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Patel v. Facebook Inc.

United States District Court for the Northern District of California

February 26, 2018, Decided; February 26, 2018, Filed

Case No. 3:15-cv-03747-JD

Opinion

 [*950]  ORDER RE RENEWED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Re: Dkt. No. 227

In this [**3]  putative class action case under the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. ("BIPA"), named plaintiffs allege that defendant Facebook, Inc. ("Facebook") unlawfully collected and stored their biometric data without prior notice or consent. Dkt. No. 40. Facebook asks to dismiss the case under Federal Rule of Civil Procedure 12(b)(1) and Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016) (Spokeo I) on the ground that plaintiffs have failed to allege a concrete injury in fact. Dkt. No. 227. The motion is denied.

BACKGROUND

This consolidated action originated as three separate cases originally filed in Illinois  [*951]  courts. Two of the cases were filed in federal court, while a third was filed in Illinois state court and removed to federal court by Facebook under the Class Action Fairness Act. Notice of Removal, Licata v. Facebook, Inc., No. 1:15-cv-04022 (N.D. Ill. filed May 6, 2015) (No. 1). The parties stipulated to transfer the cases to this Court, where they were consolidated into a single action. In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 1159 (2016). The consolidated class action complaint, Dkt. No. 40, is the operative complaint.

The consolidated complaint alleges that Facebook "operates the largest social network in the world, with over one billion active users." Dkt. No. 40 ¶ 1. The named plaintiffs, Nimesh Patel, Adam Pezen [**4]  and Carlo Licata, use Facebook "to, among other things, upload and share photographs with friends and relatives." Id. ¶¶ 2, 7-9.

Plaintiffs' claims arise out of Facebook's "Tag Suggestions" program launched in 2010. Id. ¶ 3. A user "tags" other Facebook users and non-users by identifying them in photographs uploaded to Facebook. Id. ¶ 2. "Tag Suggestions" is intended to encourage more tagging. Id. ¶ 3. It scans uploaded photographs "and then identif[ies] faces appearing in those photographs." Id. If the program "recognizes and identifies one of the faces appearing in [a] photograph, Facebook will suggest that individual's name or automatically tag them." Id. In effect, the program associates names with faces in photos and prompts users to tag those people.

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290 F. Supp. 3d 948 *; 2018 U.S. Dist. LEXIS 30727 **; 2018 WL 1050154

NIMESH PATEL, et al., Plaintiffs, v. FACEBOOK INC., Defendant.

Prior History: In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 2016 U.S. Dist. LEXIS 60046 (N.D. Cal., May 5, 2016)

CORE TERMS

biometric, concrete, collection, notice, identifiers, privacy, Tag, cases, faces, users, injury in fact, allegations, photographs, intangible, avatars, rights, stored, consolidated, Suggestions, courts, facial