Apple product users are asking U.S. District Judge Nancy Rosenstengel to certify a class action against the tech giant on allegations that it collected and stored their biometric identifiers through the PhotosApp.
“Here, the claims of the named plaintiffs and those of the class all arise from the same course of conduct: Defendant’s practices with respect to biometric identifiers and biometric information,” wrote plaintiff counsel Andrew Schlichter of Schlichter Bogard. “The claims of the named plaintiffs and those of the class all are based on the same legal theories: Defendant’s alleged violations of BIPA.”
Schlichter filed the plaintiffs’ partially redacted motion to certify the class on April 5. They seek to certify the Local Device Class as “Every Illinois citizen whose Apple Device put a photograph of that citizen into a People album at any time between September 13, 2016, and the present.”
They seek to certify the iCloud Subclass as “Every Illinois citizen who had an Apple Device with a People album tagged with that citizen’s name or other identifier, and had an iCloud account enabled for photo storage, at any time between September 13, 2016, and the present.”
Schlichter wrote that class certification is appropriate because “the claims at issue involve a uniform course of conduct by defendant directed to all users of its devices, including the millions of Illinois citizens that plaintiffs seek to represent in this action.”
He argues that the putative class members are too numerous to be joined, stating the proposed class and subclass are “unquestionably large.”
Additionally, Schlichter argued that common questions exist and predominate. The plaintiffs would rely on common proof that their data was collected and common proof that they were not adequately informed that their biometric identifiers were collected and stored.
Schlichter also wrote that the remedy for any violations would not require individualized questions and injunctive relief would affect the entire class.
“The class’s entitlement to monetary relief can be established with common proof,” he wrote. “An individual need not show actual damages ‘beyond violation of his or her rights under the statute’ to recover liquidated statutory damages.'”
Schlichter asks the court to appoint plaintiffs John Doe, on behalf of Jane Doe, Richard Robinson, Yolanda Brown, Jonathan LeBlond, Patricia Orris and Angela Stevens as class representatives of the Local Device Class and appoint Robinson as representative of the iCloud Subclass.
“Each of them is an Illinois citizen who used an Apple device that put a photo of Plaintiff into a People album during the class period,” he wrote.
The putative class action was filed on March 2, 2020, 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, 2020.
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.
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.
U. S. District Court for the Southern District of Illinois case number 3:20-cv-421