EAST ST. LOUIS - Apple rejected an "undeveloped" proposal from class action lawyers Jerome Schlichter and Andrew Schlichter of St. Louis to reduce the size of a class by adding plaintiffs “to conform to the evidence adduced.”
They moved for leave to amend their complaint at U.S. district court on Oct. 20, stating they’d narrow the class definition and divide the remaining class in two.
They also stated they’d add five plaintiffs, “to ensure adequate representation of the classes.”
Apple counsel Eric Roberts of Chicago opposed the motion on Nov. 3, stating plaintiffs failed to explain what their undeveloped argument signified.
He stated they didn’t explain what inadequacies three current plaintiffs suffer, “and why the five new plaintiffs cure those inadequacies.”
He claimed the court is entitled to an explanation.
Schlichter and Schlichter sued Apple in St. Clair County Circuit Court in 2020, on behalf of Richard Robsinson, Yolanda Brown, and a John Doe parent of a minor.
They claimed Apple’s Photos application collected and stored facial geometry in violation of three sections in state biometric privacy law.
One section requires notice and consent, one requires publication of policies for data retention and destruction, and one prohibits profit from possession of data.
They proposed a class for Illinois citizens whose faces appeared in photographs taken or stored on their devices since 2015.
They also proposed a class for those whose faces appeared on Apple devices other than their own.
Apple removed the complaint to the Southern District of Illinois, claiming the amount in controversy exceeded a $5 million federal limit on class actions in state courts.
Apple moved to dismiss the complaint and plaintiffs moved to remand it to St. Clair County.
Chief U.S. District Judge Nancy Rosenstengel denied the motion to dismiss and retained jurisdiction over failure to notify and obtain consent.
However, she remanded the claim on retention and destruction and the profit claim to St. Clair County.
Andrew Schlichter amended the complaint in 2021, claiming Apple devices were incapable of lawful use in Illinois.
He claimed the minor plaintiff at age 8 owned an iPad, took photographs and appeared in photographs with relatives.
He claimed her parents didn’t consent to the collection and storage of her data.
Former magistrate judge Donald Wilkerson mediated the dispute this February, and no settlement resulted.
“The parties agree that settlement negotiations may resume when the case is in a different posture,” he wrote.
The posture changed when Andrew Schlichter moved to amend the complaint.
“While Plaintiffs seek to amend the complaint in order to revise the class definition, there is no requirement that a class action complaint contain a definition at all,” he wrote.
“Instead, a definition may be modified based on a party’s motion or on the court’s initiative and does not require an amended pleading,” he added.
“While plaintiffs would be free to modify the definition at the class certification stage they seek to do so now to ensure that narrowing the definition causes no prejudice or delay and to ensure adequate representation for the proposed subclasses,” he continued.
Schlichter claimed the current complaint contains classes for device users and nonusers.
“Plaintiffs seek to drop the nonuser class while subdividing and materially narrowing the current user class,” he wrote.
Schlichter claimed each class would be a subset of the current class of device users.
He proposed to certify a class of Illinois citizens whose devices placed their photographs in a People album since 2016.
He also proposed to certify a class of Illinois citizens who used a device containing a People album and who had an iCloud account enabled for photo storage since 2016.
He claimed an amendment wouldn’t prejudice Apple because legal theories wouldn’t change.
He added that plaintiffs merely sought to eliminate a large number of potential class members, and divide the remaining classes into more precise classes.
Roberts responded for Apple that written discovery ended in May and all that remained were depositions of Apple employees.
“As for the arguments plaintiffs put forward in the motion for amending the complaint, they are all directed at straw men of plaintiffs’ own imagining,” he wrote.
He claimed the schedule currently in force would not permit Apple to take discovery of new plaintiffs and a delay of class certification would be necessary.
“Plaintiffs cannot point to any argument Apple has made or has indicated it will make to which the proposed amended complaint is addressed,” he wrote.
Roberts wrote that current plaintiffs didn’t claim they were inadequate representatives but the motion called their adequacy into question.
He wrote that a reason to drop nonuser claims was that they created an untenable position.
He claimed that if data on devices of users is subject to the law, which Apple disputes, users rather than Apple would have to comply with their obligations to nonusers.
“If the data really is subject to the Biometric Information Act as counsel claims, they should have advised plaintiffs to modify their behavior to comply with the Act,” he wrote.
“Plaintiffs’ depositions confirm that they did not,” he added.
Rosenstengel has set trial to start in February.
Although Robinson, Brown, and John Doe moved to shake up their federal case they hadn’t moved to amend the St. Clair County complaint as of Nov. 3.
Circuit Judge Heinz Rudolf denied a motion to dismiss the case last year.
He has set a status conference for Nov. 22.