Facebook Petitions the Supreme Court in BIPA Violation Case

On December 4, Facebook filed a petition for a writ of certiorari for the case (Facebook, Inc., v. Nimesh Patel, Adam Pezen, and Carlo Licata et al 19-706; underlying case 18-15982), presenting three questions to the Court. The questions presented are if “a court can find Article III standing based on its conclusion that a statute protects a concrete interest, without determining that the plaintiff suffered a personal, real-world injury from the alleged statutory violation”; if “a court can find Article III standing based on a risk that a plaintiff’s personal information could be misused in the future, without concluding that the possibility of misuse is imminent” and if “a court can certify a class without deciding a question of law that is relevant to determining whether common issues predominate under Rule 23.”

The class action case is in relation to the Illinois Biometric Information Privacy Act (BIPA). Nimesh et al have sought tens of billions of dollars for the class of millions of people for Facebook’s alleged violation. The case claimed that Facebook violated BIPA because of its use of facial-recognition software to tag friends in photographs. While Facebook notified them and gave them the opportunity to opt-out of the feature, it did not obtain consent or notice as required by BIPA. The plaintiffs admitted that they did not receive harm from the alleged BIPA violation, only that their privacy interests have been violated. The Ninth Circuit Court stated that the plaintiffs have Article III standing because “any BIPA violation ‘necessarily’ gives rise to standing.” 

Initially, Facebook tried to dismiss the case stating that BIPA does not apply to photographs or information taken from photographs; this argument failed. Another motion by Facebook was denied when the court stated, “the abrogation of the procedural rights mandated by BIPA necessarily amounts to a concrete injury,” further, “no ‘real-world harm’ is required.”

Facebook has petitioned because “the Ninth Circuit never analyzed whether each Plaintiff in fact suffered personal, real-world injury as a result of the alleged statutory violation.” In August, the Ninth Circuit ruled that Nimesh et al. have standing, stating that intangible harms like a violation of a statutory privacy right are grounds for such claims. However, there is a circuit split on whether plaintiffs must demonstrate and show harm to bring privacy and data breach causes of action. Facebook has argued that the class certification violated Rule 23 because the injury did not occur primarily in Illinois, thus there is not common question for the class, the Ninth Circuit upheld the class certification.

The petition states “the Ninth Circuit held below that it was not required to decide a predicate question of law relevant to class certification—the question of where a BIPA violation occurs—when evaluating whether common issues predominate…The  Second, Eighth, and Eleventh Circuits, in contrast, hold that a court must decide a predicate question of law that bears on class certification prior to certifying a class…This Court should grant certiorari to resolve this straightforward division, which will encourage forum shopping in cases involving unsettled questions of statutory interpretation.”

According to Harvard Law, “[i]f the Supreme Court hears the case and affirms the Ninth Circuit’s ruling that the plaintiffs have standing, it could provide a clear path for plaintiffs to bring statutory privacy claims in all federal courts.”

Facebook has argued that the petition should be granted because “the Ninth Circuit’s decision created and deepened two clear splits on Article III standing” and it “created a clear split as to whether a court must decide a threshold legal question relevant to the predominance inquiry before certifying a class.”

Facebook seeks for the Court to grant certiorari and reverse the Ninth Circuit’s decision.  Facebook is represented by Hogan Lovells and Nimish et al are represented by Robbins Geller Rudman & Dowd, Edelson, and Labaton Sucharow.