District judge Nancy Rosenstengel granted Apple Inc.’s motion to supplement its motion for reconsideration of an order remanding the claim that it profited from individual biometric data to the St. Clair County Circuit Court.
Apple filed its motion for leave to submit supplemental authority in support of its motion to reconsider on Dec. 16 through attorney Raj Shah of Chicago.
Apple argued that the Seventh Circuit accepted an appeal to review a remand order in another lawsuit involving the Illinois Biometric Information Privacy Act (BIPA) against Clearview Al Inc. on Nov. 18. Plaintiff Thornley’s suit alleges Clearview sold access to a database containing biometric information.
The suit against Clearview was removed to federal court, but the district court granted a motion to remand “finding the plaintiffs affirmatively disclaimed Article III standing as ‘master[s] of [their] own complaint,” the motion stated.
The Seventh Circuit’s decision is due by Jan. 18.
Apple argued that the appellate court’s decision in the case against Clearview “reflects a development in the law after Apple filed its motion, signaling the possibility of further development in the law regarding federal jurisdiction and section 15(c) claims.”
“Nonetheless, the Seventh Circuit’s decision to review Thornley reflects a development in the law after Apple filed its motion, signaling the possibility of further development in the law regarding federal jurisdiction and section 15(c) claims. For that reason, Apple respectfully requests under Local Rule 7.1 (g) that the court grant leave to submit Clearview as supplemental authority. If the court has not ruled on the pending motion when Thornley is decided, Apple will seek leave to file the Seventh Circuit’s decision as additional supplemental authority,” the motion stated.
Chief Judge Rosenstengel entered an order Dec. 17 granting Apple’s motion.
Apple filed the motion to reconsider on Nov. 16 through attorney Raj Shah.
Counts II and III of the complaint were remanded to the St. Clair County Circuit Court on Nov. 12. The two counts allege Apple violated BIPA by possessing and profiting from the class members’ biometric identifiers and biometric information. She also denied Apple’s request to dismiss the allegation that it violated BIPA by collecting the biometric identifiers.
In the motion to reconsider, Shah wrote that the allegation that Apple profited from biometric data should be dismissed rather than remanded, as the claim “is no more cognizable in state court.”
He wrote that “the plaintiffs simply have not alleged any cognizable violation. The theory they advance is not recognized by BIPA as a matter of law.”
“The plaintiffs’ failure to plead facts that Apple sold, leased, traded or otherwise profited from the plaintiffs’ biometric identifiers or biometric information is a pleading failure that is not different from any other plaintiff’s failure to plead essential elements of a cause of action. For this reason, the claim should have been dismissed,” Shah added.
The motion states that Rosenstengel correctly ruled that the plaintiffs “generally allege that Apple profited from sales of its devices which include a facial recognition feature within the pre-installed Photos app.”
Shah wrote that a defendant cannot be held liable “merely because it is the seller of devices that allegedly generate BIPA protected data."
“The court’s determinations should have resulted in a dismissal of the claim rather than the prospect of renewed motion to dismiss briefing before the state court and a possible second removal of the same claim back to this court,” the motion states.
Plaintiffs Roslyn Hazlitt, Jane Doe, by and through next friend John Doe, Richard Robinson and Yolanda Brown filed an opposition to Apple’s motion for reconsideration on Nov. 30 through attorney Andrew Schlichter of Schlichter Bogard & Denton LLP in St. Louis.
Schlichter wrote that the defendant’s motion for reconsideration is “contrary to controlling authority and should be rejected.”
“Under binding Seventh Circuit case law, where a plaintiff in a removed case lacks Article III standing to pursue a claim in federal court, remand, not dismissal, is the appropriate remedy,” the opposition states. “This is because where Article III standing is absent, subject matter jurisdiction is likewise absent, and a district court has no power to adjudicate a claim.”
Schlichter also wrote that the plaintiffs have sufficiently alleged their claim that Apple profited from their biometric identifiers through the facial recognition technology.
“Defendant’s novel theory that a plaintiff must allege that a defendant sold his or her biometric data in order to sustain a section 15(c) claim is directly contradicted by the statute’s plain language,” the opposition states. “Section 15(c) creates liability where an entity is found to ‘sell, lease, trade, or otherwise profit’ from biometric data.”
“Here, plaintiffs allege that defendant otherwise profited from possessing and collecting customers’ biometric data because doing so enabled defendant to sell more devices, and thus make more money,” it continues.
Schlichter added that the defendants are incorrect in their argument that individual harm is necessary to state a claim.
“As the Illinois Supreme Court has found, BIPA does not require a plaintiff to ‘plead and prove that they sustained some actual injury or damage beyond infringement of the rights afforded them under the law.’”
The putative class action was filed on March 2 in St. Clair County Circuit Court before Apple removed the case to the U.S. District Court for the Southern District of Illinois on May 6. They argue that Apple violated BIPA by collecting, possessing and profiting from their biometric identifiers.
In her order remanding the claim against Apple, Rosenstengel concluded that the plaintiffs have standing for their claims because they allege Apple never received informed consent before collecting face geometries within the Photos app.
Rosenstengel held that the plaintiffs’ claims that Apple possessed and profited from their individual biometric data because it sold devices based upon its facial recognition technology should be remanded to St. Clair County Circuit Court but added that the plaintiffs' make general claims.
“Plaintiffs’ allegations are devoid of any particularized or concrete injury,” she wrote. “Plaintiffs do not, nor could they, claim to be personally or individually affected by Apple selling devices based on the facial recognition technology in its Photos App.”
According to the complaint, the plaintiffs allege Apple violated BIPA by collecting, possessing and profiting from their facial geometries through facial recognition. They claim the Apple Photos app uses a proprietary software and facial recognition technology to scan facial features from photographs, creating a “faceprint” for every person detected “‘without the knowledge or informed written consent of’ the user or others who may appear in the photographs.”
The plaintiffs acknowledge that the Photos app uses “on-device processing,” but argue that Apple is liable because it provides the app.
The plaintiffs seek class certification, including “all Illinois citizens whose faces appeared in one or more photographs taken or stored on their own Apple Devices running the Photos App from March 4, 2015 until present.”
They seek injunctive relief, actual damages, $5,000 in statutory damages for each intentional and reckless BIPA violation, $1,000 for each negligent BIPA violation, attorney’s fees and court costs.
Apple filed a motion to dismiss the complaint on June 12. The defendant argued that the complaint is “devoid of factual allegations that Apple Inc. engages in any of the conduct against which the Illinois Biometric Information Policy Act protects: a private entity’s unauthorized collection, possession, and disclosure of individuals’ unique and personal ‘biometric identifiers’ or ‘biometric information.’”
Apple argued that the plaintiffs fail to plead that the defendant, the device or the Photos app links facial scans from photos to identifiable individuals. It added that device users have control over whether to tag people in photos.
The defendant further argued that the complaint fails to allege that it actually collects the information at issue. The complaint alleges the information is stored in the memory on the specific Apple device, the motion states.
“The plaintiffs therefore resort to tenuous and never before used theories of vicarious or secondary liability as a basis for their BIPA claims against Apple,” the motion stated. “The Illinois legislature imposed no such liability in enacting BIPA, and courts routinely dismiss claims against device manufactures and software developers that, like here, allege nothing more than the sale of technology which allegedly created biometric identifiers or biometric information during operation by the end-user.”
In her ruling, Rosenstengel noted that Apple removed the complaint under the Class Action Fairness Act and then sought dismissal under the same act, which she called “unusual positioning.”
U.S. District Court for the Southern District of Illinois case number 3:20-cv-421