Is California a Better Venue for BIPA Litigation Than Illinois?
Some privacy lawyers say Illinois Biometric Information Privacy Act cases are landing in the Northern District of California mainly out of contractual obligation, though others maintain that the venue has its perks.
February 26, 2020 at 10:32 PM
6 minute read
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."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllRead the Document: 'Google Must Divest Chrome,' DOJ Says, Proposing Remedies in Search Monopoly Case
3 minute readApple Asks Judge to 'Follow the Majority Practice' in Dismissing Patent Dispute Over Night Vision Technology
AI Startup Founder Defrauded Investors of Millions, US Prosecutors Say
3 minute readUber Not Responsible for Turning Over Information on 'Dangerous Riders' to Competitor, Judge Finds
5 minute readLaw Firms Mentioned
Trending Stories
- 1Gibson Dunn Sued By Crypto Client After Lateral Hire Causes Conflict of Interest
- 2Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
- 3Pharmacy Lawyers See Promise in NY Regulator's Curbs on PBM Industry
- 4Outgoing USPTO Director Kathi Vidal: ‘We All Want the Country to Be in a Better Place’
- 5Supreme Court Will Review Constitutionality Of FCC's Universal Service Fund
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250