Contract analysis

From: Rachel Bernstein <rbernstein@calderwoodharkness.com> To: Damien Northfield <dnorthfield@northfieldmckay.com> Date: Mon, 20 May 2024 11:47:00 -0000 Subject: Potential Referral — Government Transit Authority / BIPA Defense Matter

I hope you're well. I'm reaching out to give you a heads-up that a prospective client may be contacting your firm in the near term regarding a significant BIPA defense engagement. I've provided your name and Northfield McKay's contact information as recommended alternative counsel.

The prospective client is Metropolitan Transit Development Corp. ("MTDC"), a governmental transit authority organized under Illinois law, headquartered at 550 West Harrison Street, Suite 1400, Chicago, IL 60607. MTDC operates bus, commuter rail, and paratransit services across Cook County and the surrounding collar counties, serving approximately 1.6 million daily riders with an annual operating budget of roughly $3.

At a high level, MTDC is facing concurrent regulatory and civil proceedings arising from its deployment of a biometric workforce-management platform:

- On April 22, 2024, the Illinois Attorney General's Bureau of Civil Rights issued a Civil Investigative Demand to MTDC, alleging violations of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 *et seq.*, and the Illinois Personal Information Protection Act, 815 ILCS 530/1 *et seq.* The AG's office has designated outside special counsel — Ridgeway & Falk LLP (Diane Falk) — to assist with the enforcement p

- On April 29, 2024, a putative class action was filed in the Circuit Court of Cook County, Chancery Division, Case No. 2024-CH-04417, by approximately 12,400 current and former MTDC employees asserting BIPA violations and related state-law privacy and employment claims. Plaintiffs' class counsel is Kessler, Brandt & O'Neill LLP (Martin Kessler and Yolanda Brandt).

The anticipated scope of the engagement would include defense of the AG's CID and any resulting enforcement action; defense of the employee class action; advice on remediation of MTDC's biometric-data practices; potential cross-claims and indemnification proceedings against technology vendors; and related employment counseling regarding workforce-monitoring policies. Given the size of the putative class, the potentia

MTDC's existing outside litigation counsel is Hargrove, Tillman & Reese LLP (Constance Hargrove), which referred MTDC to our firm specifically for data-privacy and biometric-law expertise. Hargrove Tillman may continue to be involved in some capacity on the broader litigation.

Unfortunately, Calderwood & Harkness is unable to undertake this representation due to a conflict of interest. I'll leave it at that.

I recommended Northfield McKay based on your firm's well-regarded data-privacy litigation practice and your personal experience with BIPA defense matters. I should mention that I've also provided MTDC with one other referral option, so you may not be the sole firm they contact — just so you have that context.

Your firm will of course want to run its own conflicts check. For additional context on the client's resources, MTDC's annual outside-counsel budget across all matters is approximately $14.8 million, so this is a well-resourced government entity with the capacity to support a significant engagement.

I'm happy to provide any additional non-privileged background that might be helpful as you evaluate this. Please don't hesitate to reach out.

It's been too long since we've caught up — I hope we can find time for coffee or lunch one of these days.

--- **Rachel Bernstein** Partner, Data Privacy & Cybersecurity Calderwood & Harkness LLP One North Wacker Drive, Suite 4200 Chicago, IL 60606 Direct: (312) 554-7183 rbernstein@calderwoodharkness.com