EAST ST. LOUIS - Graduation picture provider Candid Color Systems of Oklahoma challenges Illinois jurisdiction over a potential class action alleging invasion of biometric privacy.
Candid’s counsel, Gerald Maatman of Chicago, moved to dismiss the action at U.S. district court on Nov. 1, claiming Candid has no real property, bank accounts or employees in Illinois.
He asserted other reasons, including a claim of immunity as subcontractor for a government contractor at Collinsville High School graduation in May.
Plaintiff Spencer Mayhew graduated there, and his mother ordered pictures online.
John Driscoll of Puerto Rico and Matthew Limoli of his firm sued Candid and TSS Photography of Salem for Mayhew in St. Clair County Circuit Court in July.
They claimed Candid and TSS Photography collected and stored facial geometry without consent, and they didn’t publish policies on storing and destroying information.
Driscoll and Limoli claimed Candid and TSS improperly profited from data they collected and stored.
Candid allegedly provided photographers a platform, Ecommerce, to sell photographs from graduations, youth sports, and other events.
Driscoll and Limoli claimed Ecommerce can identify faces in a photo and find matches in a gallery.
They claimed galleries contain images of Illinois citizens who didn’t consent or even know their images were collected.
They added that thousands would belong to the class.
They sought $5,000 in liquidated damages for each intentional violation and $1,000 for each negligent violation.
Maatman removed the complaint to district court for Candid, claiming the amount in controversy exceeded a $5 million limit on class actions in state courts.
He figured the law would entitle 500 plaintiffs alleging three violations each to $7.5 million.
He claimed Mayhew improperly joined TSS to defeat diversity jurisdiction.
Maatman added that Mayhew didn’t state a colorable claim against TSS because he alleged that it possessed photographs and not biometric data.
On Oct. 4, Driscoll and Limoli deleted claims against TSS, added Rosalie Nolen as a plaintiff, and added Kabance Photo Services of Missouri as a defendant.
Nolen claimed Kabance violated the law by photographing her at graduation from Blackburn College in Carlinville in 2021.
Maatman’s motion to dismiss claimed that no data from the platform is stored on servers in Illinois and equipment for operating it is entirely outside of Illinois.
“Nor has Candid Color Systems had any control over or played any role relative to the method customers use to sort photos uploaded to their Ecommerce accounts,” he wrote.
Maatman claimed decisions on sorting photos have been made solely by customers.
“Plaintiffs merely allege that Candid Color Systems is a technology vendor for the separate company that photographed them during their respective graduation ceremonies,” he wrote.
He claimed nothing in the complaint suggested Candid knew about photographers uploading photos to accounts or suggested it exercised or could have exercised control over the data.
He added that plaintiffs didn’t allege direct relations with Candid whereby Candid could have obtained their consent.
Maatman denied that Candid made a profit, claiming the use of data to increase sales of photographs doesn’t entail sharing it with any entity.
He claimed Illinois courts consistently dismiss biometric privacy claims against technology vendors in other states with whom plaintiffs had no direct contact.
He also claimed Mayhew didn’t explain how photographers obtained his mother’s name and email address, and Nolen didn’t explain how they obtained her name and email address.
District Judge David Dugan has set trial to begin in September 2025.