Fischer v. Instant Checkmate LLC.

                  UNITED STATES DISTRICT COURT                           
              FOR THE NORTHERN DISTRICT OF ILLINOIS                      
                        EASTERN DIVISION                                 

ROBERT FISCHER, STEPHANIE LUKIS, and    )                                
TIFFANY ADAMS, individually and behalf of all others  )                  
similarly situated,                     )  19 C 4892                     
                                        )                                
                           Plaintiffs,  )  Judge Gary Feinerman          
                                        )                                
                  vs.                   )                                
                                        )                                
INSTANT CHECKMATE LLC,                  )                                
                                        )                                
                          Defendant.    )                                
                  MEMORANDUM OPINION AND ORDER                           
    Robert Fischer, Stephanie Lukis, and Tiffany Adams bring this putative class action 
against Instant Checkmate LLC, alleging violations of the Illinois Right of Publicity Act 
(“IRPA”), 765 ILCS 1075/1 et seq.  Thus far in the litigation, the court has denied Instant 
Checkmate’s motion to dismiss, Docs. 35-36 (reported at 

454 F. Supp. 3d 746

 (N.D. Ill. 2020)), 
denied its motions for reconsideration, certification of an interlocutory appeal, and summary 
judgment, Docs. 88-89 (reported at 

542 F. Supp. 3d 831

 (N.D. Ill. 2020)), and granted its motion 
to compel arbitration of Adams’s claim, Docs. 160-161 (reported at 

2021 WL 3033586

 (N.D. Ill. 
July 19, 2021)).  Plaintiffs move under Civil Rule 23 for class certification.  Doc. 151.  The 
motion is denied as to Adams because her claims must be arbitrated, and is granted in part and 
denied in part as to Fischer and Lukis.                                   
                           Background                                    
    This court’s prior opinions, familiarity with which is assumed, describe the factual 
backdrop of this case.  Only the pertinent details are set forth here.    
    A.   Instant Checkmate’s Search Function and Search Engine           
         Optimization Directory                                          
    Instant Checkmate operates www.instantcheckmate.com, a website that allows users to 
access background reports about people.  Doc. 167-2 at ¶¶ 2, 4.  The website has a free search 
function through which a user can search for an individual.  Id. at ¶ 5.  To conduct a search, the 
user enters the individual’s first and last name into the search bar.  Id. at ¶ 9.  After progressing 
through additional pages, the website presents the user with a search results page.  Id. at ¶ 22.  
Each result is a profile with a first name (or initial) and a last name, and may include an age, 
location(s), and names of possible relatives.  Id. at ¶¶ 24, 40.          
    A search results page typically lists more than one result, and often there are multiple 

results with the same name.  Doc. 167-15 at ¶ 8.  The website instructs the user to “[f]ind a result 
that matches whom you’re looking for the most.”  Doc. 167-2 at ¶ 23.  The user may select a 
search result by clicking the “OPEN REPORT” button for that result.  Id. at ¶ 25; Doc. 167-16 at 
¶ 5.  If the user selects “OPEN REPORT,” the website takes her through a series of pages before 
reaching the “registration page.”  Doc. 167-2 at ¶¶ 28, 35, 37.  The registration page presents the 
user with the option to purchase an Instant Checkmate membership.  Id. at ¶ 37.   
    When a user selects a search result, Instant Checkmate records a “record pointer,” also 
called a “search person ID,” in its “event services database.”  Doc. 167-16 at ¶ 14.  A record 
pointer is a unique identifier corresponding to the background report for the search result 
selected by the user.  Ibid.  The record pointer does not contain any of the information displayed 

in the search result; Instant Checkmate does not store that information.  Id. at ¶¶ 7, 9, 15.  
According to Instant Checkmate, there is no way to recreate the search results displayed to any 
user in the past because its “data provider’s data are constantly changing or being updated.”  Id. 
at ¶ 9.                                                                   
    Instant Checkmate also maintains a Search Engine Optimization (“SEO”) Directory, 
which is designed to improve the site’s rankings on Google and other search engines.  
Doc. 167-15 at ¶ 15.  The SEO Directory has profiles of persons with each person’s name and 
sometimes their age, location(s), and possible relatives.  Id. at ¶ 18.  The directory makes the 

underlying data available to search engines, though not in the form of discrete profiles.  Id. at 
¶ 19.  The directory’s data are generated through searches on both Instant Checkmate’s website 
and partner sites.  Id. at ¶¶ 20, 22.  The data in the SEO Directory is not necessarily shown to any 
user of Instant Checkmate’s website.  Id. at ¶¶ 20-24.  Instant Checkmate does not track, and in 
general cannot determine, whether any specific individual’s SEO Directory profile was displayed 
to or selected by a user.  Id. at ¶¶ 27-28.                               
    B.   Instant Checkmate’s Terms of Use and Class Action Waivers       
    Instant Checkmate asserts, and Plaintiffs do not dispute, that Fischer and Lukis agreed to 
its Terms of Use by accessing its website.  Doc. 167 at 14-15; Doc. 177 at 5.  The Terms of Use, 
which are governed by California law, Doc. 167-14 at 20, have two class action waivers, both 
under the heading “Arbitration and Class Action Waiver,” id. at 17-19.    

    The first waiver appears as part of an arbitration agreement.  The arbitration agreement 
states that “all claims, disputes or controversies between [users] and Instant Checkmate … 
including … claims based upon any federal, state or local statute … shall be resolved by the final 
and binding arbitration procedures set forth below.”  Id. at 18.  The next sentence states that “any 
such claims shall be brought solely in the party’s individual capacity, and not as a plaintiff or 
class member in any purported class, representative proceeding, or private attorney general 
capacity.”  Ibid.  The following sentence prohibits the arbitrator from “consolidat[ing] more than 
one person’s claims” or “otherwise presid[ing] over any form of a representative or class 
proceeding.”  Ibid.                                                       
    The second class action waiver, which appears several paragraphs later, states that it is 
both “[s]eparate and apart from the agreement to arbitrate set forth above” and “material and 
essential to the arbitration of any disputes between the parties and … non-severable from the 
agreement to arbitrate claims.”  Id. at 19.  The second waiver “independently waive[s] any right 

to bring or participate in any class action in any way related to, arising from, this agreement.”  
Ibid.                                                                     
    In October 2020, Instant Checkmate moved to compel the arbitration of Lukis’s and 
Fischer’s claims.  Doc. 90.  Instant Checkmate then withdrew the motion, thereby waiving 
whatever arbitration rights it might have had against them.  Doc. 110.  In so doing, Instant 
Checkmate expressly reserved its right to enforce the class action waiver against them in the 
event they sought class certification.  Id. at 1.                         
    As of November 13, 2020, Instant Checkmate updated the Terms of Use to include a 
consent provision directed at users who search the website for themselves, or who authorize 
another person to do so.  Doc. 167-2 at ¶ 50; Doc. 167-7 at 5-6.  The provision purports to grant 

Instant Checkmate the self-searching user’s consent “to the use and display of information about 
[the user] (including, without limitation, [the user’s] name and other attributes of [the user’s] 
identity) … for any and all commercial and non-commercial purposes.”  Doc. 167-7 at 5. 
    C.   Proposed Class Definitions                                      
    Plaintiffs propose three classes.  The putative Injunctive Relief Class, which Plaintiffs 
seek to certify under Rule 23(b)(2), is defined as: “All Illinois residents for whom (i) Defendant 
can generate a name, age, and one or more location(s) and relative(s) (ii) in either the SEO 
Directory or the Search Results of the Website.”  Doc. 151 at 10.         
    The other two proposed classes, which Plaintiffs seek to certify pursuant to 
Rule 23(b)(3), seek only statutory damages for past IRPA violations and exclude anyone who 
has incurred actual damages.  Id. at 10-11.  The putative Search Results Class is defined as:  
     All Illinois residents for whom (i) a Search Result was listed on the Website 
     (ii) that included their name, age, location(s), and relative(s) and (iii) was 
     actually selected by a user of the Website (iv) during a period beginning 
     January 1, 2016 and continuing to the date of class certification.  
Ibid.  And the putative SEO Directory Class is defined as:                
     All Illinois residents who were listed in the SEO Directory on or since the date 
     of filing of the complaint and continuing to the date of class certification, 
     where such listing included that person’s name, age, location(s), and 
     relative(s).                                                        
Id. at 11.                                                                
                           Discussion                                    
    A court’s analysis of class certification “is not free-form, but rather has been carefully 
scripted by the Federal Rules of Civil Procedure.”  Chi. Teachers Union, Loc. No. 1. v. Bd. of 
Educ., 

797 F.3d 426, 433

 (7th Cir. 2015).  To be certified, a proposed class must satisfy the four 
requirements of Rule 23(a): “(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 claims or 
defenses of the representative parties are typical of the claims or defenses of the class; and 
(4) the representative parties will fairly and adequately protect the interests of the class.”  Fed. R. 
Civ. P. 23(a); see Bell v. PNC Bank, N.A., 

800 F.3d 360, 373

 (7th Cir. 2015).  If Rule 23(a) is 
satisfied, the proposed class must fall within one of the three categories in Rule 23(b), which the 
Seventh Circuit has described as: “(1) a mandatory class action (either because of the risk of 
incompatible standards for the party opposing the class or because of the risk that the class 
adjudication would, as a practical matter, either dispose of the claims of non-parties or 
substantially impair their interests), (2) an action seeking final injunctive or declaratory relief, or 
(3) a case in which the common questions predominate and class treatment is superior.”  Spano 
v. Boeing Co., 

633 F.3d 574, 583

 (7th Cir. 2011); see also Bell, 

800 F.3d at 373

 (“In addition to 
meeting [the Rule 23(a)] requirements, the class must satisfy one of the ... conditions in 
Rule 23(b).”).  Finally, the class must be “identifiable as a class,” meaning that the “class 

definitions must be definite enough that the class can be ascertained.”  Oshana v. Coca-Cola Co., 

472 F.3d 506, 513

 (7th Cir. 2006); see Mullins v. Direct Dig., LLC, 

795 F.3d 654, 659-72

 
(7th Cir. 2015) (reviewing Rule 23’s “ascertainability requirement”).     
    Fischer and Lukis bear the burden of showing by a preponderance of the evidence that 
each requirement for class certification is satisfied.  See Priddy v. Health Care Serv. Corp., 

870 F.3d 657, 660

 (7th Cir. 2017); Messner v. Northshore Univ. HealthSystem, 

669 F.3d 802, 811

 
(7th Cir. 2012).  “[A] district court must make whatever factual and legal inquiries are necessary 
to ensure that requirements for class certification are satisfied before deciding whether a class 
should be certified, even if those considerations overlap the merits of the case.”  Am. Honda 
Motor Co. v. Allen, 

600 F.3d 813, 815

 (7th Cir. 2010); see Kartman v. State Farm Mut. Auto. Ins. 

Co., 

634 F.3d 883

, 889-90 & n.6 (7th Cir. 2011) (same).  For the following reasons, Fischer and 
Lukis meet their burden as to the SEO Directory Class and Injunctive Relief Class, but not as to 
the Search Results Class.                                                 
I.   Rule 23(a)                                                           
    Instant Checkmate concedes that Rule 23(a)(1) numerosity and Rule 23(a)(2) 
commonality are satisfied, and contests only Fischer’s and Lukis’s typicality and adequacy under 
Rules 23(a)(3) and (a)(4).  Those criteria are satisfied as well.  Plaintiffs’ claims are typical 
because they “arise[] from the same event or practice or course of conduct that gives rise to the 
claims of other class members and [are] based on the same legal theory.”  Lacy v. Cook Cnty., 

897 F.3d 847, 866

 (7th Cir. 2018).  Specifically, Fischer and Lukis allege that Instant Checkmate 
appropriated their and the putative class members’ identities by including them in its search 
results and in the SEO Directory, in violation of the IRPA.  Similarly, Fischer and Lukis are 
adequate because they are “member[s] of the putative class and have the same interest and injury 
as other members,” Beaton v. SpeedyPC Software, 

907 F.3d 1018, 1027

 (7th Cir. 2018), and 

there are no apparent conflicts of interest within the classes that would require them “to choose 
between competing class members,” Johnson v. Meriter Health Servs. Emp. Ret. Plan, 

702 F.3d 364, 372

 (7th Cir. 2012).  Instant Checkmate presents several challenges to typicality and 
adequacy, but none has merit.                                             
    A.   Class Action Waivers                                            
    Instant Checkmate argues that Fischer’s and Lukis’s assent to the Terms of Use, and thus 
to the two class action waivers therein, precludes them from representing the proposed classes.  
Doc. 167 at 16.  Even assuming that a proposed class representative subject to a class waiver is 
necessarily inadequate or atypical, see Korea Week, Inc. v. Got Cap., LLC, 

2016 WL 3049490

, at 
*11 (E.D. Pa. May 27, 2016) (holding that named plaintiffs who had signed enforceable class 
action waivers were inadequate), Instant Checkmate’s argument fails because the two waivers do 

not govern the IRPA claims Plaintiffs bring here.                         
    As noted, the first class waiver appears as part of the Terms of Use’s arbitration 
agreement.  “[A]lthough class action waivers are often found in arbitration agreements … , the 
two contract terms are conceptually distinct.”  Laver v. Credit Suisse Sec. (USA), LLC, 

976 F.3d 841

, 846 (9th Cir. 2020) (internal quotation marks, alterations, and emphasis omitted) (noting 
that “[a] class action waiver is a promise to forgo a procedural right to pursue class claims,” 
while “an agreement to arbitrate is a promise to have a dispute heard in some forum other than a 
court”) (internal quotation marks and emphasis omitted).  Thus, Instant Checkmate’s waiver of 
its right to seek arbitration of Fischer’s and Lukis’s claims does not by itself make the first class 
waiver unenforceable against them—especially because Instant Checkmate expressly preserved 
its right to enforce the class waivers.  Doc. 110 at 1.  Rather, the effect of the first class waiver 
depends on whether its language, considered in context, waives class arbitration, class action 
litigation, or both.                                                      

    By its express terms, the first waiver applies only in arbitration.  The waiver’s text, 
emphasized below, appears amid, and is inextricably intertwined with, the Terms of Use’s 
arbitration agreement:                                                    
     [Y]ou and Instant Checkmate understand and agree that all claims, disputes or 
     controversies between you and Instant Checkmate … including … claims 
     based upon any federal, state or local statute … shall be resolved by the final 
     and binding arbitration procedures set forth below.  The parties acknowledge 
     and agree that any such claims shall be brought solely in the party’s 
     individual capacity, and not as a plaintiff or class member in any purported 
     class, representative proceeding, or private attorney general capacity.  The 
     parties further agree that the arbitrator may not consolidate more than one 
     person’s claims, and may not otherwise preside over any form of a   
     representative or class proceeding.                                 
Doc. 167-14 at 18 (emphasis added).                                       
    Although the waiver, standing alone in the second sentence of this three-sentence 
passage, is not specific to arbitration or litigation, the sentences that precede and follow it 
provide “important context.”  Meyer v. Kalanick, 

185 F. Supp. 3d 448, 453

 (S.D.N.Y. 2016) 
(California law); see 

Cal. Civ. Code § 1641

 (“The whole of a contract is to be taken together, … 
each clause helping to interpret the other.”).  Specifically, “[t]he provisions directly before and 
after the [first class waiver] … concern arbitration”: the first sentence defines the set of claims 
subject to arbitration, and the third “elaborates on certain features of the arbitration proceedings.”  
Meyer, 

185 F. Supp. 3d at 453

.  Thus, the phrase “any such claims” in the class waiver plainly 
refers to the claims that the preceding sentence requires be brought in arbitration.  See Littlefield 
v. Mashpee Wampanoag Indian Tribe, 

951 F.3d 30

, 37 (1st Cir. 2020) (“Normal usage in the 
English language would read the word ‘such’ as referring to the entire antecedent phrase.”); 
Such, Black’s Law Dictionary (11th ed. 2019) (“That or those; having just been mentioned.”).  
“Given this context, the [first class waiver] is most plausibly read as an explanation of the rights 
that the parties are giving up in agreeing to arbitrate disputes, and not as an independently 

effective waiver of the right to pursue a class action outside the arbitration context.”  Meyer, 

185 F. Supp. 3d at 453-54

; accord Vine v. PLS Fin. Servs., Inc., 

807 F. App’x 320

, 328 (5th Cir. 
2020) (citing Meyer with approval in construing a similar provision).     
    Pressing the contrary result, Instant Checkmate cites Horton v. Dow Jones & Co., 

804 F. App’x 81

 (2d Cir. 2020), and Bock v. Salt Creek Midstream LLC, 

2020 WL 5640669

 (D.N.M. 
Sept. 22, 2020).  Doc. 167 at 15 n.6.  Because the class waivers in those decisions materially 
differ from the first class waiver here, neither decision helps Instant Checkmate.  In Horton, the 
Second Circuit sensibly held that a waiver prohibiting “both ‘class arbitrations and class 
actions’” applied in both arbitration and litigation.  804 F. App’x at 84 (emphasis added).  Instant 
Checkmate’s first class waiver, however, does not specifically prohibit both “class actions” and 

“class arbitrations.”  In Bock, the district court held that, “[b]y its plain language, the class action 
waiver provision is not tied to the arbitration provisions at issue,” in part because the class 
waiver and the arbitration provisions appeared in entirely different sections of the contract.  

2020 WL 5640669

, at *9.  By contrast, Instant Checkmate’s first class waiver is inexorably 
intertwined with its arbitration agreement and thus is best read as applying only in arbitration. 
    Instant Checkmate’s invocation of its second class waiver—under which Fischer and 
Lukis “waive[d] any right to bring or participate in any class action in any way related to, or 
arising from,” the Terms of Use, Doc. 167-14 at 19—fails as well.  Plaintiffs’ IRPA claims do 
not “relate[] to” or “aris[e] from” the Terms of Use because the Terms govern only their use of 
the site, while their IRPA claims arise from other users’ use of the site.  See Lukis v. Whitepages 
Inc., 

535 F. Supp. 3d 775

, 792 (N.D. Ill. 2021) (holding that the plaintiff’s materially identical 
IRPA claims against Whitepages Inc. did not relate in any way to the plaintiff’s use of 
Whitepages’s services).  Accordingly, the second class waiver does not preclude Plaintiffs from 

pursuing class litigation of their IRPA claims.                           
    Because neither class action waiver, by its own terms, applies to Fischer’s and Lukis’s 
IRPA claims, there is no need to decide whether the waivers are unconscionable under California 
law.  See Discover Bank v. Superior Ct., 

113 P.3d 1100, 1110

 (Cal. 2005) (holding that some 
class action waivers are unconscionable), abrogated in part by AT&T Mobility LLC v. 
Concepcion, 

563 U.S. 333

 (2011).                                          
    B.   Membership in the Putative Classes                              
    Instant Checkmate next argues that Fischer and Lukis cannot be adequate or typical 
because they are not members of the putative classes.  Doc. 167 at 23-24; see Orr v. Shicker, 

953 F.3d 490

, 499 (7th Cir. 2020) (“A class representative must be part of the class … .”).  That 
argument fails to persuade.                                               

    As to the SEO Directory Class, Instant Checkmate argues that Plaintiffs “have failed to 
prove that their SEO Directory profiles were displayed to a third-party [Instant Checkmate] 
user.”  Doc. 167 at 23.  Even if factually correct, that argument is immaterial to class 
membership, for the SEO Directory Class definition, by its terms, does not require that a class 
member’s profile have been displayed to any third-party user.  Doc. 151 at 11.  Instant 
Checkmate also contends that Fischer “does not claim that his identity was ‘listed in the SEO 
Directory.’”  Doc. 167 at 23.  That argument is unpersuasive, for by Instant Checkmate’s own 
admission, it has “suppressed” Fischer’s information, a term it defined as “block[ing] a person’s 
… SEO Directory profile.”  Doc. 167-16 at ¶¶ 41-42.                       
    Instant Checkmate next argues that the Search Results Class “must be limited (among 
other things) to Illinois residents whose search results were selected by a user other than 
themselves,” and that Fischer’s and Lukis’s search results were not selected by anyone other than 
themselves.  Doc. 167 at 24; Doc. 167-16 at ¶ 53.  As with the SEO Directory Class, third-party 

display of a class member’s search result is not part of the class definition.  Doc. 151 at 10-11. 
    As for the Injunctive Relief Class, Instant Checkmate argues that Fischer’s and Lukis’s 
claims are moot because it has “suppressed” their information such that “it will not be displayed 
in a search result or SEO Directory profile.”  Doc. 167 at 24 (citing Montoya v. Jeffreys, 

2020 WL 6581648

, at *7, *15 (N.D. Ill. Nov. 10, 2020)); Doc. 167-16 at ¶¶ 41-43; see Montoya, 

2020 WL 6581648

, at *15 (holding that a named plaintiff was an inadequate class representative 
because her claim might be partially moot).  “Voluntary cessation of challenged conduct moots a 
case, however, only if it is absolutely clear that the allegedly wrongful behavior could not 
reasonably be expected to recur.”  Adarand Constructors, Inc. v. Slater, 

528 U.S. 216, 222

 
(2000) (internal quotation marks omitted).  Instant Checkmate makes no effort to meet its “heavy 

burden of persuading the court that the challenged conduct cannot reasonably be expected to start 
up again.”  Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

528 U.S. 167, 189

 
(2000) (internal quotation marks and alteration omitted).  Thus, Fischer’s and Lukis’s claims for 
injunctive relief are not moot, and they retain a sufficient interest in the controversy to seek 
injunctive relief for the putative class members.                         
    C.   Unique Defenses                                                 
    Instant Checkmate next contends that Fischer and Lukis are subject to unique defenses.  
Doc. 167 at 24-25.  “The presence of even an arguable defense peculiar to the named plaintiff … 
may destroy the required typicality of the class as well as bring into question the adequacy of the 
named plaintiff’s representation.”  CE Design Ltd. v. King Architectural Metals, Inc., 

637 F.3d 721, 726

 (7th Cir. 2011).  But neither defense asserted by Instant Checkmate defeats adequacy. 
    As to Fischer, Instant Checkmate contends that “because he is at least a limited purpose 
public figure,” he “cannot maintain an IRPA claim.”  Doc. 167 at 24-25.  Even if Fischer were a 

limited purpose public figure, but see 542 F. Supp. 3d at 841 (“Plaintiffs are not public figures 
… .”), that argument fails.  At common law, a public figure’s right of publicity claim turned on 
how the defendant used the public figure’s identity.  See Jackson v. MPI Home Video, 

694 F. Supp. 483, 492

 (N.D. Ill. 1988) (explaining that “[p]ublic figures possess this right with 
respect to commercial use of their names and likeness,” but not “against the use of name and 
likeness in the news media”); see also McFarland v. Miller, 

14 F.3d 912, 918

 (3d Cir. 1994) 
(“The right of publicity signifies the right of an individual, especially a public figure or a 
celebrity, to control the commercial value and exploitation of his name and picture or likeness 
… .”) (emphasis added) (internal quotations marks and alteration omitted).  Reflecting that 
understanding, the IRPA does not carve out a per se exception to liability for the use of a public 

figure’s identity; rather, it exempts only the “use of an individual’s identity for non-commercial 
purposes,” without differentiating between public and non-public figures.  765 ILCS 
1075/35(b)(2); see Lukis v. Whitepages Inc., 

549 F. Supp. 3d 798

, 805 (N.D. Ill. 2021) (noting 
“the continuity between the common law and the IRPA”).  Accordingly, Fischer’s purported 
status as a public figure does not bar Instant Checkmate’s liability.  Rather, liability will turn on 
how Instant Checkmate’s used Fischer’s (and Lukis’s and the other putative class members’) 
identities and whether that use falls within any statutory exemption.     
    As to Lukis, Instant Checkmate contends that she may be subject to a statute of 
limitations defense because she waited nearly five years after searching for herself (thereby 
triggering her inclusion in the SEO Directory) to bring her claim.  Doc. 167 at 25.  Whether the 
IRPA statute of limitations is one year or five years is an open question, but “[t]he weight of 
authority from this District supports the application of a one-year statute of limitations.”  Lopez 
v. Admiral Theatre, Inc., 

2019 WL 4735438

, at *2 (N.D. Ill. Sept. 26, 2019); see Tims v. Black 

Horse Carriers, Inc., __ N.E.3d __, 

2021 IL App (1st) 200563, at ¶ 21

 (Ill. App. Sept. 17, 2021) 
(observing that a one-year limitations period “applies to … [claims alleging] the appropriation of 
the name or likeness of another”), appeal allowed, 

2022 WL 808656

 (Ill. Jan. 26, 2022).  
Because Instant Checkmate’s limitations defense is at least arguable as to Lukis—and potentially 
relevant to many putative class members’ claims—the court, as Plaintiffs propose, Doc. 177 at 
28, will certify two subclasses, one for class members satisfying a one-year statute of limitations, 
and the other for those satisfying only a five-year statute of limitations.  See Fed. R. Civ. 
P. 23(c)(5); Phillips v. Asset Acceptance, LLC, 

736 F.3d 1076, 1081

 (7th Cir. 2013) (endorsing 
the use of subclasses to solve typicality or adequacy problems arising from potential statute of 
limitations issues); Boyd v. Meriter Health Servs. Emp. Ret. Plan, 

2012 WL 12995302

, at *11 

(W.D. Wis. Feb. 17, 2012) (“[T]he use of subclasses is well-established to address a statute of 
limitations defense … .”), aff’d, 

702 F.3d 364

 (7th Cir. 2012).  Fischer may serve as the class 
representative for the one-year subclass—as Instant Checkmate does not suggest that his claim is 
time barred, even if the one-year statute of limitations applies—and Lukis can serve as the 
representative of the five-year subclass.                                 
    D.   Idiosyncratic Grievances                                        
    Instant Checkmate next asserts that Fischer and Lukis have idiosyncratic motivations for 
prosecuting this suit.  Doc. 167 at 25-26.  That assertion, even if correct, is immaterial to 
typicality and adequacy.  “As a general matter, a plaintiff’s claim is typical if it arises from the 
same event or practice or course of conduct that gives rise to the claims of other class members 
and his or her claims are based on the same legal theory.”  Howard v. Cook Cnty. Sheriff’s Off., 

989 F.3d 587

, 605 (7th Cir. 2021) (internal quotation marks and alteration omitted).  Put another 
way, “typicality under Rule 23(a)(3) should be determined with reference to the company’s 
actions.”  CE Design, 

637 F.3d at 725

; see Rosario v. Livaditis, 

963 F.2d 1013, 1018

 (7th Cir. 

1992) (“[W]e look to the defendant’s conduct and the plaintiff’s legal theory to satisfy Rule 
23(a)(3).”).  The putative class members’ claims arise from the very course of conduct alleged to 
have injured Fischer and Lukis, and the legal theories underlying all class members’ claims are 
identical.  Plaintiffs’ purportedly idiosyncratic motivations therefore have no bearing on 
typicality, and there is no basis to hold any differently as to adequacy.  See CE Design, 

637 F.3d at 724

 (“In many cases, … the requirement of typicality merges with the further requirement that 
the class representative ‘will fairly and adequately protect the interests of the class.’”) (quoting 
Fed. R. Civ. P. 23(a)(4)).                                                
    E.   Lukis’s Credibility                                             
    Finally, Instant Checkmate argues that Lukis has “serious credibility problems” that 
undermine her adequacy as a class representative.  Doc. 167 at 26.  Although Lukis may face 

substantial challenges to her credibility at trial, “any weaknesses in [her] integrity [do] not relate 
to a central element of the litigation.”  Lacy, 

897 F.3d at 867

.  The jury’s assessment of whether 
Instant Checkmate appropriated Lukis’s identity, without her consent, for its commercial benefit 
is highly unlikely to turn on the credibility of her testimony.  Accordingly, Instant Checkmate 
has failed to present “compelling evidence that [Lukis’s] credibility would detract from the 
adjudication of the class-wide claims,” which means that her alleged credibility problems do not 
defeat her adequacy as a class representative.  

Ibid.

                     
II.  Rule 23(b)                                                           
    Next, the parties contest whether the proposed classes satisfy Rules 23(b)(2) (as to the 
Injunctive Relief Class) and (b)(3) (as to the Search Results and SEO Directory Classes).  
Rule 23(b)(2) requires that the class be cohesive and that an injunction be “appropriate 
respecting the class as a whole,” while Rule 23(b)(3) requires finding that common questions 

“predominate” over individual questions and that a class action is “superior” to other forms of 
adjudication.  Fed. R. Civ. P. 23(b)(2), (3); see Howard, 989 F.3d at 597 (“Where, as here, 
plaintiffs seek certification under Rule 23(b)(3), a court must find that common questions of law 
or fact ‘predominate’ over individual ones and that a class action is ‘superior’ to other methods 
of adjudicating the case.”); Kartman, 

634 F.3d at 893

 n.8 (“Where a class is not cohesive such 
that a uniform remedy will not redress the injuries of all plaintiffs, class certification [under 
Rule 23(b)(2)] is typically not appropriate.”).  Because the parties treat Rule 23(b)(2) cohesion 
and Rule 23(b)(3) predominance interchangeably, Doc. 167 at 16; Doc. 177 at 9, the court will 
do so as well.                                                            
    “The guiding principle behind predominance is whether the proposed class’s claims arise 

from a common nucleus of operative facts and issues.”  Beaton, 

907 F.3d at 1029

.  That analysis 
“begins, of course, with the elements of the underlying cause of action.”  Erica P. John Fund, 
Inc. v. Halliburton Co., 

563 U.S. 804

, 809 (2011).  The “substantive elements of an IRPA claim” 
are “(1) the appropriation of one’s identity, (2) without one’s consent, (3) for another’s 
commercial benefit.”  Dancel v. Groupon, Inc., 

949 F.3d 999

, 1008 (7th Cir. 2019).  At least the 
first and third elements present common questions.  Whether Instant Checkmate’s use and 
display of putative class members’ attributes appropriates their identities for its own commercial 
benefit turns on how the company uses and displays its search results and SEO Directory, not 
any circumstances particular to a class member.  Resolution of those elements will turn on 
common proof regarding Instant Checkmate’s website and business practices.  See Tyson Foods, 
Inc. v. Bouaphakeo, 

577 U.S. 442

, 453 (2016) (“[A] common question is one where the same 
evidence will suffice for each member to make a prima facie showing or the issue is susceptible 
to generalized, class-wide proof.”) (internal quotation marks and alteration omitted).  And 

contrary to Instant Checkmate’s arguments, which are addressed below, those common questions 
predominate over any remaining individual questions.                      
    A.   Common Proof for the Identity Element                           
    Instant Checkmate argues that Dancel categorically forecloses class certification in IRPA 
cases.  Doc. 167 at 17-19.  In Dancel, the Seventh Circuit affirmed the district court’s denial of 
class certification in a suit alleging that the defendant’s commercial use of the plaintiff’s 
Instagram username violated the IRPA, reasoning that the question whether a particular 
username identified a particular person, and thus whether a username is part of “an individual’s 
identity” for IRPA purposes, 765 ILCS 1075/30(a), could not be established with common proof 
on a classwide basis.  Dancel, 949 F.3d at 1009.  As the Seventh Circuit explained, because 
“Instagram usernames identify only Instagram accounts,” whether a username identifies (or, 

conversely, obscures) the identity of a particular user can be answered only on an individual 
basis based on the username’s content.  Id. at 1008-09.  Thus, common proof that usernames are 
unique would not show that each username identifies the user to whom the username belonged—
so, for example, whether the username “meowchristine” identified a particular person might 
yield an answer different from whether the usernames “isa.tdg,” “artistbarbie,” or “loparse” did 
so.  Id. at 1010.  That made the IRPA’s identity element an individual question rather than a 
common question—let alone a predominating common question—thereby defeating class 
certification under Rule 23(b)(3).  Ibid.; see Tyson Foods, 577 U.S. at 453 (“An individual 
question is one where members of a proposed class will need to present evidence that varies from 
member to member … .”).                                                   
    Dancel is inapposite here because the array of personal attributes used on Instant 
Checkmate’s website—name, age, location(s), and possible relative(s)—is easily distinguishable 

from Instagram usernames.  The Dancel plaintiff’s proposed common proof, “that usernames are 
unique,” failed to answer “[w]hether the appropriated attribute serves to identify a particular 
person”—that is, whether a username constitutes an individual’s “identity” for IRPA purposes.  
Id. at 1009.  Here, although a user’s search for a name and location on Instant Checkmate’s 
website will sometimes produce multiple resulting entries with similar names, the search results 
page directs the user to “[f]ind a result that matches whom you’re looking for the most” based on 
the displayed attributes.  Doc. 167-2 at ¶¶ 22-23.  Thus, Instant Checkmate displays name, age, 
location(s), and relative(s) on the search results page precisely because those attributes allow a 
user to identify the particular person for whom the user is searching.  So, a reasonable jury could 
find, as a categorical matter, that a search result displaying a name, age, location(s), and 

relative(s) “serves to identify that individual to an ordinary, reasonable viewer” for IRPA 
purposes.  765 ILCS 1075/5; see 454 F. Supp. 3d at 761 (explaining that Instant Checkmate’s 
combination of these attributes makes unique identification plausible).  Similarly, a jury could 
find that Instant Checkmate includes those attributes in the SEO Directory to allow unique 
identification in search engine results, thereby driving traffic to Instant Checkmate’s website.   
    B.   Possible Individual Questions                                   
    Instant Checkmate next contends that an array of individual questions pertaining to each 
putative class member’s claim undermine predominance.  “Neither Rule 23 nor any gloss that 
decided cases have added to it requires that every question be common.”  Suchanek v. Sturm 
Foods, Inc., 

764 F.3d 750, 756

 (7th Cir. 2014).  Rather, “[t]he predominance inquiry asks 
whether the common, aggregation-enabling, issues in the case are more prevalent or important 
than the non-common, aggregation-defeating, individual issues.”  Tyson Foods, 577 U.S. at 453 
(internal quotation marks omitted).                                       
         1.   Consent to Instant Checkmate’s Use of Identity             

    Instant Checkmate first contends that individual questions about putative class members’ 
consent to its use of their identities are likely to predominate.  Doc. 167 at 19-21.  Instant 
Checkmate submits that putative class members could have consented either (1) under the Terms 
of Use by conducting a self-search after November 13, 2020, or (2) by consenting to data sharing 
by unidentified non-parties.  Ibid.  Those questions are unlikely to distract from the central focus 
of the litigation and thus do not defeat predominance (or cohesion).      
    As to putative class members who conducted a self-search after November 13, 2020, 
questions about the validity or effect of the Terms of Use’s new consent provision can be 
resolved in a single stroke.  See Toney v. Quality Res., Inc., 

323 F.R.D. 567

, 587 (N.D. Ill. 2018) 
(“[I]f the defendant obtained the class members’ consent for calls in a uniform manner, consent 

can be resolved on a class-wide basis.”).  If it becomes necessary to do so, the court could create 
a subclass to specifically address the validity of the consent provision for those putative class 
members.  See Fed. R. Civ. P. 23(c)(1)(C), (c)(5).  If the consent provision is found valid, 
individual questions will remain about which putative class members conducted a self-search 
after November 13, 2020, but that straightforward question would not predominate over the more 
important, common questions at stake.  See Parko v. Shell Oil Co., 

739 F.3d 1083, 1085

 (7th Cir. 
2014) (“Predominance … is not determined simply by counting noses: that is, determining 
whether there are more common issues or more individual issues, regardless of relative 
importance.”).  Rather, that question could be easily and mechanically resolved during claims 
administration by consulting Instant Checkmate’s records.  See Messner, 

669 F.3d at 819

 
(holding that the availability of “common evidence and common methodology to prove a class’s 
claims is sufficient to support a finding of predominance”); Abdullah v. U.S. Sec. Assocs., Inc., 

731 F.3d 952, 966

 (9th Cir. 2013) (affirming a finding of predominance because liability and 

damages “would not be difficult to determine” from the defendant’s records). 
    As for consenting to data sharing by non-parties, Instant Checkmate admits in an 
interrogatory response that its Terms of Use is the sole method by which it received consent from 
Illinois residents to advertise the availability of their background reports on its website.  
Doc. 151-2 at p. 2, ¶ 6 (“Apart from the Terms of Use … , do you [Instant Checkmate] maintain 
that you received consent from any Illinois resident to advertise the availability for their 
background report on your website? … No.”).  Accordingly, whatever consent a putative class 
member gave to a non-party to use or share her identity has no bearing on whether that putative 
class member consented to Instant Checkmate’s use of her identity.        
         2.   Public Figures                                             

    Next, Instant Checkmate contends that determining whether each putative class member 
is a public figure will pose a fact-intensive inquiry predominating over common questions.  
Doc. 167 at 21-22.  As shown above, IRPA liability does not turn on whether a plaintiff or 
putative class member is a public figure.  It follows that individual questions concerning whether 
a putative class member qualifies a public figure are not even pertinent, let alone predominant. 
         3.   Agreement to Arbitrate                                     
    Finally, Instant Checkmate contends that the need to identify putative class members 
subject to binding arbitration will predominate over common questions.  Doc. 167 at 22-23.  That 
argument is unpersuasive for three reasons.  First, Instant Checkmate “did not provide sufficient 
particularized evidence regarding potential class members who may be subject to arbitration.”  
Jamison v. First Credit Servs., Inc., 

290 F.R.D. 92

, 107 n.7 (N.D. Ill. 2013); see Kleen Prods. 
LLC v. Int’l Paper Co., 

831 F.3d 919, 930

 (7th Cir. 2016) (noting that a “smattering of individual 
contract defenses,” including “mandatory arbitration … clauses,” “does not undermine the 

superiority of the (b)(3) class action”).  Second, if there are absent class members who agreed to 
arbitrate their disputes with Instant Checkmate pursuant to the Terms of Use, Instant Checkmate 
could, if it wishes, move to compel arbitration as to those individuals after class certification 
without fear that its litigation conduct will have waived its rights those arbitration agreements.  
See Garcia v. JCPenney Corp., Inc., 

2016 WL 878203

, at *7 & n.4 (N.D. Ill. 2016) (“[T]he 
sensible course in this case is to decide whether to certify the class without considering the 
possibility of arbitration and then allow JCPenney, if it so chooses, to file its motion to compel 
arbitration.”).  Third, like the question of consent, any question about which class members 
agreed to arbitration could be mechanically resolved by consulting Instant Checkmate’s records. 
    C.   Definitional Overbreadth                                        
    Next, Instant Checkmate contends that the damages classes “‘are defined too broadly to 

permit certification’ because they include ‘a great many persons’ who ‘could not bring a valid 
[IRPA] claim.’”  Doc. 167 at 26 (alteration in original) (quoting Messner, 

669 F.3d at 824-25

).  
Class certification does not depend on how many class members have meritorious IRPA claims.  
See Messner, 

669 F.3d at 823

 (“[T]hat some class members’ claims will fail on the merits if and 
when damages are decided … [is] a fact generally irrelevant to the district court’s decision on 
class certification.”); Schleicher v. Wendt, 

618 F.3d 679, 686

 (7th Cir. 2010) (“Rule 23 allows 
certification of classes that are fated to lose as well as classes that are sure to win.”).  That said, 
the inclusion in a class of too many members who “could not have been injured” is pertinent to 
definitional overbreadth.  Suchanek, 

764 F.3d at 758

.  Instant Checkmate’s arguments on this 
issue do not withstand scrutiny.                                          
         1.   Display to Others                                          
    First, Instant Checkmate argues that the damages class definitions sweep in individuals 

“whose identity was not displayed to a third party.”  Doc. 167 at 28.  According to Instant 
Checkmate, this is a problem because “each putative class member’s search result or SEO 
Directory profile must have been displayed to someone other than themselves for to show a 
prima facie IRPA claim.”  

Ibid.

  Under this reading of the IRPA, some putative class members 
could not have been injured because they cannot prove third-party display. 
    Instant Checkmate’s reading of the IRPA is wrong.  As noted, the IRPA prohibits 
“us[ing] an individual’s identity for commercial purposes … without having obtained previous 
written consent.”  765 ILCS 1075/30(a).  “Commercial purpose” is defined as either “the public 
use or holding out” of an individual’s identity.  765 ILCS 1075/5 (emphasis added). 
    The term “public use” in the IRPA means that some substantial number of people saw or 

were exposed to a person’s identity.  Illustrating the point, Trannel v. Prairie Ridge Media, Inc., 

987 N.E.2d 923

 (Ill. App. 2013), held that a photograph of the plaintiff seen by at most 31 
persons or entities in a county of some 300,000 people was not “disseminated to the public,” and 
therefore did not qualify as “public use.”  

Id. at 929

; see also MetLife Invs. USA Ins. Co. v. 
Zeidman, 

734 F. Supp. 2d 304, 311-12

 (E.D.N.Y. 2010) (in finding no “public use,” reasoning 
that the plaintiff’s identity “was [n]ever allegedly published or otherwise made accessible to the 
public”), aff’d sub nom. MetLife Invs. USA Ins. Co. v. Pratt, 

442 F. App’x 589

 (2d Cir. 2011).  
At the same time, Trannel made clear that because “‘[h]olding out’ … must mean something 
other than ‘public use,’” the term “holding out” does not require that the individual’s identity 
was seen by others.  

987 N.E.2d at 930

.  Rather, Trannel explained, “holding out … mean[s] the 
representation … of an individual’s identity on or in conjunction with certain activities,” and 
thus turns on the defendant’s conduct, not on what the public perceived.  

Ibid.

  Trannel therefore 
concluded that an advertiser held out the plaintiff’s identity by “deliberately placing” her 

photograph on a commercial product.  

Ibid.

                                
    Accordingly, how many (if any) Instant Checkmate users saw a putative class member’s 
search result or SEO Directory profile is immaterial to whether Instant Checkmate violated the 
IRPA by holding out that person’s identity in connection with the offering for sale of its services.  
It follows that the putative classes could not be overbroad for including persons whose search 
results or SEO Directory profiles were never viewed by somebody else.     
         2.   Extraterritorial Application                               
    Second, Instant Checkmate contends that the damages class definitions “are 
overinclusive” because “they fail to limit membership to identities displayed in Illinois.”  
Doc. 167 at 29.  As the parties appear to agree, the IRPA does not extend extraterritorially.  Id. at 

28; Doc. 177 at 17-20.  That poses no problem, however, because the proposed classes do not 
require extraterritorial application of the IRPA.                         
     The Supreme Court of Illinois has declined to adopt any “single formula or bright-line 
test” for determining whether a statutory violation occurs in Illinois.  Avery v. State Farm Mut. 
Auto. Ins. Co., 

835 N.E.2d 801, 854

 (Ill. 2005).  Instead, a court must analyze whether the 
circumstances relating to the legal dispute “occur primarily and substantially” within Illinois.  

Id. at 853

.  Circumstances will vary, but Avery directs courts to consider: the plaintiff’s residence; 
the location of harm; communications between parties (where sent and where received); and 
where the defendant’s policy is carried out.  See 

id. at 854

.             
    Here, the bulk of those circumstances relate to Illinois.  The putative classes, by 
definition, are limited to Illinois residents.  Doc. 151 at 10-11.  If Instant Checkmate 
appropriated a putative class member’s identity, then that person lost control over the 
commercial exploitation of her identity in Illinois.  If Instant Checkmate received consent from a 

putative class member, that consent presumably was sent from Illinois.  Instant Checkmate’s 
policy of displaying profiles was carried out on its website, and thereby occurred nationally and 
thus necessarily in Illinois.  Cf. Specht v. Google, Inc., 

660 F. Supp. 2d 858, 866

 (N.D. Ill. 2009) 
(“The alleged infringement took place on the Internet and was international in scope, presumably 
occurring in Illinois.”).  Accordingly, under the totality of the circumstances, adjudicating 
putative class members’ claims would not involve extraterritorial application of the IRPA.  See 
Patel v. Facebook, Inc., 

932 F.3d 1264

, 1276 & n.7 (9th Cir. 2019) (explaining that a statute’s 
“application to individuals who are located in Illinois, even if some relevant activities occur 
outside the state,” is not extraterritorial).                             
    Pressing the contrary result, Instant Checkmate focuses on where its users viewed the 

putative class members’ profiles.  Doc. 167 at 29.  True enough, “[web]site access … might be 
part of the Avery calculus.”  Rivera v. Google Inc., 

238 F. Supp. 3d 1088, 1101

 (N.D. Ill. 2017).  
Given the countervailing factors referenced above, however, “focusing solely” on that one factor 
would “create questionable results,” Avery, 

835 N.E.2d at 853

, particularly because, as shown 
above, third-party viewing is not an element of an IRPA claim.            
    In sum, the putative classes are defined in a way that requires the IRPA to be applied only 
in Illinois.  “And of course, if future decisions or circumstances lead to the conclusion that 
extraterritoriality must be evaluated on an individual basis, the … court can decertify the class.”  
Patel, 

932 F.3d at 1276

.                                                  
         3.   Commercial Purpose                                         
    Third, Instant Checkmate contends that the class definitions are overbroad because “a 
potential class member could not have a viable IRPA claim unless the [Instant Checkmate] user 
searching for that member viewed the website’s registration page.”  Doc. 167 at 30.  This is so, 

according to Instant Checkmate, because only the registration page offers to sell a membership.  

Ibid.

  That argument fails.                                               
    Suppose a company used an individual’s identity in a print advertisement, without that 
individual’s consent, directing viewers to the company’s website or store.  That use would have a 
“commercial purpose,” regardless of how many people ultimately entered the store or interacted 
with the website, because the company “held out” that individual’s identity.  See Trannel, 

987 N.E.2d at 930

 (holding that the IRPA prohibits the “representation” of a person’s identity in 
connection with “an offering for the sale of a product, merchandise, goods, or services”).  So, 
too, here.  As shown above, how many viewers proceeded to the registration page after seeing a 
putative class member’s profile is immaterial under the IRPA because the statute does not 

impose a viewership requirement.  Rather, the pertinent liability issues are whether Instant 
Checkmate held out a putative class member’s identity to sell subscriptions, and whether such 
use served a commercial purpose.  It follows that a putative class member may recover 
regardless of whether any user ultimately viewed the website’s registration page after searching 
for that putative class member.                                           
    D.   Superiority and Manageability                                   
    Instant Checkmate argues that the two proposed damages classes do not satisfy the 
superiority and manageability requirements of Rule 23(b)(3).  Doc. 167 at 31; see Mullins, 

795 F.3d at 663

 (noting that superiority encompasses “the likely difficulties in managing a class 
action’”) (quoting Fed. R. Civ. P. 23(b)(3)(D)).  Instant Checkmate is correct as to the Search 
Results Class, but not the SEO Directory Class.                           
         1.   Search Results Class                                       
    As noted, the proposed Search Results Class is defined in relevant part as Illinois 

residents for whom “a Search Result was listed on the Website … that included their name, age, 
location(s), and relative(s)” and that “was actually selected by a user of the Website.”  Doc. 151 
at 10.  Instant Checkmate contends that because it cannot be determined from its records which 
persons’ search results were “actually selected by a user of the Website,” it is impossible to 
discern who is in the Search Results Class.  Doc. 167 at 34-35.  As Instant Checkmate shows, it 
“does not store the information that was displayed in the selected search result” and “cannot 
recreate the information that was displayed in a specific selected search result.”  Doc. 167-16 at 
¶ 7.  According to Instant Checkmate, the unique identifier, or record pointer, that it stores for 
each search selection “does not contain any of the information that was displayed in the search 
result to the [Instant Checkmate] user.”  Id. at ¶¶ 14-15.                

    Plaintiffs do not dispute those points, and therefore must provide a workable solution.  
See Mullins, 

795 F.3d at 664

 (“If faced with what appear to be unusually difficult manageability 
problems at the certification stage, district courts have discretion to insist on details of the 
plaintiff’s plan for … managing the action.”).  To overcome the lack of records showing which 
persons’ search results were selected by an Instant Checkmate user, Plaintiffs propose working 
backwards from the record pointers stored by Instant Checkmate.  Doc. 174 at 23.  Specifically, 
Plaintiffs submit that, for each record pointer, Instant Checkmate can query its data provider for 
the background report on the associated person.  

Ibid.

  Then, using those background reports, 
putative class members’ names and other identifying information can be reconstructed.  

Ibid.

 
    Plaintiffs’ proposal is not workable.  Instant Checkmate’s background reports are not 
static, as “the data provider’s data are constantly changing or being updated.”  Doc. 167-16 at 
¶ 9.  As a result, the current version of a background report may list attributes for the selected 
individual different from those displayed when that individual’s search result was viewed in the 

past.  Thus, a background report generated today for Jane Doe might display certain name(s), 
age(s), location(s), or relative(s) that were not displayed when her profile previously was viewed 
by an Instant Checkmate user.  The proposed class definition, however, requires that the class 
member’s search result listing had all of those attributes when it was selected by a user.  
Doc. 151 at 10 (defining the proposed class as encompassing individuals whose selected search 
result “included” their name, age, location(s), and possible relative(s)).  As a result, there is a 
mismatch between Plaintiffs’ methodology—which can demonstrate only that a putative class 
member’s search result has an associated name, age, location(s), and relative(s) today—and the 
class definition—which requires those attributes to have been used in the past.  Plaintiffs 
therefore fail to show that the Search Results Class meets the superiority requirement of 

Rule 23(b)(3).                                                            
         2.   SEO Directory Class                                        
    As noted, the putative SEO Directory Class is defined in relevant part as: “Illinois 
residents who were listed in the SEO Directory on or since the date of filing of the complaint and 
continuing to the date of class certification, where such listing included that person’s name, age, 
location(s), and relative(s).”  Doc. 151 at 11.  Because the SEO Directory does not indicate 
where a person currently lives, Instant Checkmate contends that the putative class is 
unmanageable given the difficulties of determining whether any particular putative class member 
resides in Illinois.  Doc. 167 at 32.  That objection fails, as affidavits may be used to establish 
residency during the claims administration process if the class prevails at trial.  See Dancel, 949 
F.3d at 1009-10 (“We have permitted district courts, in their discretion, to use individual 
affidavits to identify class members after liability is established class-wide, or to resolve 
individual merits questions after resolution of class issues.”) (citations omitted). 

    Instant Checkmate next contends that, in general, it cannot “determine whether a specific 
individual’s profile was actually displayed to any user,” let alone to a user in Illinois.  Doc. 167 
at 32 (emphasis deleted).  That objection fails as well because, as shown above, Plaintiffs’ claims 
do not require any third-party display, much less third-party display in Illinois.  The same 
rationale defeats Instant Checkmate’s argument that there is no way to determine whether a 
putative class member’s information was displayed to a user who eventually reached the 
registration page.  Id. at 34.                                            
         3.   Statutory Damages and Attorney Fees                        
    Instant Checkmate next contends that the ability of prevailing IRPA plaintiffs to recover 
statutory damages and attorney fees undermines superiority.  Id. at 36.  That argument fails, as 

statutory damages under the IRPA are only $1,000, see 765 ILCS 1075/40(a)(2); Trannel, 

987 N.E.2d at 933

, and recovering “up to $1,000 in statutory damages … is unlikely to provide 
sufficient incentive for individual members to bring their own claims.”  Pawelczak v. Fin. 
Recovery Servs., Inc., 

286 F.R.D. 381, 387

 (N.D. Ill. 2012); accord Redmon v. Uncle Julio’s of 
Ill., Inc., 

249 F.R.D. 290, 296

 (N.D. Ill. 2008) (“With statutory damages maxing out at $1,000, 
… individual plaintiffs do not have sufficient incentives to litigate independently.  This is 
precisely the situation Rule 23(b)(3) was designed to overcome.”) (citing Murray v. GMAC 
Mortg. Corp., 

434 F.3d 948, 953

 (7th Cir. 2006)); cf. Andrews v. Chevy Chase Bank, 

545 F.3d 570, 577

 (7th Cir. 2008) (holding that a class action was not superior when a typical prevailing 
plaintiff “can expect to receive over $50,000, plus attorney’s fees and costs”).  The availability of 
attorney fees for prevailing plaintiffs, see 765 ILCS 1075/55, does not undermine this 
conclusion.  See In re Cmty. Bank of N. Va. Mortg. Lending Pracs. Litig., 

795 F.3d 380, 409

 
(3d Cir. 2015) (rejecting the argument that superiority was not satisfied “because [the putative 

class members] are pursuing statutory claims that permit recovery of their attorneys’ fees”); 
Herket v. MRC Receivables Corp., 

254 F.R.D. 344, 353

 (N.D. Ill. 2008) (finding a class action 
superior even though “actual damages, statutory damages and attorneys’ fees are awarded to 
successful [Fair Debt Collection Practices Act] litigants”); Thomas v. Cap. One Auto Fin., Inc., 

2006 WL 3065498

, at *5 (N.D. Ill. 2006) (same, in a Fair Credit Reporting Act suit). 
    In sum, a class action is the superior method of adjudication for the SEO Directory Class.   
    E.   Appropriateness of Equitable Relief                             
    As noted, the putative Injunctive Relief Class is defined as: Illinois residents for whom 
Instant Checkmate “can generate a name, age, and one or more location(s) and relative(s)” in 
“either the SEO Directory or the Search Results of the Website.”  Doc. 151 at 10.  Plaintiffs seek 
an injunction forbidding Instant Checkmate from using class members’ names and attributes to 

advertise its products and services.  Doc. 109 at ¶¶ 58, 61; see 765 ILCS 1075/50 (authorizing 
“permanent injunctions as may be appropriate” to cure IRPA violations).   
    In opposing certification of the Injunctive Relief Class, Instant Checkmate contends that 
“Plaintiffs ‘cannot satisfy the test for a remedy in equity.’”  Doc. 167 at 36 (quoting Kartman, 

634 F.3d at 892

).  To obtain an injunction, a “plaintiff must demonstrate: (1) that it has suffered 
an irreparable injury; (2) that remedies available at law, such as monetary damages, are 
inadequate to compensate for that injury; (3) that, considering the balance of hardships between 
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest 
would not be disserved by a permanent injunction.”  eBay v. MercExchange, L.L.C., 

547 U.S. 388

, 391 (2006).  And for a Rule 23(b)(2) class to be certified, “[t]he contemplated equitable 
relief must be (1) appropriate respecting the class as a whole and (2) final.”  Kartman, 

634 F.3d at 892

 (internal quotation marks omitted).                                
    Noting that it allows persons to opt out of the SEO Directory, Instant Checkmate argues 

that injunctive relief is not appropriate for the Injunctive Relief Class as a whole because a 
putative class member’s failure to opt out means that they are suffering a self-inflicted injury, 
thereby precluding them from obtaining injunctive relief.  Doc. 167 at 36-37.  “Only the injury 
inflicted by one’s adversary counts” as irreparable harm for purposes of obtaining injunctive 
relief.  Second City Music, Inc. v. City of Chicago, 

333 F.3d 846, 850

 (7th Cir. 2003).  Although 
a “readily avoidable” harm may in some circumstances be self-inflicted, the pertinent inquiry 
“depends on the particular circumstances of the case,” and a plaintiff must have a “true choice” 
for a readily avoidable harm to qualify as a self-inflicted harm.  Stuller, Inc. v. Steak N Shake 
Enters., Inc., 

695 F.3d 676, 679

 (7th Cir. 2012).  Here, there is no indication that a significant 
number of class members know about the opt-out function, and even if they did, it is not clear 

that opting out is an appropriate substitute for an injunction because Instant Checkmate cannot 
rule out the possibility that a new record could be generated after a class member opts out of the 
SEO directory.  Doc. 148-6 at 6 (20:15-20:24) (Instant Checkmate’s Rule 30(b)(6) deponent did 
not know whether a new record could be created for individuals who previously opted out); see 
Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 

858 F.3d 1034

 
(7th Cir. 2017) (explaining that irreparable harm is not “self-inflicted” when available alternative 
choices fail to mitigate the claimed harm), abrogation on other grounds recognized in Ill. Repub. 
Party v. Pritzker, 

973 F.3d 760

, 762 (7th Cir. 2020).  At this stage, then, the opt-out option does 
not defeat certification of a Rule 23(b)(2) class, though Instant Checkmate may reprise this 
argument in opposing injunctive relief on the merits at trial.            
    Instant Checkmate next argues that Plaintiffs have failed to show that money damages are 
inadequate to compensate for any injuries that they and the putative class have suffered.  

Doc. 167 at 37.  This argument conflates “two distinct injuries: past and future” appropriation of 
the putative class members’ identities.  Kartman, 

634 F.3d at 894

 (citing Allen v. Int’l Truck & 
Engine Corp., 

358 F.3d 469

 (7th Cir. 2004)).  The members of the SEO Directory Class have 
allegedly “already suffered” misappropriation of their identities, and “damages would provide a 
final retrospective remedy for that injury.”  

Ibid.

  By contrast, an injunction would “provid[e] a 
final prospective remedy for ongoing and future” IRPA violations.  

Ibid.

  The availability of 
monetary damages for the SEO Directory Class therefore does not preclude injunctive relief.   
    As to the balance of hardships, Instant Checkmate asserts, without any evidence, that it 
“would be unable to implement Plaintiffs’ requested class injunctive relief without being forced 
to shut down its entire website in states in which there is no reason to do so because it is not 

possible for [Instant Checkmate] to determine the residency of any individual” listed on its site.  
Doc. 167 at 37.  But even if Instant Checkmate’s current records do not allow it to determine 
which persons are Illinois residents, it may be able to access and cross-reference other records to 
determine residency.  Failing that, Instant Checkmate could choose to comply with an injunction 
by suppressing the records of any individual associated with an Illinois address regardless of the 
person’s current residency.  At this stage, the court cannot say that this burden on Instant 
Checkmate would outweigh by the irreparable harm to the class caused by misappropriation of 
the putative class members’ identities.  Again, Instant Checkmate may reprise this argument in 
opposing injunctive relief on the merits at trial.                        
    Finally, Instant Checkmate contends that the public interest would be disserved by an 
injunction because “online marketplaces that many people rely on … display the same type of 
search results that Plaintiffs have identified as ‘advertisements’ under IRPA.”  Doc. 167 at 37.  
That conclusory assertion—unsupported by any record citation—does not persuade.  An 

injunction would bind only Instant Checkmate, its “officers, agents, servants, employees, and 
attorneys,” and “persons who are in active concert or participation” with any of those persons.  
Fed. R. Civ. P. 65(d)(2).  In any event, “[n]o social purpose is served by having the defendant get 
free some aspect of the plaintiff that would have market value and for which he would normally 
pay.”  Zacchini v. Scripps-Howard Broad. Co., 

433 U.S. 562, 576

 (1977) (citation omitted).  
    Accordingly, at least on the present record, the injunction sought by Plaintiffs is 
appropriate as to the Injunctive Relief Class as a whole, and that class may be certified under 
Rule 23(b)(2).                                                            
                           Conclusion                                    
    Plaintiffs’ class certification motion is granted in part (as to the SEO Directory and 

Injunctive Relief Classes) and denied in part (as to the Search Results Class).  “An order that 
certifies a class action must define the class and the class claims, issues, or defenses, and must 
appoint class counsel under Rule 23(g).”  Fed. R. Civ. P. 23(c)(1)(B); see Chapman v. First 
Index, Inc., 

796 F.3d 783, 785

 (7th Cir. 2015) (“[T]he obligation to define the class falls on the 
[district] judge’s shoulders under [Rule 23(c)(1)(B)].”).                 
    The SEO Directory Class is defined as “All Illinois residents who were listed in Instant 
Checkmate’s SEO Directory on or since June 21, 2019 (the date this suit was filed) and 
continuing to March 31, 2022 (the date of class certification), where such listing included that 
person’s name, age, location(s), and relative(s), excluding anyone who has incurred actual 
damages as defined in IRPA.”  The Injunctive Relief Class is defined as “All Illinois residents 
for whom Instant Checkmate can generate a name, age, and one or more location(s) and 
relative(s) in either the SEO Directory or the Search Results of www.instantcheckmate.com.”  
    The SEO Directory Class has two subclasses.  The one-year statute of limitations 

subclass comprises members of the SEO Directory Class who were first listed in the SEO 
Directory between June 21, 2018 (one year before the filing of this suit) and March 31, 2022 (the 
date of class certification).  The five-year statute of limitations subclass comprises members of 
the SEO Directory Class who were first listed in the SEO Directory between June 21, 2014 (five 
years before the filing of this suit) and June 20, 2018.  Because the Injunctive Relief Class 
appears to allege ongoing or continuing IRPA violations, the court need not subdivide that class 
to address any statute of limitations defense.  See Scherr v. Marriott Int’l, Inc., 

703 F.3d 1069, 1076

 (7th Cir. 2013) (holding that a claim for injunctive relief against “ongoing” or “continuing” 
violations is not barred by the statute of limitations).  If further developments require subdividing 
the Injunctive Relief Class as well, the court will amend this certification order.  See Fed. R. Civ. 

P. 23(c)(1)(C) (“An order that grants or denies class certification may be altered or amended 
before final judgment.”).                                                 
    The claims, issues, and defenses to be tried are: (1) whether SEO Directory Class 
members’ listings in the SEO Directory violates the IRPA; (2) whether Instant Checkmate has a 
valid affirmative defense to any alleged IRPA violation; and (3) whether Injunctive Relief Class 
members are entitled to an injunction forbidding Instant Checkmate from using class members’ 
names and attributes to advertise its products and services.              
    Fischer and Lukis are the class representatives.  For the SEO Directory Class, Fischer 
represents the one-year statute of limitations subclass, and Lukis the five-year subclass.  Pursuant 
to Rule 23(g), the following class counsel are appointed: Roberto Luis Costales and William 
Henry Beaumont of Beaumont Costales; Ari  Jonathan Scharg, Benjamin Harris Richman, 
Benjamin Scott Thomassen, Michael W. Ovca, and Schuyler Ufkes of Edelson PC; and Philip 
Fraietta of Bursor & Fisher, P.A. 
     The parties shall confer regarding class notice and shall file a status report with their joint 
proposal or competing proposals by April 21, 2022. 

March 31, 2022 
                                               United States District Judge 

                                     33