CALDERWOOD & HARKNESS LLP Attorneys at Law
One North Wacker Drive, Suite 4200 Chicago, Illinois 60606 Tel: (312) 555-8400
Rachel Bernstein Partner, Privacy & Data Security Practice Direct: (312) 555-8437 rbernstein@calderwoodharkness.com
May 20, 2024
Terrence Whitfield, Esq. General Counsel Metropolitan Transit Development Corp. 550 West Harrison Street, Suite 1400 Chicago, IL 60607
Re: Recommended Alternative Counsel — BIPA Enforcement Defense and Related Employee Class Action (Illinois AG CID Ref. No. CRB-2024-0417; Circuit Court of Cook County Case No. 2024-CH-04417)
Via Email (twhitfield@mtdc.gov) and First-Class Mail
Dear Mr. Whitfield:
I write to follow up on our firm's declination letter dated May 17, 2024, in which Calderwood & Harkness LLP formally declined the proposed engagement identified as Matter No. 1031-00001 due to an unwaivable conflict of interest that precludes our representation of the Metropolitan Transit Development Corp. ("MTDC") in the above-referenced matters. As I indicated in that letter, while we are unable to undertake the representation ourselves, we are pleased to follow through on our offer to facilitate referrals to qualified alternative counsel possessing deep experience in the defense of enforcement proceedings and private litigation arising under the Illinois Biometric Information Privacy Act ("BIPA"), 740 ILCS 14/1 et seq. The purpose of this letter is to provide you with our recommendations regarding two such firms, both of which we believe are well-suited to assist MTDC in connection with the pending Civil Investigative Demand ("CID") issued by the Illinois Attorney General's Bureau of Civil Rights (Ref. No. CRB-2024-0417) and the putative employee class action filed in the Circuit Court of Cook County (Case No. 2024-CH-04417).
I recognize the urgency of MTDC's circumstances. The AG CID was issued on April 22, 2024, and the class action complaint was filed one week later on April 29, 2024. MTDC's need for experienced BIPA defense counsel is immediate, and any delay in engagement may compound the risks associated with these proceedings. As you know, MTDC's existing outside litigation counsel, Constance Hargrove at Hargrove, Tillman & Reese LLP, originally referred MTDC to Calderwood & Harkness specifically because of our firm's expertise in data-privacy law and biometric information compliance. I am confident that the two firms recommended below possess specialized capabilities that are comparable in scope and depth, and that either would be well-positioned to provide the comprehensive representation that these matters require.
Recommended Counsel — Option A: Aldridge, Paulson & Cho LLP
The first firm I recommend is Aldridge, Paulson & Cho LLP, located at 150 North Michigan Avenue, Suite 3500, Chicago, Illinois 60601. I recommend that you contact Victoria Aldridge, a Partner and the firm's BIPA Practice Lead, as the appropriate initial point of contact.
Aldridge, Paulson & Cho is a well-established Chicago-based firm with a dedicated biometric-privacy and data-protection litigation practice that has been handling BIPA matters since shortly after the statute's enactment. The firm has substantial experience defending BIPA enforcement actions brought by the Illinois Attorney General, including proceedings initiated through civil investigative demands, as well as private class actions brought under BIPA § 15. Notably, the firm's practitioners are deeply familiar with the intersection of workforce-management technology and biometric-data compliance — an area that is directly relevant to the factual circumstances underlying both the AG CID and the employee class action at issue here.
The scope of Aldridge, Paulson & Cho's relevant capabilities encompasses BIPA compliance counseling, defense of statutory enforcement proceedings initiated by the Attorney General's office, class-action defense in both the trial and appellate courts, data-remediation advisory services, and employment-related privacy litigation. The firm is well-equipped to handle both the AG CID defense and the defense of the putative employee class action pending in Cook County (Case No. 2024-CH-04417), and I understand that the firm has the capacity and resources to take on a matter of this nature and scope on the timeline that MTDC's situation requires.
Recommended Counsel — Option B: Northfield McKay LLP
The second firm I recommend is Northfield McKay LLP, located at 311 South Wacker Drive, Suite 4800, Chicago, Illinois 60606. I recommend that you contact Damien Northfield, a Partner and the firm's Data-Privacy Litigation Lead, as the appropriate initial point of contact.
Northfield McKay is a Chicago-based litigation firm with a strong and well-regarded data-privacy litigation practice. The firm has extensive experience defending BIPA claims across a range of industries and factual contexts, as well as matters arising under the Illinois Personal Information Protection Act ("PIPA"), 815 ILCS 530/1 et seq., and related state-law privacy claims. The firm has the capacity to handle both the AG enforcement proceedings and the putative employee class action currently pending against MTDC. Of particular relevance, Northfield McKay has practical experience counseling public-sector and quasi-governmental entities on data-privacy compliance and remediation — experience that may prove especially valuable to MTDC given its organizational structure and the regulatory environment in which it operates.
Advance Notice to Referral Firms
In the interest of facilitating a smooth transition, I have provided each of the recommended firms — specifically, Victoria Aldridge at Aldridge, Paulson & Cho LLP and Damien Northfield at Northfield McKay LLP — with a general heads-up that MTDC may be reaching out in the near term regarding defense of a BIPA enforcement matter and a related employee class action. I want to be clear, however, that in those communications, Calderwood & Harkness did not disclose any confidential information regarding MTDC, the substance of the proposed engagement, or the reason for Calderwood & Harkness's declination. Those preliminary contacts were limited to advising each firm that they might expect to hear from a prospective client seeking representation in a BIPA-related matter. Each firm will, of course, need to conduct its own independent conflicts check before undertaking any representation of MTDC, and you should anticipate that such a review will be among the first steps in any engagement discussion.
Recommendation and Timing Considerations
Given the pendency of the AG CID, which was issued on April 22, 2024, and the class action complaint, which was filed on April 29, 2024 (Cook County Case No. 2024-CH-04417), I strongly recommend that MTDC contact both firms promptly. The need to engage experienced BIPA counsel as soon as practicable cannot be overstated, particularly in light of the response deadlines that may be associated with the CID and the necessity of preserving all available defenses in the class action.
Either firm would, in my assessment, be well-suited to handle the full scope of the matters confronting MTDC, including but not limited to the following:
• Defense of the AG CID and any anticipated enforcement action arising therefrom;
• Defense of the putative employee class action (Cook County Case No. 2024-CH-04417);
• BIPA remediation counseling, including assessment and revision of biometric-data collection, storage, and retention practices;
• Potential vendor cross-claims and indemnification proceedings, to the extent that third-party vendors bear responsibility for the biometric-data processing practices at issue; and
• Related employment counseling, including assessment of workforce notification and consent protocols and development of compliant policies going forward.
In addition, I would suggest that MTDC may wish to coordinate with Constance Hargrove at Hargrove, Tillman & Reese LLP regarding the engagement of new specialized counsel, given that Hargrove, Tillman & Reese continues to serve as MTDC's outside litigation counsel and was the original source of the referral to our firm. Ms. Hargrove's familiarity with the broader litigation posture will be valuable in ensuring a seamless onboarding of whichever firm MTDC ultimately selects.
Disclaimer
For the avoidance of any doubt, I reiterate that no attorney-client relationship was formed between Calderwood & Harkness LLP and MTDC at any point during the intake and conflicts-review process that preceded our declination on May 17, 2024. The referral recommendations contained in this letter are provided solely as a professional courtesy and do not constitute an endorsement or guarantee of any particular outcome in the matters described herein. MTDC should conduct its own independent due diligence in evaluating and selecting counsel, including such inquiries into each firm's qualifications, fee structures, staffing, and capacity as MTDC deems appropriate.
Offer of Further Assistance
Although Calderwood & Harkness is unable to represent MTDC in these matters, I am available to answer any procedural questions you may have regarding the referral process itself. Should you need to reach me, my direct contact information is as follows:
Rachel Bernstein Direct Telephone: (312) 555-8437
Email: rbernstein@calderwoodharkness.com
I wish you and your team well in addressing these matters, and I hope that the referrals provided herein prove helpful to MTDC as it moves forward with the selection of qualified counsel.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Rachel Bernstein Partner, Privacy & Data Security Practice One North Wacker Drive, Suite 4200 Chicago, Illinois 60606
cc:
Constance Hargrove, Esq. Hargrove, Tillman & Reese LLP 233 South Wacker Drive, Suite 5600 Chicago, IL 60606 (as MTDC's existing outside litigation counsel)
Helen Drazkowski, Esq. General Counsel, Calderwood & Harkness LLP (internal copy)
Colleen Farrow Director of Conflicts & New Business, Calderwood & Harkness LLP (internal copy)
Enclosures: None. Contact information for recommended referral firms is provided within the body of this letter.