In re Facebook Biometric Info. Privacy Litig.

In re Facebook Biometric Info. Privacy Litig.

Opinion

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Re: Dkt. Nos. 445, 468

Plaintiffs Nimesh Patel, Adam Pezen and Carlo Licata brought this consolidated [*4]  class action lawsuit against defendant Facebook, Inc., for violations of the Illinois Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. 14/1 et seq. (2008). On the eve of a trial setting conference in February 2020, the parties reported that a settlement in principle had been reached between the class and Facebook. After an extended hearing, the Court denied plaintiffs' initial motion for preliminary approval of the class action settlement over serious concerns about the fairness of several terms to class members and the overall adequacy of proposed relief, including the amount of damages to be paid to the victims of Facebook's conduct.

The parties filed supplemental briefs renewing their preliminary approval request, and negotiated revisions to the proposed settlement to address the Court's concerns. The Court held another hearing in July 2020, and took live testimony from Facebook's Face Recognition Product Manager on several issues related to the adequacy of the proposed notice to the class and the class definition. The revised settlement agreement and additional information presented by the parties have resolved the Court's concerns. Consequently, preliminary approval of the class action settlement [*5]  is granted.

BACKGROUND

The consolidated complaint in this case alleges that Facebook violated Sections 15(a) and 15(b) of BIPA by collecting and storing the class members' biometric data in the form of scans of their faces without prior notice or consent. Dkt. No. 40. Facebook harvested the scans in connection with its "Tag Suggestions" program, which looks for and identifies people's faces in photographs uploaded to Facebook to promote user tagging. Id.

The case was litigated fiercely for over five years, with no legal pebble left unturned. Early on, Facebook sought to terminate the case on choice-of-law grounds, saying that California and not Illinois law applied to the class's claims. Dkt. No. 69. After an evidentiary hearing, the Court determined that Illinois law applied and that plaintiffs had stated a claim under BIPA. Dkt. No. 120. Facebook then sought to dismiss the case under Rule 12(b)(1) for lack of Article III standing under Robins v. Spokeo, Inc., 867 F.3d 1108, 1112 (9th Cir. 2017). Dkt. No. 227. The Court concluded that plaintiffs had alleged a concrete and actual injury in fact under BIPA that was sufficient to confer standing. Dkt. No. 294. After that, the parties vigorously contested plaintiffs' motion to certify a class, which the Court resolved by granting [*6]  certification. Dkt. No. 333. The Court then took up the parties' cross-motions for summary judgment, which were denied pursuant to the Court's previous interpretations of BIPA and other points of Illinois law, and the presence of multiple genuine disputes of material fact. Dkt. No. 372. After the Court ordered pre-trial notice to the certified class, Dkt. No. 402, but before the notice had gone out, the Ninth Circuit granted Facebook permission to appeal the class certification decision, and the district court proceedings were stayed in the interim. Dkt. No. 406. In August 2019, the Ninth Circuit published an opinion affirming the class certification order. Dkt. No. 416. While these events were unfolding, the Illinois Supreme Court published a decision interpreting BIPA that largely adopted the Court's construction of the statute. See Rosenbach v. Six Flags Entm't Corp., 2019 IL 123186, 432 Ill. Dec. 654, 129 N.E.3d 1197 (Ill. 2019).

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