Billion-Dollar Trial Given Greenlight After Facebook Loses in Supreme Court on Illinois BIPA Statute

Author:Mr Michael Roman and Mary A. Smigielski
Profession:Lewis Brisbois Bisgaard & Smith LLP

Chicago, Ill. (January 22, 2020) - On January 21, 2020, the U.S. Supreme Court denied Facebook's petition for a writ of certiorari to review whether a group of potentially millions of Facebook users have constitutional standing to pursue claims brought under the Illinois Biometric Information Privacy Act (BIPA) for alleged violations of the statute's notice and consent mandates. BIPA is the only statute in the nation that provides for a private right of action for the improper collection, retention, disclosure, or destruction of biometric identifiers and information, providing for statutory damages of $1,000 per negligent violation or $5,000 per reckless or intentional violation.

Patel v. Facebook, Inc. involves claims for damages under BIPA relating to Facebook's “tag suggestions” feature. When enabled, Facebook uses facial recognition software to analyze newly uploaded photos and then suggests that friends “tag” their friends in the photo. A class of Illinois Facebook users filed suit in the U.S. District Court of the Northern District of California claiming that this feature violates BIPA because the facial recognition software collects and uses their biometric identifiers or information without providing them proper notice. The class is comprised of potentially millions of users, and the claimed damages are billions of dollars.

Facebook moved to dismiss in the district court, arguing that the tag feature was clearly exempt under the photograph exception to BIPA. The district court denied the motion, reasoning that BIPA only excluded “paper prints,” not “digitized images.” After the Supreme Court decided its seminal Article III standing opinion on privacy claims, Spokeo v. Robins, Facebook again moved to dismiss for lack of subject matter jurisdiction for lack of standing, specifically that plaintiffs had not demonstrated that that they suffered a concrete and particularized injury to confer standing in federal court under Spokeo. The district court denied the motion, concluding that “the abrogation of the procedural rights mandated by BIPA necessarily amounts to a concrete injury,” and no “real-world harm” is required. The district court then certified a class of users, and Facebook filed an interlocutory appeal on the motion to dismiss and class certification in the Ninth Circuit Court of Appeals.

The Ninth Circuit sided with the Facebook users, affirming that the class had Article III standing to sue for procedural violations of BIPA...

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