The Phillip Burton federal building in San Francisco. (Photo: Jason Doiy/ALM)

The Northern District of California could take on a new role in the enforcement of the Illinois Biometric Information Privacy Act after Facebook proposed a head-turning $550 million class action settlement over alleged violations of the out-of-state legislation, some lawyers say.

Since the Jan. 29 settlement pending before U.S. District Judge James Donato, two proposed BIPA class actions against Google over the company's use of facial recognition technology in its Google Photos product have also landed in the district.

Although some lawyers have said the half-billion-dollar Facebook settlement is enough to have plaintiffs lawyers flocking to California's federal courts, Paul Geller, managing partner of Robbins Geller Rudman & Dowd in Boca Raton, Florida, contends that the venue in these BIPA cases could be out of plaintiffs lawyers hands entirely.

Geller, one of the attorneys who represented Facebook users in the BIPA settlement over the company's use of facial recognition in its tag suggestions feature, said the case ended up in the Northern District of California because of a venue provision in Facebook's user agreement. On the basis of the agreement, Facebook moved his case, which was originally filed in the Northern District of Illinois, to California. Geller said his team didn't oppose the move "because our view was that a judge in San Francisco could apply the straightforward statute as easily as a judge in Chicago."

After the venue changed, Facebook argued that the court didn't have jurisdiction over the case, which Geller said "didn't pass the laugh test and was quickly and unceremoniously rejected by the court."

Google, too, locks users into litigation in federal and state courts in Santa Clara County, California in its terms of service.

Besides contractual obligation, Geller said the reason the Google cases wound up in the Northern District of California "could simply be that in following what is by far the largest BIPA settlement ever, the lawyers decided that the Northern District of [California] would be an appropriate place to file and one that Google could hardly argue against, as they are headquartered within the District."

The Northern District of California could also present fewer jurisdictional hoops for lawyers to jump through in general, according to Sean Wieber, co-chair of Winston & Strawn's regulated personal information practice group and chair of the firm's TCPA and BIPA litigation practices.

The Chicago lawyer pointed to Rivera v. Google, a 2018 BIPA case against Google over the same photo app in the Northern District of Illinois. In that case, U.S. District Judge Edmond Chang ruled the court did not have jurisdiction to hear the case, since the plaintiffs did not allege the "concrete injuries" necessary to establish Article III standing. In California, plaintiffs don't have to worry about being bounced back to state court, since the U.S. Court of Appeals for the Ninth Circuit ruled in the Facebook case that a violation of the BIPA statute and the creation and retention of a face template "for all time" is enough harm to trigger standing.

When tech companies such as Google are sued in their home state, where they're subject to general jurisdiction, "you're actually removing what I think is a potential expensive fight over venue," Wieber said.

Plus, Wieber said, the Northern District of Illinois and the U.S. Court of Appeals for the Seventh Circuit are known to be sticklers when it comes to jurisdiction. In a decision earlier this month, Seventh Circuit Chief Judge Diane Wood said that the court is "proud to have a reputation as a jurisdictional hawk."

However, if plaintiffs sue in California, not only do they bypass the Article III standing issue, they can also avoid a "metaphysical fight over whether a substantial portion of the BIPA violation actually occurred in Illinois," he said.

Mary Smigielski of Lewis Brisbois, who is co-chair of the firm's BIPA practice group and licensed in both Illinois and California, said that the different servers and technologies involved in these cases complicates which claims apply to which class members.

"I'm in Miami," Smigielski said. "If I had an Android phone, and I took a photo, I'm uploading that from Miami. I'm an Illinois citizen, it gets uploaded to a server in let's say Kansas. What the heck does that have to do with Illinois?"

The Northern District of California could set the tone for how those class certification questions are handled in the future, she said. "Obviously the tech companies are based in their neck of the woods, and to the extent they have the appropriate connection with BIPA to maintain jurisdiction, I think they absolutely would play a huge role," she said.

Donato certified the Facebook class action in 2018 but said he might have to unwind it later in the litigation. But questions on certification remain, since the case settled before it reached those arguments. Smigielski said the Northern District of California might be the venue to clarify those unknowns going forward. "I think those are the type of questions that as this evolves, and depending on the judge, there might be a more rigorous analysis of the standards of individual inquiries," she said.

But Michael Kanovitz of Loevy & Loevy in Chicago still expects to see the majority of BIPA cases filter through Illinois courts, noting that there's nothing "magic" about the Northern District of California.

"I feel pretty confident that if they could've brought [the case] in Illinois, they would've but there was the forum selection clause in the agreement," he said. "Illinois has got great courts, great judges and there is no reason a class of Illinois plaintiffs would not want to have their case heard by Illinois judges and Illinois juries."

Kanovitz, who is part of a plaintiffs team suing controversial facial recognition company Clearview AI in the Northern District of Illinois over BIPA and constitutional claims on behalf of Illinois residents, said that the case would still belong in Illinois even if Clearview was based in California and not New York.

"Unlike with Facebook, which had a relationship with each and every member of the class, because they were users of the platform, Clearview stole the pictures without any permission, without any notice," he said. "It has no high ground or claim or stake that it shouldn't be answerable in the courts of Illinois."

Eric Macey of Novack and Macey in Chicago, said a lot of the contours of the law have not been decided. Yet, he sees BIPA as bigger than both California and Illinois. "I expect to see more cases pop up everywhere," Macey said. "Anywhere someone can find people using biometric data that somehow touches the state of Illinois."