shaw v. Hyatt International Corp., where a London-based plaintiff
accessed a hotel’s website to book a room in Moscow and later brought an Illinois
Consumer Fraud Act claim in Illinois. No. 05 C 5022, 2005 WL 3088438, at *2–3 (N.D.
Ill. Nov. 15, 2005), aff’d, 461 F.3d 899 (7th Cir. 2006). There, the court concluded that
the defendant’s Illinois principal place of business and the website’s Illinois choice-
of-law provision were too attenuated to show that the relevant transaction occurred
“primarily and substantially” in Illinois. Id. These cases suggest that when online
conduct is paired with Illinois-centered circumstances, extraterritoriality may be
satisfied; conversely, when the Illinois connection is minimal, it is not.
Alternatively, even if the scanning were shown to have occurred at a physical
location outside Illinois, that fact alone is not dispositive. As the Illinois Supreme
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Court cautioned, “the place of injury or deception is only one of the circumstances
that make up a fraudulent transaction and focusing solely on that fact can create
questionable results.” Avery, 835 N.E.2d at 853. Other courts have similarly rejected
a server-location centric approach. See e.g., In re Facebook Biometric Info. Priv. Litig.,
326 F.R.D. 535, 548 (N.D. Cal. 2018), aff’d, 932 F.3d 1264 (“Making the geographic
coordinates of a server the most important circumstance in fixing the location of an
internet company’s conduct . . . would effectively gut the ability of states without
server sites to apply their consumer protection laws to residents for online activity
that occurred substantially within their borders.”). Therefore, although in this case
some 	of 	the 	conduct 	may 	have 	occurred 	outside 	Illinois, 	the 	totality 	of 	the
circumstances still points to Illinois as the primary locus of the conduct.1
In evaluating class certification, the Court must look beyond the pleadings and
may consider evidence on any disputed material issue. Beaton, 907 F.3d at 1025
(citing PNC Bank, 800 F.3d at 377; Szabo, 249 F.3d at 675–76). Courts also retain
broad discretion at the class certification stage. Jacks, 118 F.4th at 894 (quoting
Chavez, 251 F.3d at 629). Here, a preponderance of the evidence on the record shows
that the conduct giving rise to Plaintiffs’ claims occurred primarily and substantially
in Illinois. The Court therefore finds the class is not overbroad on extraterritoriality
grounds at this stage.
As other courts have recognized, extraterritoriality is often addressed at the
motion to dismiss stage, with the understanding that additional discovery may refine
1 Courts have taken the totality of the circumstances approach when analyzing extraterritoriality at
the pleading stage and beyond. See Rivera, 238 F. Supp. 3d 1088; Monroy, 2017 WL 4099846.
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the analysis at the summary judgment stage. Wilk, 631 F. Supp. 3d at 528 (citing
Rivera, 238 F. Supp. 3d at 1102). Because this case is at the class-certification stage—
further along than a motion to dismiss but short of summary judgment—the parties
will have the opportunity to develop additional facts during merits discovery.
GradImages may renew its extraterritoriality argument if warranted.
b. 	Elements of BIPA
Defendants next argue that the proposed class definition is improper because
it does not include the statutory elements of a BIPA violation. (Doc. 94, p. 23). This
argument is unavailing.
Rule 23 does not require that a class definition replicates the elements of the
underlying cause of action and courts routinely certify classes defined by objective
criteria rather than by ultimate liability. As Plaintiffs note, including the elements
of liability in the definition risks creating a “fail-safe” class, one in which membership
turns on proving the defendant’s wrongdoing, which is improper. (See Doc. 97, p. 11
(citing Messner, 669 F.3d at 825)); see also Mullins v. Direct Digital, LLC, 795 F.3d
654, 660–61 (7th Cir. 2015).
BIPA 	classes 	are 	frequently 	certified 	without 	embedding 	Section 	15’s
requirements into the class definition. See Howe v. Speedway LLC, No. 1:19-CV-
01374, 2024 WL 4346631, at *15 (N.D. Ill. Sept. 29, 2024); Svoboda v. Amazon, No.
21 C 5336, 2024 WL 1363718, at *4 (N.D. Ill. Mar. 30, 2024); Tapia-Rendon v. United
Tape & Finishing Co., No. 21 C 3400, 2023 WL 5228178, at *5 (N.D. Ill. Aug. 15,
2023). The absence of statutory elements in the class definition does not broaden
BIPA’s reach or lessen Plaintiffs’ burden of proof; it simply avoids defining class
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membership by the merits. Whether GradImages “collected” or “otherwise obtained”
biometric identifiers, complied with Section 15(b), or “profited from” biometrics under
Section 15(c) are issues reserved for the liability phase. Accordingly, the Court rejects
Defendants’ argument. The omission of BIPA’s elements does not render the class
definition impermissibly broad.
c. 	Class Identification
Finally, GradImages argues that the class definition is improper because it is
not sufficiently ascertainable—by which they assert that class membership must be
determinable through precise, objective criteria. (See Doc. 94, pp. 23–24 (citing
Jamison v. First Credit Servs., Inc., 290 F.R.D. 92, 108 (N.D. Ill. 2023)). The Seventh
Circuit requires only that a proposed class must be “indeed identifiable as a class.”
Oshana, 472 F.3d at 513. GradImages contends that a residency requirement would
necessitate individualized inquiries and would therefore be too burdensome to satisfy
this standard. (See Doc. 94, pp. 23–24). As explained in the Court’s analysis on
extraterritoriality, residency is not a part of the class definition and is not at issue.
Even 	if 	residency 	were 	relevant, 	GradImages’ 	argument 	misstates 	the
governing standard. The cases they cite involve situations where identifying class
members was much more burdensome than determining residency. (Doc. 94, p. 23).
In one case cited by GradImages, Franks v. MKM Oil, Inc., the court found
ascertainability was lacking because class membership depended on identifying
employees who had made undocumented cash payments to managers, based on
receipts that were either unavailable or failed to identify the affected employees. No.
10-00013, 2012 WL 3903782, at *7 (N.D. Ill. Sept. 7, 2012); (see Doc. 94, p. 23 (citing
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the 	same)). 	That 	situation 	bears 	little 	resemblance 	to 	determining 	where 	an
individual resides. Another case cited by GradImages, Pastor v. State Farm Mutual
Automobile 	Insurance 	Co. 	likewise 	involved 	substantial 	practical 	obstacles 	to
identifying class members. No. 05-1459, 2005 WL 2453900 (N.D. Ill. Sept. 30, 2005),
aff’d, 487 F.3d 1042 (7th Cir. 2017); (see Doc. 94, p. 23 (citing the same)). The court
there would have had to conduct an individualized inquiry into whether each class
member’s car was “usable” under the insurance contract—an inquiry not objectively
determinable from State Farm’s records. Pastor, 2005 WL 2453900.
By contrast, residency can be determined in a straightforward manner,
including through self-reporting. See Facebook, 326 F.R.D. at 548; see also Herkert v.
MRC Receivables Corp., 254 F.R.D. 344, 348 (citing Lau v. Arrow Fin. Servs., LLC,
245 F.R.D. 620, 624 (N.D. Ill. 2007)) (“it is not fatal for a class definition to require
some inquiry into individual records, as long as the inquiry is not ‘so daunting as to
make the class definition insufficient.’”). Accordingly, the class definition relies on
objective criteria and is identifiable. It is therefore not overbroad.
II. 	Rule 23(a) Requirements
Having established that the class is ascertainable, the Court now turns to its
statutory Rule 23 requirements. Under Rule 23(a), the proposed class must meet the
requirements 	of 	numerosity, 	commonality, 	typicality, 	and 	adequacy 	of
representation. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011); Messner,
669 F.3d at 811.
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a. 	Numerosity
Rule 23(a)(1) requires an assessment of whether the proposed class is of such
size 	and 	composition 	that 	individualized 	joinder 	of 	all 	members 	would 	be
impracticable. F ED. R. CIV. P. 23(a)(1). The Seventh Circuit has recognized that “a
forty-member 	class 	is 	often 	regarded 	as 	sufficient 	to 	meet 	the 	numerosity
requirement,” Orr v. Shicker, 953 F.3d 490, 498 (7th Cir. 2020) (quoting Mulvania v.
Sheriff of Rock Island County, 850 F.3d 849, 859 (7th Cir. 2017), but, a class of forty
or more does not guarantee numerosity, see Pruitt v. City of Chicago 472, F.3d 925,
926 (7th Cir. 2006). Rule 23(a)(1) requires a showing that joinder of all class members
would be impracticable, not merely less convenient. F ED. R. CIV. P. 23(a)(1). The
inquiry focuses on the practical obstacles of joining all affected individuals rather
than on the sheer number of potential class members. See Arenson v. Whitehall
Convalescent & Nursing Home, Inc., 164 F.R.D. 659, 663 (N.D. Ill. 1996). In assessing
whether joinder is impracticable, courts consider the nature of the action, the size of
the individual claims, and the geographic dispersion of potential class members. See
Anderson v. Weinert Enters., Inc., 986 F.3d 773, 777 (7th Cir. 2021).
Here, the numerosity requirement is plainly satisfied. GradImages’ own
records show that during the Class Period, photographers captured images at more
than 500 events involving approximately 190,000 graduates. (Doc. 91, p. 8 (citing id.,
Ex. J, ¶ 10(a)). Given the large number of affected individuals, the geographic spread
of graduation events, and the modest, individualized value of each claim, it would be
exceedingly difficult to individually locate, contact, and litigate the rights of every
affected graduate through joinder. See Pietrzycki v. Heights Tower Serv., Inc., 197 F.
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Supp. 3d 1007, 1018 (N.D. Ill. 2016) (certifying class of 90 members); Mussat v. Global
Healthcare Res., LLC, No. 11 C 7035, 2013 WL 1087551, at *4 (N.D. Ill. March 13,
2013) (certifying class of 87 members). These practical barriers to assembling all class
members satisfy Rule 23(a)(1)’s numerosity requirement.
b. 	Commonality
Rule 23(a)(2) requires the existence of “questions of law or fact common to the
class.” F ED. R. CIV. P. 23(a)(2). “One common question is enough, but not just any
question will do.” Howard v. Cook Cnty. Sheriff’s Office, 989 F.3d 587, 598 (7th Cir.
2021). Commonality is satisfied when the class’s claims depend on a common
contention that is capable of class-wide resolution; that is, determining its truth or
falsity will resolve an issue central to each class member’s claim “in one stroke.” Wal-
Mart, 564 U.S. at 349–50; Howard, 989 F.3d at 598. Thus, when the same conduct or
uniform policy by the same defendant gives rise to the same type of injury or legal
claim for all class members, commonality is met. See Suchanek v. Sturm Foods, Inc.,
764 F.3d 750, 756 (7th Cir. 2014); Ross v. Gossett, 33 F.4th 433, 438 (7th Cir. 2022);
Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010). Conversely, when a
defendant’s injurious conduct differs from plaintiff to plaintiff, common answers are
unlikely. See Suchanek, 764 F.3d at 756; Wal-Mart, 564 U.S. at 356–57.
Courts 	have 	routinely 	found 	commonality 	in 	BIPA 	class 	actions. 	See
Gunderson v. Amazon, Inc., No. 19-CV-05061, 2025 WL 3228934, at *3 (N.D. Ill. Nov.
19, 2025) (finding commonality satisfied where Amazon “sold, leased, traded, or
otherwise profited from Plaintiff’s biometric data”); Howe, 2024 WL 4346631, at *15
(finding commonality where the common question was, among others, whether
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Speedway’s timeclocks “collected, captured, or otherwise obtained . . . protected
biometrics under BIPA section 15(b)”); Rogers v. BNSF Ry. Co., No. 19 C 3083, 2022
WL 854348, at *2 (N.D. Ill. Mar. 22, 2022) (finding commonality where BNSF
collected biometric data in a standardized manner upon a driver’s visit to a BNSF
facility). In particular, Svoboda saw commonality satisfied in a case where the
unlawful conduct alleged was Amazon’s scanning of facial geometry. 2024 WL
1363718, at *8. In that case, the Court recognized that the common questions to
defendants included whether: (1) the data collected was biometric information under
BIPA; (2) this constituted collection or possession of biometric data under BIPA; (3)
whether this was disclosed to users of Amazon; (4) whether Amazon obtained written
releases; (5) whether Amazon developed a publicly available written policy governing
their use of biometric data; and (6) whether Amazon’s use of biometric data was
negligent intentional or reckless. Id. All these common questions were determined in
reference to the BIPA statute. Id. (citing BIPA § 14/10).
The Court finds these authorities persuasive. As in Svoboda and other BIPA
class actions, common questions of law and fact arise from GradImages’ uniform
conduct toward all putative class members. Plaintiffs identify several such questions,
including: (1) whether GradImages obtained biometric identifiers or information
through its facial-recognition process; (2) if so, whether GradImages complied with
Section 15(b)’s notice and consent requirements; and (3) whether GradImages
“profited from” Plaintiffs’ and putative class members’ biometrics in violation of BIPA
§ 14/15(c). (Doc. 91, p. 10). The record reflects that GradImages follows a standardized
process by which it photographed students and, allegedly, used their biometric data
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to facilitate marketing of those photographs. (Doc 59, Ex. A, pp. 12–15). This uniform
process parallels the conduct found in Svoboda, involving Amazon’s collection of
biometric data, and in Rogers v. BNSF, involving BNSF’s routine biometric collection
from drivers entering its facility. GradImages’ conduct gives rise to common legal
questions under BIPA, the resolution of which will determine issues central to each
class 	member’s 	claims. 	See 	Wal-Mart, 	564 	U.S. 	at 	349–50. 	Therefore, 	the
commonality requirement is satisfied.
GradImages 	argues 	that 	commonality 	is 	not 	satisfied 	because 	certain
individualized inquiries may arise. (Doc. 94, pp. 24–28). They point to potential
differences regarding whether a given graduation ceremony was public or private,
whether each individual viewed GradImages’ terms of use, and how damages should
be calculated. However, these arguments are misplaced. (Id.). Such individualized
issues are properly addressed under the predominance analysis of Rule 23(b)(3). The
relevant question for commonality is whether the defendant’s standardized conduct
creates common questions of law or fact, not whether every aspect of the case is
uniform. See Rogers, 2022 WL 854348, at *2. Rule 23(a)(2) asks whether plaintiffs
have “suffered the same injury” and can assert claims that “depend upon a common
contention.” Wal-Mart, 564 U.S. at 338 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 152 (1982)). Here, the common contention is whether GradImages violated
specific 	provisions 	of 	BIPA. 	Accordingly, 	the 	Court 	finds 	that 	Rule 	23(a)(2)’s
commonality 	requirement 	is 	satisfied. 	The 	Court 	will 	consider 	GradImages’
individualized-inquiry arguments under Rule 23(b)(3).
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c. 	Typicality
Rule 23(a)(3) requires that the class representatives’ claims rest on the same
legal theory and arise from the same event, practice, or course of conduct as the claims
of the other class members. See Howard, 989 F.3d at 605 (quoting Keele v. Wexler,
149 F.3d 589, 595 (7th Cir. 1998); Oshana, 472 F.3d at 514 (quoting Rosario v.
Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). The typicality requirement serves to
ensure that the named plaintiffs’ claims have the same essential characteristics as
those of the class, thereby creating sufficient alignment between the representatives
and absent class members. See Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018).
This alignment provides the assurance that, in pursuing their own claims, the
representatives will also advance the interests of the class. See Howard, 989 F.3d at
605 (citing 1 N EWBERG & RUBENSTEIN, CLASS ACTIONS § 3:18 (5th ed. 2012)).
Although closely related to commonality, typicality is a distinct requirement
that focuses on the attributes of the class representatives rather than the shared
characteristics of the class as a whole. Id.; see also Wal-Mart, 564 U.S. at 349 n.5.
Factual 	differences 	among 	class 	members, 	such 	as 	variations 	in 	the 	precise
circumstances of their injuries, do not defeat typicality so long as their claims share
the same essential nature and arise from the defendant’s uniform conduct. See
Oshana, 472 F.3d at 514; Beaton, 907 F.3d at 1026. Ultimately, typicality is satisfied
when the representative’s pursuit of their own claims is likely to vindicate the claims
of the class as a whole, thereby making class treatment both fair and efficient.
Similar to the commonality requirement, typicality is frequently established
in BIPA class actions. See In re Tiktok, Inc., Consumer Priv. Litig., 617 F. Supp. 3d
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904, 922 (N.D. Ill. 2022); Facebook, 326 F.R.D. at 543–44; Rogers, 2022 WL 854348,
at *2. Here again, Svoboda provides a good example. There, typicality was satisfied
where the plaintiff sought to certify a class of people who had used the same software
to capture their facial geometry. 2024 WL 1363718, at *2–3, *7–8. The plaintiff’s
claims were representative of the class because they arose from the same biometric-
collection process. See id. at *7–8.
Gaertner and Koy seek to certify a class of individuals whose claims arise from
the alleged capture and use of biometric data for profit in violation of BIPA. (See Doc.
91). Nothing in the record suggests that their claims are atypical or meaningfully
different from those of the putative class. Further, although a class representative
may be atypical or inadequate if subject to a substantial defense unique to that
individual, the factual issues GradImages raises under Rule 23(a)(2)—such as
whether a graduation ceremony was public or private or whether a particular
individual viewed GradImages’ terms of use—do not alter this analysis. Gunderson,
2025 WL 3228934, at *5 (citing Westmoreland v. Hughes, 144 F.4th 952, 955–56 (7th
Cir. 2025)). The Seventh Circuit has explained that typicality may be defeated only
where an affirmative defense applies uniquely to the named plaintiffs or to a small
subset of the proposed class. J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d
994, 999 (7th Cir. 1980). Here, the potential factual distinctions identified by
Defendants do not present defenses unique to Gaertner or Koy, nor do they apply to
only a small portion of class members.
Gaertner and Koy each had their photographs taken at a graduation ceremony
and allegedly had those photographs scanned for facial geometry in violation of BIPA.
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(Doc 91, p. 2). This is the same conduct underlying the claims of all putative class
members. Their pursuit of this litigation will therefore materially advance the
interests of the class. Moreover, Defendants do not meaningfully contest typicality in
their briefing. The Court is satisfied that Gaertner and Koy’s claims are typical of the
proposed class and finds that Rule 23(a)(3) is satisfied.
d. 	Adequacy of Representation
Rule 23(a)(4) requires that the named plaintiffs “will fairly and adequately
protect the interests of the class.” F ED. R. CIV. P. 23(a)(4). The adequacy inquiry has
two components. First, the Court evaluates “the adequacy of the named plaintiffs as
representatives of the proposed class’s myriad members, with their differing and
separate interests.” Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir.
2011). Second, the Court assesses “the adequacy of the proposed class counsel.” Id.
Class counsel must be “competent, experienced, qualified, and generally able to
conduct the proposed litigation vigorously.” Arenson, 164 F.R.D. at 664 (citing
Kriendler v. Chem. Waste Mgmt., Inc., 877 F. Supp. 1140, 1159 (N.D. Ill. 1995)); see
also Urlaub v. CITGO Petrol. Corp., 348 F.R.D. 319, 326 (N.D. Ill. 2024) (citing
Wachala v. Astellas US LLC, No. 20 C 3882, 2022 WL 408108, at *5 (N.D. Ill. Feb.
10, 2022)); Gomez, 649 F.3d at 592 (citing Greisz v. Household Bank (Ill.), N.A., 176
F.3d 1012, 1013 (7th Cir. 1999)).
i. 	Adequacy of Class Representatives
Plaintiffs argue that Gaertner and Koy are adequate class representatives
because they share the same interests and alleged injury as the putative class and
possess a sufficient stake in the litigation to ensure vigorous advocacy. (Doc. 91, p.
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12). 	Defendants 	assert 	that 	Gaertner 	and 	Koy 	lack 	the 	necessary 	judgment,
credibility, and veracity to serve as class representatives, and that their involvement
so far has been merely nominal. (Doc. 94, pp. 14–18). The Court agrees with Plaintiffs.
A plaintiff is adequate so long as their claims neither conflict with nor are
antagonistic to those of other class members. Howard, 989 F.3d at 609–10. The
purpose of this inquiry is to identify any conflicts between the named representatives
and the putative class, as well as conflicts within the class itself. Id.; see also Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). Courts also consider whether the
named plaintiffs have sufficient interest in the outcome to ensure vigorous advocacy.
Urlaub, 348 F.R.D. at 326; see also Wachala, 2022 WL 408108, at *5. “A named
plaintiff who has serious credibility problems or who is likely to devote too much
attention 	to 	rebutting 	an 	individual 	defense 	may 	not 	be 	an 	adequate 	class
representative.” Stampley v. Altom Transp., Inc., 958 F.3d 580, 585 (7th Cir. 2020)
(citing CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir.
2011)).
As discussed above, the named Plaintiffs were subject to the same challenged
conduct and purported injury as the class they seek to represent. Although certain
individualized issues may arise later in the litigation, they do not bear on adequacy
because they create no conflict of interest. Differences such as attending different
universities or viewing different terms of use do not create any conflict among them
or with the named Plaintiffs. Accordingly, this Court finds no conflict of interest.
Moreover, even if minor intraclass tensions were to arise, the Seventh Circuit has
emphasized that the mere possibility of such “trivial” conflicts does not defeat
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certification; if actual conflicts materialize, the Court may create subclasses. Howard,
989 F.3d at 609–10 (quoting Abbott, 725 F.3d at 813).
In addition, the record supports the finding that Gaertner and Koy will
vigorously represent the class. Both demonstrated in their depositions that they
understood 	the 	nature 	of 	the 	litigation 	and 	their 	responsibilities 	as 	class
representatives. (Doc. 91, Ex. A. 42:13–18, 137:19–138:1, 150:16–21, 122:16–123:3;
id., Ex. B 31:19–32:9, 141:11–17, 159:2–10, 16:5–8, 16:20–17:7). This evidence
confirms that they possess sufficient interest in the outcome and will adequately
protect the interests of the class.
GradImages challenges the adequacy of Gaertner and Koy on two grounds.
First, 	it 	contends 	that 	both 	representatives 	lack 	judgment, 	credibility, 	and
truthfulness. (Doc. 94, p. 14). Second, it asserts that they have not meaningfully
participated in the litigation and lack even a basic understanding of the case, their
responsibilities as class representatives, or the identity of their own counsel. (Id.).
The Court addresses the latter argument first.
GradImages identifies several portions of Gaertner and Koy’s deposition
testimony that, in their view, reflect an inadequate familiarity with the case, their
responsibilities as class representatives, or their relationship with counsel. They
highlight, among other things, that: (1) Plaintiffs do not know the procedural status
of the case or whether a class has been certified; (2) they do not know the identity of
the current or former parties to the lawsuit; (3) they do not know whether they
reviewed or approved the First Amended Complaint before its filing; and (4) they are
unaware whether they owe fiduciary duties to class members. (Id., pp. 16–18).
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These concerns exceed what Rule 23(a)(4) requires. In the Seventh Circuit, the
role of the class representative is nominal as class counsel manages the litigation. See
Philips v. Asset Acceptance LLC., 736 F.3d 1076, 1080 (2013). Courts routinely hold
that adequacy requires the representative only have a basic understanding of the
case, Randle v. GC Servs., L.P., 181 F.R.D. 602, 604 (N.D. Ill. 1998), and that
understanding the minutiae of a case is not required, see Murray v. New Cingular
Wireless Servs., Inc., 232 F.R.D. 295, 300 (N.D. Ill. 2005) (citing Culver v. City of
Milwaukee, 277 F.3d 908, 913 (7th Cir. 2002). Indeed, courts have found adequacy in
cases involving far more limited knowledge than is alleged here. See Paper Sys. Inc.
v. 	Mitsubishi 	Corp., 	193 	F.R.D. 	601, 	608–10 	(E.D. 	Wis. 	2000) 	(representative
adequate despite lacking personal knowledge of many assertions in the complaint);
Hayes v. Convergent Healthcare Recoveries, Inc., 2016 WL 5867818, at *8 (C.D. Ill.
2016) (representatives adequate despite being unable to recall reviewing pleadings
or affidavits.). GradImages relies on Seiden v. Nicholson to support their assertion
that a proposed representative that lacks substantial familiarity with the facts of the
case will be found inadequate. (Doc. 94, p. 17) (citing 69 F.R.D. 681, 688 (2007)). But
in that case, representatives had never seen a copy of the original complaint and
“lacked personal knowledge of the factual basis for many of the plaintiffs’ allegations.”
Seiden, 69 F.R.D. at 688.
The record here reflects that Gaertner and Koy are sufficiently familiar with
the case. Gaertner testified that he understands what BIPA is, how his rights were
allegedly violated, and his general role as class representative. (Doc. 91, Ex. A, pp.
42, 122, 137, 150). Koy did the same. (Id., Ex. B, pp. 16, 31, 141, 159). In light of this,
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the Court finds it immaterial that they have spent limited time communicating with
counsel or were notified of this potential litigation via a targeted social media ad by
counsel.
When viewed in context, many of GradImages’ criticisms lose force. For
example, GradImages points to the fact that Gaertner did not know at the time of his
deposition the name of the law firm that is representing him. (Doc. 94, p. 7). But the
transcript reflects that Gaertner correctly identified his attorneys by name and
simply failed to distinguish between two similarly named entities. (Id., Ex. B, p.
16:18–24).
GradImages also argues that Gaertner and Koy provided “demonstrably false”
testimony, which calls into question their adequacy to serve as representatives (Id.,
p. 10). GradImages bases this assertion on Koy’s alleged failure to initially list certain
individuals with whom she discussed the litigation, and Gaertner’s statement that he
“closely reviewed his interrogatory answers via the DocuSign process,” among other
discrepancies. (Id.). The record does not support such a characterization.
Defendants rely on In re Northfield Laboratory, Inc. Securities Litigation to
argue inadequacy of a class representative when false testimony is given. (Id. (citing
267 F.R.D. 536 (2010)). However, in Northfield, the proposed representative was
found inadequate due to what the court perceived as a “willingness to give a false
answer.” 267 F.R.D. at 542. No such intentional falsehoods are found in this case.
GradImages argues that Koy failed to disclose conversations she had with
GradImages in his initial interrogatory responses. (Doc. 94, p. 10). However, her
deposition makes clear that the conversations with individuals which GradImages
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argues should have been disclosed in the initial interrogatory responses did not occur
until after the responses were filed. (See Doc. 94, Ex. A 86:16–24, 91–93:15, 165:23–
166). Once the conversations occurred, Koy supplemented her answers. (Id., Ex. D, ¶
9).
As for Gaertner, GradImages contends that he could not have closely reviewed
the interrogatory answers because the “DocuSign document shows he only reviewed
his answers for a mere 33 seconds prior to execution.” (Id., p. 10). However, as
Plaintiffs point out, Gaertner’s testimony later explains that he reviewed the
document for the longer claimed duration prior to viewing the document through
DocuSign. (Id., Ex. B, p. 164:13–16).
The 	Court 	is 	unconvinced that 	discrepancies 	in 	testimony like 	this are
sufficient to discredit Plaintiffs as class representatives. See Kadia v. Gonzales, 501
F.3d 817, 821 (7th Cir. 2007) (emphasizing that witnesses often fumble and make
mistakes during testimony, and that this is not sufficient to disbelieve the entirety of
their testimony). It is clear from the record that Plaintiffs have demonstrated
sufficient involvement and understanding of the litigation to satisfy the standard for
adequacy.
GradImages 	further 	contends 	that 	Gaertner 	and 	Koy 	are 	inadequate
representatives due to credibility concerns. (Doc. 94, p. 3). While credibility can, in
rare cases, disqualify a representative, the Seventh Circuit has cautioned that courts
should 	not 	“derail 	legitimate 	class 	actions 	by 	conjuring 	up 	trivial 	credibility
problems.” See CE Design, 637 F.3d at 728. Disqualification requires admissible
evidence that “severely undermine[s] plaintiff’s credibility.” Id.
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Defendants argue that a distasteful social media post made by Koy’s boyfriend
involving Koy reflects an extreme lack of judgment sufficient to discredit her as a
class representative. (Doc. 94, pp. 2, 11–12). The Court once again disagrees. The post
in question depicted Koy and her boyfriend in a photograph sarcastically titled
“cousins by chance, lovers by choice.” (Id. p. 2). The post amassed 44,000 “likes.” (Id.)
Koy, in her deposition, acknowledged that the post was a “dumb joke” that she
wouldn’t want her employer to see, but that her and her boyfriend thought that their
friends would see it and understand that it is satire. (Doc. 94, Ex. A, p. 202). Courts
have found adequacy despite far more troubling personal conduct unrelated to the
litigation. See Curry v. Kraft Foods Glob., Inc., No 10 C 1288, 2011 WL 4036129 at *4
& n.1 (ND. Ill. Sept 12, 2011) (representatives still adequate despite purchasing drugs
on defendant’s property, lying on job applications, or being disciplined for violence at
work). 	Generally, 	disqualification 	is 	only 	necessary 	where 	the 	proposed
representative 	displayed 	behavior 	directly 	indicative 	of 	dishonesty. 	Id. 	at 	*4
Disqualification is not triggered by general moral shortcomings. Id.; see also Phipps
v. Sheriff of Cook County, 249 F.R.D. 298, 301 (N.D. Ill. 2008) (representative found
adequate despite prior drug conviction). Indeed, in Northfield, the court found a
representative adequate where he had prior been sued (not found guilty) for sexual
assault, as well as medical malpractice and other employment litigation. 267 F.R.D.
at 543. Accordingly, this Court finds Koy’s boyfriend’s social media post to be
irrelevant to her ability to serve as a class representative. Further, this Court does
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not agree that Koy engaged in spoliation because the post was deleted after her
deposition, as the post is preserved in evidence.2
In light of the foregoing, this Court is satisfied that Gaertner and Koy are
adequate class representatives.
ii. 	Adequacy of Class Counsel
Rule 23(g) provides guidance for the adequacy of proposed class counsel. In
assessing adequacy, courts consider the work counsel has performed, their experience
with class actions and the relevant law, and the resources they will commit to the
case. F ED. R. CIV. P. 23(g)(1)(A)(i)–(iv). Courts also look at the quality, diligence, care,
and attention to detail reflected in counsel’s litigation conduct. See Gomez, 649 F.3d
at 593 (citing 7A WRIGHT & MILLER’S F EDERAL P RACTICE AND P ROCEDURE § 1769.1 (3d
ed. 2005)).
Plaintiffs have demonstrated that the attorneys of record, John J. Driscoll and
Matthew Joseph Limoli, are adequate to serve as class counsel pursuant to Rule
23(g). 	Attorney 	Driscoll 	has 	extensive 	experience 	litigating 	complex 	and 	class
matters, including service as class counsel in multiple actions, several of which
involved BIPA claims. (Doc. 91, Ex. I, ¶¶ 3–6). He has a proven track record of
achieving major settlements in class action cases. (Id., Ex. I). This experience weighs
strongly in favor of adequacy. See F ED. R. CIV. P. 23(g)(1)(A)(ii). Further, both Driscoll
and Limoli have competently litigated the case to date, including briefing that
2 Rule 37(e) regarding ESI has five threshold requirements, one of which is whether the lost ESI can
be restored or replaced through additional discovery. FED. R. C IV. P. 37(e). Here, all relevant
information is still available.
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prevailed on Defendants’ motions to compel arbitration and to dismiss. (Doc. 97, p. 9
n.8). Defendants’ criticisms of the named Plaintiffs’ ability to recall or preparation for
depositions do not demonstrate inadequacy by counsel. As explained above, the
representatives themselves are adequate, and the minor discrepancies Defendants
highlight do not resemble the conduct that led courts to question adequacy in cases
such as Gomez. 649 F.3d 583;
Defendants 	also 	fault 	Plaintiffs 	for 	not 	providing 	detailed 	financial
information, which reflect on counsel’s ability to commit resources to represent the
class. (Doc. 94, p. 21). However, the resources of counsel, which are relevant under
Rule 23(g)(1)(A)(iv), is only one factor of four that this court must consider. In any
case, the Court finds it reasonable to assume, given his track record in prior litigation,
that Attorney Driscoll’s statement that he and his firm are prepared to offer “the
resources and the proven ability to effectively represent class members” is sufficient
to satisfy Rule 23(g). (Doc. 91, Ex. I, ¶ 9). Defendants further take issue with Attorney
Limoli, arguing there is scant evidence of his experience in class actions. (Doc. 94, pp.
21–22). This Court is satisfied given Attorney Limoli’s performance in this litigation
thus far and the depth of experience of his co-counsel, that Driscoll and Limoli
collectively meet the requirements of Rule 23(g)(1)(A)(ii) by a preponderance of the
evidence. See Messner, 669 F.3d at 811.
Finally, Defendants’ points regarding the registration status of The Driscoll
Firm, LLC or P.C. are unavailing. Defendants point out that The Driscoll Law Firm,
P.C. was not authorized to conduct business in Illinois for a period of five months
during the pendency of this case. (Doc. 94, p. 21). But Defendants have not shown
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that 	maintaining 	this 	litigation 	constitutes 	“transacting 	business” 	requiring
registration, and even if it did, reinstatement under Illinois law restores an entity’s
existence 	“without 	interruption.” 	See 	805 	I LL. 	COMP . 	STAT . 	180/45–47(a)(1),
5/12.45(d). In any case, this allegation bears little relation to the standard required
by 23(g). Considering all the relevant facts, the Court finds no basis to doubt that
Plaintiffs’ counsel will be “competent, experienced, qualified, and generally able to
conduct the proposed litigation vigorously.” Arenson, 164 F.R.D. at 664 (citing
Kriendler, 877 F. Supp. at 1159).
Given the substantial experience of Plaintiffs’ counsel, their performance in
this litigation to date, and the absence of any credible indication of conflict or
disloyalty, the Court concludes that Plaintiffs’ counsel is adequate under Rule 23(g).
Rule 23(a)(4) is therefore entirely satisfied.
III. 	Rule 23(b) Requirements
Rule 23 allows for class certification when the requirements of Rule 23(a) and
one of the three subdivisions of Rule 23(b) are met. See Messner, 669 F.3d at 811. A
plaintiff seeking certification under Rule 23(b)(3), as is the case here, is required to
show that common questions of law and fact predominate, and that a class action is
the superior method for adjudicating the dispute. F ED. R. CIV. P. 23(b)(3).
a. 	Predominance
While similar to Rule 23(a)(2)’s commonality requirement, the predominance
requirement is “far more demanding.” See Amchem, 521 U.S. at 624. It is satisfied
when “common questions represent a significant aspect of [a] case and . . . can be
resolved for all members of [a] class in a single adjudication. Messner, 669 F.3d at 815
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(quoting WRIGHT & MILLER, F EDERAL P RACTICE & P ROCEDURE § 1778 (3d ed. 2011)).
Predominance 	exists 	when 	a 	“common 	nucleus 	of 	operative 	facts 	and 	issues”
underlies the claims brought by the proposed class. Id. (quoting In re Nassau County
Strip Search Cases, 461 F.3d 219, 228 (2d Cir. 2006)). A question is common if the
same evidence will allow each member to make a prima facia showing on that issue.
Id. (quoting Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)). By contrast,
an individual question is one where “members of a proposed class will need to present
evidence that varies from member to member.” Tyson Foods, Inc. v. Bouaphakeo, 577
U.S. 442, 453 (2016) (quoting 2 N EWBERG & RUBENSTEIN ON CLASS ACTIONS § 4:50,
196–97 (5th ed. 2012).
Predominance does not require the absence of individual questions, only that
common questions predominate over the individual ones. See Messner, 669 F.3d at
815. Thus, Rule 23(b)(3) is satisfied even if “other important matters will have to be
tried separately, such as damages or some affirmative defenses peculiar to some
individual class members.” Tyson Foods, 577 U.S. at 453–54 (quoting WRIGHT &
MILLER’S F EDERAL P RACTICE AND P ROCEDURE § 1778 (3d ed. 2005). When weighing
common questions against individual ones, efficiency is critical: “when adjudication
of questions of liability common to the class will achieve economies of time and
expense, the predominance standard is generally satisfied even if damages are not
provable in the aggregate.” Chi. Teachers Union, Local No. 1 v. Bd. Of Educ. Of City
of Chi., 797 F.3d 426, 444 (7th Cir. 2015).
Plaintiffs argue that predominance is established through several core, class-
wide questions. (Doc. 91, pp. 17–21). Plaintiffs assert that liability under BIPA turns
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on GradImages’ standardized conduct, including whether GradImages employed a
uniform facial recognition process to analyze graduation photographs, whether that
process resulted in GradImages obtaining or possessing biometric identifiers or
biometric information, and whether GradImages failed to comply with BIPA’s notice,
consent, and profit-related requirements. (Doc. 91, pp. 18–20). In essence, the
common questions ask whether a statutory violation of BIPA occurred. As Plaintiffs
note, courts have found predominance where these same essential common questions
were present in BIPA class actions. See Howe, 2024 WL 4346631, at *17; Svoboda,
2024 WL 1363718, at *9; TikTok, 617 F. Supp. 3d at 926, 927; Rogers, 2022 WL
854348, at *3. Plaintiffs correctly observe that if they cannot show GradImages
obtained or possessed biometrics, all claims fail, making this a quintessential
common question. (Doc. 91, p. 20); see also Amgen Inc. v. Conn. Ret. Plans & Tr.
Funds, 568 U.S. 455, 468 (2013) (“a failure of proof on the common question of
materiality ends the litigation and thus will never cause individual questions of
reliance or anything else to overwhelm questions common to the class.”).
Defendants 	do 	not 	meaningfully 	dispute 	that 	these 	threshold 	liability
questions are common. Instead, they raise a variety of purported individualized
inquiries. (Doc. 94, pp. 27–28). Although Defendants frame these arguments under
the commonality requirement of Rule 23(a)(2), they are more appropriately addressed
under Rule 23(b)(3). This Court considers each argument below and concludes that
none outweighs the common questions that drive this litigation.
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i. 	Public and Private Universities
Defendants first argue that predominance is lacking because the proposed
class includes students from both public and private universities, which allegedly
requires individualized determinations regarding whether GradImages qualifies for
the state-agency contractor exception under Section 25(e) or the financial institution
affiliate exception under Section 25(c). (Doc. 94, pp. 24–26). According to GradImages,
resolving these issues would require school-by-school inquiries into each university’s
status and GradImages’ contractual relationships with them. (Id.)
These arguments do not defeat predominance. The fact that statutory defenses
may apply differently to some class members does not preclude certification where
common questions otherwise predominate. See Tyson Foods, 577 U.S. at 453–54. At
most, the circumstances Defendants identify would create a small number of broad
subgroups, not the kind of individualized, plaintiff-by-plaintiff variation that has
defeated 	predominance 	in 	other 	cases. 	See 	e.g., 	Amchem, 	521 	U.S. 	at 	624
(predominance lacking where class members were exposed to different asbestos-
containing products at different times in different ways). If necessary, any public-
private distinction could be addressed through the creation of subclasses or partial
liability determinations but does not transform this case into one dominated by
individual issues.
This Court is also unpersuaded by Defendants’ assertion that differences in
university policies, communications, or graduation procedures require individualized
adjudication of liability. (Doc. 94, pp. 25–26). The universities are not defendants, and
Plaintiffs’ claims do not depend on university-specific notice or consent practices.
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Rather, the claims arise from GradImages’ own alleged collection and use of biometric
data through a uniform process. Speculation about potential variation in third-party
conduct, unsupported by evidence that such variation will overwhelm common issues,
is insufficient to defeat predominance. See Svoboda, 2024 WL 1363718, at *11
(quoting Heard v. Becton, Dickinson & Co., 524 F. Supp. 3d. 831, 850 (N.D. Ill. 2021)
(“[A]llowing such speculation to dictate the outcome of a class-certification decision
would afford litigants in future cases ‘wide latitude to inject frivolous issues to bolster
or undermine a finding of predominance.’”).
ii. 	Website Terms of Use and Arbitration
Defendants next contend that individualized inquiries regarding whether class
members viewed its website Terms of Use, and thus agreed to arbitration, defeat
predominance. (Doc. 94, pp. 27–28). This argument likewise fails. The existence or
enforceability of arbitration agreements is a threshold issue that, absent evidence
that individualized inquiries would necessarily defeat predominance, does not bear
on whether common questions predominate with respect to liability. Even assuming
that some class members may be subject to arbitration while others are not, that fact
does not overwhelm the common questions concerning whether GradImages violated
BIPA through its standardized conduct.
GradImages offers no evidence that a meaningful number of class members
actually viewed or assented to the Terms of Use before any alleged BIPA violation
occurred. 	Predominance 	cannot 	be 	defeated 	by 	theoretical 	or 	speculative
individualized issues. See Toney v. Quality Res., Inc., 323 F.R.D. 567, 587 (N.D. Ill.
2018); see also Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292 (N.D. Ill. 2014)
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(holding that an affirmative defense of consent did not defeat predominance absent
evidentiary support showing that individualized issues would predominate). By
contrast, in Legg v. PTZ Ins. Agency, Ltd., predominance was defeated because the
defendants 	submitted 	affidavits 	from 	numerous 	class 	members 	establishing
individualized consent, which would have required extensive, member-by-member
testimony at trial. 321 F.R.D. 572, 577 (N.D. Ill. 2017). That is the type of evidentiary
showing required to defeat predominance. On the present record, the mere possibility
that some class members may have agreed to arbitration does not predominate over
the common liability questions central to this case.
iii. 	Damages and Section 15(c)
Defendants’ arguments concerning damages fare no better. First, Defendants
assert that individualized inquiries are required to establish injury under Section
15(c) (see Doc. 94, p. 28), however, that contention improperly conflates merits
questions with the predominance analysis. Whether Plaintiffs can ultimately prove
their theory of injury is not a question that must be resolved at certification. See
Amgen, 568 U.S. at 491 (“A plaintiff seeking class certification is not required to prove
the elements of his claim at the certification stage, but he must show that the
elements of the claim are susceptible to classwide proof.”) (Thomas, J., dissenting).
Plaintiffs allege (among other things) that GradImages using Gaertner and Koy’s
biometrics to “facilitate [its] sale of photographs” qualifies as a violation of 15(c). (Doc.
46). Predominance does not require the Court to decide whether Plaintiffs will
prevail, only whether their claims can be tried efficiently using common evidence. See
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Amgen, 568 U.S. at 459. The inquiry is whether questions common to the class
predominate, not whether they will be answered one way or the other. Id.
Second, GradImages argues that the potential magnitude of a damages award
would violate Cothron v. White Castle Sys., Inc. and urges the Court to adopt a
discretionary damages framework that would necessarily require individualized
damages determinations. (Doc. 94, p. 29 (citing 477 F. Supp. 3d 723 (N.D. Ill. 2020),
aff’d, 79 F.4th 894 (7th Cir. 2023)). Once again, this argument does not defeat
predominance.
The possible size of a statutory damages award does not undermine class
certification, nor does it transform damages into an individualized issue that
overwhelms common questions. Concerns regarding proportionality, discretion, or
equity in awarding statutory damages under BIPA are properly addressed at later
stages of the litigation and do not bear on whether class-wide adjudication is
appropriate. See Parker v. Time Warner Ent. Co., 331 F.3d 13, 22 (2d Cir. 2003).
Courts have repeatedly rejected the contention that the prospect of large statutory
damages precludes certification. See Murray v. GMAC Mortgage Corp., 434 F.3d 948,
954 (7th Cir. 2006) (“An award that would be unconstitutionally excessive may be
reduced, but constitutional limits are best applied after a class has been certified.”)
(citation modified); Tapia-Rendon, WL 5228178, at *6 (“[T]he fact that damages
under BIPA are discretionary after Cothron does not mean that they cannot be
awarded in a common class-wide manner.”). Consistent with this authority, courts
have certified BIPA classes despite similar objections. See Svoboda, 2024 WL
1363718, 	at 	*14–15. 	As 	the 	Seventh 	Circuit 	has 	explained, 	the 	possibility 	of
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substantial damages reflects legislative policy choices, not a defect in the class action
mechanism. GMAC Mortgage Corp., 434 F.3d at 953.
Further, even if the Court later adopts the theory of damages that Defendants
propose, the resulting individual inquiries into different class members would still
not defeat certification. The Seventh Circuit has made clear that “the need for
individual damages determinations at this later stage of the litigation does not itself
justify the denial of certification.” Mullins, 795 F.3d at 671; see also Arreola v.
Godinez, 546 F.3d 788, 801 (7th Cir. 2008). Accordingly, predominance is not defeated
on this theory.
Third, GradImages’ reliance on Comcast Corp. v. Behrend, 569 U.S. 27 (2013),
is misplaced. GradImages cites Comcast to say that Plaintiffs have not developed a
sufficient measure of damages, but Comcast requires that damages be tied to a theory
of liability, not that damages be calculable on a perfectly uniform, class-wide basis at
the certification stage. (Doc. 94, p. 30 (citing 569 U.S. 27 (2013)). As the Supreme
Court explained, “under the proper standard for evaluating certification, damages
[must be] capable of measurement on a class-wide basis.” Id. at 34. Here, BIPA
expressly provides for statutory damages tied to the alleged violations. See BIPA §
14/20
In sum, the core questions in this case concern whether GradImages obtained
or possessed biometric data through a uniform facial recognition process and whether
it failed to comply with BIPA’s statutory requirements. Those questions predominate
because they are central to every class member’s claim and can be resolved through
common evidence. The issues Defendants identify do not overwhelm the common
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liability questions. Accordingly, the Court finds that Plaintiffs have satisfied Rule
23(b)(3)’s predominance requirement.
b. 	Superiority
Superiority requires that a class action be the most fair and efficient method
for 	adjudicating 	the 	controversy. 	F ED. 	R. 	CIV. 	P. 	23(b)(3). 	In 	making 	this
determination, courts consider: (1) the class members’ interests in individually
controlling the prosecution of separate actions; (2) the extent and nature of any
litigation already commenced by or against class members; (3) the desirability of
concentrating the litigation in the particular forum; and (4) the likely difficulties in
managing a class action. F ED. R. CIV. P. 23(b)(3)(A)–(D). Courts evaluating BIPA
claims have routinely found the superiority requirement satisfied. See Johns v.
Paycor, Inc., No. 3:20-CV-264, 2025 WL 947914 (S.D. Ill. Mar. 28, 2025); Svoboda,
2024 WL 1363718.
Likewise, the Court concludes that the superiority requirement is satisfied
here. The common questions identified in this case are more efficiently resolved in a
single class proceeding than through individual actions. Central to Plaintiffs’ claims
is whether GradImages violated class members’ rights under BIPA through its
uniform practice of scanning photographs, a question capable of resolution on a class-
wide basis. The remaining factors also favor class treatment. There is no indication
of other litigation involving these claims or class members, (Doc. 91, Ex. H, pp. 10–
11), the Southern District of Illinois is a desirable forum given that Gaertner’s
graduation ceremony was held at Southern Illinois University, (Id., Ex. A, p. 98:3–
12), and the case is manageable under the class action framework. Individual
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litigation would be inefficient and impractical, making a class action the superior
method of adjudication.
IV. 	Evidentiary Burden
Lastly, this Court will address Defendants’ argument that Plaintiffs have
failed to meet their evidentiary burden under Rule 23. Defendants’ assertion that
Plaintiffs failed to submit actual evidence for class certification is not supported by
the record. While it is true that “[o]n issues affecting class certification . . . a court
may not simply assume the truth of the matters as asserted by the plaintiff,” the court
is only required to receive evidence when there are “material factual disputes.”
Messner, 669 F.3d at 811. The Court should not “turn the class certification
proceedings into a dress rehearsal for the trial on the merits.” Id. Here, the core facts
necessary to satisfy Rule 23 are either supported by evidence or not disputed by
Defendants.
The 	Court 	is 	satisfied 	that 	the 	depositions 	of 	Gaertner 	and 	Koy, 	the
interrogatories, and other materials submitted by Plaintiffs are sufficient for meeting
the requirements of Rule 23 as discussed above. The only piece of evidence that
Defendants 	meaningfully 	challenge 	is 	the 	veracity 	of 	the 	“Facial 	Recognition
Explanation” on GradImages’ website that Plaintiffs use as partial support for their
core allegation in this lawsuit. Regarding that core allegation, Plaintiffs argue they
submitted evidence showing that: (1) GradImages uses a process it itself labels “facial
recognition”; (2) that process involves submitting photographs to Microsoft; (3)
GradImages used that process on the photographs of Gaertner and Koy; and (4) the
same process was used on the photographs of thousands of others in Illinois. (Doc. 97,
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p. 1). Points (2) and (3) are established by GradImages’ verified interrogatory
responses. (Doc. 91, Ex. C, pp. 9–10; id., Ex. H, pp. 6–7). Point (4) is supported by
GradImages’ document production (Id., Ex. J, ¶¶ 8, 10).
The only disputed point is (1)—whether the website page describing the facial-
recognition process constitutes admissible evidence. (Doc. 94, pp. 12–13; Doc. 97, pp.
2–3). The Court concludes that it does. GradImages never denied writing the page.
In response to Plaintiffs’ interrogatory asking who authored it, GradImages objected
only on the ground that identifying the specific employee would require an extensive
company-wide search. (Doc. 59, pp. 18–19). GradImages’ statement in their Response
in Opposition to Plaintiffs’ Motion to Compel Discovery does seem to indicate the
Facial Recognition Explanation exists and was in some capacity produced by either
an employee of or someone affiliated with GradImages. (Doc. 59, p. 19). Thus, the
website’s authenticity is adequately established at the class-certification stage. See
Goplin v. WeConnect, Inc., 893 F.3d 488, 490–91 (7th Cir. 2018) (party’s “own
assertions” on website may be judicially noticed).3
Defendants’ criticisms that Plaintiffs failed to depose additional witnesses or
take corporate depositions do not alter the analysis. Plaintiffs bore the burden to
produce enough evidence to satisfy Rule 23. See Beaton, 907 F.3d at 1025 (citing
Abbott, 725 F.3d at 810). On this record, the necessary evidence came from Plaintiffs’
3 Defendants also briefly comment that the webpage is hearsay. (Doc. 94, p. 13). Because Plaintiffs
have credibly established that website was in some way created by Defendant, it constitutes a
statement by a party opponent and is therefore excluded from the definition of hearsay by Rule
801(d)(2)(A). See Telewisja Polska USA, Inc, v. Echostar Satellite Corp., No. 02 C 3293, 2004 WL
2367740, at *5 (N.D. Ill. October 15, 2004) (“Moreover, the contents of Polska’s website may be
considered an admission of a party-opponent, and are not barred by the hearsay rule.”)
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own 	testimony, 	GradImages’ 	interrogatory 	admissions, 	GradImages’ 	document
production, and GradImages’ own website explanations. Additional depositions were
not required.
Taken together, Plaintiffs have submitted sufficient evidence to demonstrate
numerosity, 	commonality, 	typicality, 	adequacy, 	predominance, 	and 	superiority.
GradImages identifies no genuine evidentiary deficiency that undermines the Rule
23 showing. Accordingly, the Court rejects GradImages’ argument that Plaintiffs
failed to submit actual evidence and finds the evidentiary record adequate for
certification.
C ONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Class Certification is
GRANTED.
IT IS SO ORDERED.
DATED: January 30, 2026
/s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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