CHICAGO – U.S. Seventh Circuit appellate judges granted Apple immediate relief from Chief District Judge Nancy Rosenstengel’s order remanding privacy invasion claims to St. Clair County circuit court.
On Jan. 22, they vacated the order and directed her to reconsider it in light of Townley v. Clearview, an opinion they issued on Jan. 14.
They have issued six opinions on privacy of biometric information in two years, all on the jurisdictional question of standing to sue.
A concurring judge found he couldn’t extract a rule from that line and wished the Supreme Court would repair its precedent.
Under Article III of the Constitution, persons lack standing in federal court when asserting an interest or claiming an injury that all members of the public share.
The Supreme Court finds injury in fact where harm is concrete and personal.
Roslyn Hazlitt of Belleville, Richard Robinson of Troy, Yolanda Brown of Godfrey, and minor Jane Doe of O’Fallon sued Apple last March.
They proposed to represent an Illinois class claiming Apple scanned faces through telephones and used the information improperly since March 2015.
Their counsel at Schlichter Bogard Denton in St. Louis seeks actual damages in addition to statutory damages.
The lawsuit alleges that Apple materially decreased the security of inalterable information and increased the likelihood of fraud or identity theft.
Plaintiff say Apple profited from the information, proximately caused injuries, and exposed the class to imminent threats of serious harm.
A first count alleges violation of a prohibition against collecting biometric identifiers without informed written consent.
A second count alleges violation of a requirement to publish schedules for retention and destruction.
A third count alleges violation of a prohibition against selling or profiting from a customer’s information.
Apple removed the action to district court in May, claiming the amount in controversy exceeds the $5 million minimum for federal jurisdiction.
Apple counsel Raj Shah of Chicago moved to dismiss the complaint, stating the scans weren’t biometric information or biometric identifiers.
He argues plaintiffs didn’t allege that Apple collected or possessed the scans, and they didn’t allege that Apple sold information or otherwise profited.
In November, Rosenstengel found plaintiffs had standing to pursue the first count and could proceed on it in her court.
She found they lacked standing on the second and third counts because their allegations were devoid of any particularized or concrete injury.
On her own motion she sent those counts back to St. Clair County.
Apple moved for reconsideration and sought immediate Seventh Circuit review.
Plaintiff counsel Jerome Schlichter responded, “It is well established that where a plaintiff in a removed case lacks Article III standing to pursue a claim in federal court, the claim should be remanded, not dismissed.”
He wrote that Apple made no effort to show Rosenstengel erred in concluding that plaintiffs lacked standing.
Shah replied that Rosenstengel didn’t grapple with the injury allegations in the complaint that supported removal.
He wrote that she didn’t provide Apple or plaintiffs with an opportunity to be heard on her concerns with standing.
“Even now, plaintiffs do not disclaim an injury to themselves,” Shah wrote.
On Jan. 14, in Townley v. Clearview, Seventh Circuit judges affirmed an order remanding a privacy suit to Cook County.
Plaintiffs in that case disclaimed any injury and alleged procedural violations.
The Seventh Circuit asked Apple and plaintiffs for comments on the opinion, and both claimed victory on Jan. 21.
For Apple, Shah wrote that Townley was decided in the narrow context of an artful complaint asserting bare procedural violations.
“Here, plaintiffs affirmatively made allegations that demonstrate a concrete and particularized injury in fact,” Shah wrote.
“Thornley makes clear that the district court has jurisdiction over the entire action filed by plaintiffs and removed by Apple.”
He wrote that splitting the claims would create inefficiency, a risk of conflicting rulings, and possible loss of due process.
Andrew Schlichter responded that the district court in Thornley remanded the same type of claim at issue with Apple.
“There would be no point to disavowing an injury that the district court found the complaint did not contain,” Schlichter wrote.
The Seventh Circuit vacated Rosenstengel’s order the next day.
She has set jury trial in April 2022.