Judge James Donato of the U.S. District Court for the Northern District of California.

SAN FRANCISCO — The judge overseeing a proposed $550 million settlement that Facebook Inc. reached to settle claims that its "tag suggestions" feature violated an Illinois biometric privacy law has asked lawyers in the case to provide detailed explanations of why the deal would pay class members less than statutory damages amounts.

U.S. District Judge James Donato of the Northern District of California noted at a case management conference Thursday that the Illinois Legislature set statutory damages at $1,000 for negligent violations of the state's Biometric Information Privacy Act and $5,000 for intentional or reckless violations. Plaintiffs sued in 2015, claiming that the social media platform's "tag suggestions" feature, which prompts users to identify "friends" in photographs posted to the site, violated BIPA.

Donato said this case was "very different" than other consumer cases since there was "a clear mandate from the Illinois legislature that these violations had a price tag."

Donato also said that he wanted the settlement papers set to be filed on March 12 to explain what benchmark amount the parties had set for damages and the reason for any discount from that statutory amount.

"The phrase litigation risk is not sufficient," Donato said. "Every case has litigation risk."

Donato further noted that all his "key interpretations" in the case had been backed up by both the Illinois Supreme Court and the federal appellate courts. In January 2019, the Illinois Supreme Court in a case involving Six Flags agreed with a prior ruling from Donato in the Facebook case which found that plaintiffs don't need to allege any harm beyond a statutory violation to sue under BIPA.

The U.S. Court of Appeals for the Ninth Circuit in August upheld Donato's decision granting class certification in the case, finding that BIPA protected "the right not to be subject to the collection and use" of biometric identifiers such as face templates and that "these statutory requirements would necessarily violate the plaintiffs' substantive privacy interests." The U.S. Supreme Court last month declined to take up Facebook's appeal of the case.

Donato said Thursday that the parties have a "lot more information" than just his interpretations of the Illinois law.

"Just saying trials are risky is not going to fly with me," he said.

Donato also said that he wanted the parties to explain how Facebook has agreed to change its practices as part of the settlement. He said that's "particularly important" in cases where a company can afford to pay large fees that the company detail how it has changed its ways.

"I want to see something that says this is not going to happen again," Donato said.

Michael Rhodes of Cooley, who represented Facebook at the hearing, said that the March 12 deadline for filing settlement papers might be "aggressive" but that the parties could file a report saying what the holdups are if the deadline needs to be pushed back.

Shawn Williams of Robbins Geller Rudman & Dowd, who represented the plaintiffs at the hearing, said that he would be open to moving back the deadline by a week or two, but that he was hopeful that the parties would meet the self-imposed deadline.

Donato, for his part, told the parties that if they delay too long, he'll "most certainly set a trial date."

"This is already a 2015 case that has had a number of off-ramps and on-ramps," the judge said.

Read more:

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