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Whether plaintiffs' invasion of privacy claims are
sufficient to support standing where the alleged violations did not
result in physical harm or the loss of money or property.
Background
In May 2015, Facebook users in Illinois filed three putative
class actions alleging that the company violated the Illinois
Biometric Information Privacy Act ("BIPA") by using data
from uploaded photos to create facial recognition software for its
"Tag Suggestions" feature, which allows the site's
users to recognize friends. Plaintiffs agreed to transfer the
actions to California, where they were consolidated into one
proposed class action in September 2015.1
In April 2018, Judge James Donato of the U.S. District Court for
the Northern District of California certified a class of
"Facebook users located in Illinois for whom Facebook created
and stored a face template after June 7, 2011."2
Facebook appealed the decision.3
On August 8, 2019, a panel of the Ninth Circuit affirmed
certification of the class and noted that Facebook's facial
recognition technology "invade[d] an individual's private
affairs and concrete interests."4 On October 18,
2019, the Ninth Circuit denied Facebook's motion for rehearing
en banc.5
Current Briefing
On October 24, 2019, Facebook filed a motion for a stay of the
Ninth Circuit's mandate pending its forthcoming petition for
certiorari to the Supreme Court.6 In its motion,
Facebook indicated that it would raise the following questions in
its petition: (1) whether the invasion of privacy that plaintiffs
allegedly suffered establishes Article III standing under the
Supreme Court's decision in Spokeo, Inc. v.
Robins;7 (2) whether a court must find that common
issues predominate before certifying a class under Rule 23(b)(3);
and (3) whether the "enormous statutory award" that
plaintiffs seek violates Rule 23(b)(3)'s superiority
requirement and the constitutional due process provisions because
it is unconnected to an actual injury.8 In an opposition
filed one day later, plaintiffs contend that Facebook has failed to
raise any issues appropriate for the Supreme Court's
review.9
On October 30, 2019, the Ninth Circuit granted Facebook's
motion to stay the mandate until January 16, 2020, thereby
providing Facebook time to file a petition for a writ of certiorari
in the Supreme Court.10 The stay will remain in effect
if the Supreme Court grants certiorari.11
Thoughts & Takeaways
If the Supreme Court grants certiorari, the case could present
an opportunity for guidance on what privacy and data breach
violations are actionable under Spokeo, which would likely
have significant ramifications for class litigation given the
growing trend of similar actions. Damages under the BIPA are set at
$1,000 for each negligent violation and $5,000 for each reckless or
intentional violation. With a class of potentially seven million
Facebook users, the case could have significant consequences for
the social media giant and far-reaching implications in the data
privacy space.
That said, the Ninth Circuit's decision is consistent with a
January 2019 ruling from the Illinois Supreme Court that found that
BIPA does not require a plaintiff to allege separate "actual
damages beyond violation of ... rights under the Act in order to
bring an action under it."12 Plaintiffs assert that
because the instant action involves questions of state law that
have been decided by the state's highest court, the Supreme
Court is even more unlikely to grant review.
Read the motion to stay the mandate here, the brief in opposition here, and the order granting the stay here.
Footnotes
1. In re Facebook Biometric Info. Privacy
Litig., No. 3:15-cv-03747-JD (N.D. Cal. May 14,
2015).
2. In re Facebook Biometric Info. Privacy
Litig., 326 F.R.D. 535, 543 (N.D. Cal. 2018).
3. Patel v. Facebook, Inc., No. 18-15982 (9th
Cir. May 30, 2018).
4. Patel v. Facebook, Inc., 932 F.3d 1264, 1273
(9th Cir. 2019). The opinion is available here.
6. Facebook's Motion for a Stay of the Mandate
Pending the Supreme Court's Disposition of its Anticipated
Petition for a Writ of Certiorari, Patel, No. 18-15982
(9th Cir. Oct. 24, 2019), ECF No. 106-1.
7. 136 S. Ct. 1540 (2016).
8. Id.
9. Opposition of Plaintiffs-Appellees to Motion to Stay
the Mandate, Patel, No. 18-15982 (9th Cir. Oct. 25, 2019),
ECF No. 107-1.
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The California Consumer Privacy Act (CCPA) goes into effect 1 January 2020. The Act, officially called AB-375, provides significant protections for consumer privacy in California.
With less than one month to go before the California Consumer Privacy Act of 2018's ("CCPA") effective date of January 1, 2020, businesses should be aware of the potential litigation that awaits them.
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