People in Illinois whose face appeared in a photo on Google’s Photos app could be in line for as much as $400 each, under a new $100 million settlement given an early nod in Cook County court.
The settlement would end one of the longest running class action lawsuits under Illinois’ strict biometrics privacy law, and would rank as one of the largest such settlements to date.
It will also allow the lawyers who have led the court fight since 2016 to claim a large chunk of the funds. While it is not yet known how much those lawyers will ask the judge to give them, judges have typically allowed plaintiffs’ lawyers to claim up to one-third of the total funds, in most other settlements ending similar class action claims under the Illinois Biometric Information Privacy Act.
In this case, that could amount to more than $33 million.
READ THE SETTLEMENT AGREEMENT HERE
The case stretches back nearly six years, when attorney Robert Ahdoot, of Burbank, California, and others with him, filed suit in Chicago federal court against Google.
The lawsuit took aim at Google over claims its Photos app improperly scanned the faces of people imaged in photos that were uploaded to the photo storage and sharing platform,
Specifically, the lawsuit accused Google of not obtaining consent from those people before scanning and storing their facial images, and also not providing certain notices, allegedly required by Illinois’ BIPA law, concerning the scans, and how the data would be stored, used, shared and ultimately destroyed.
At the time, the lawsuit marked one of the first forays into court against a tech giant under the Illinois BIPA law, amid the initial wave of lawsuits filed under the BIPA law.
It arrived roughly simultaneously as similar BIPA class action claims against Facebook and Shutterfly, leveling similar accusations.
In the years since, BIPA-related class action claims have exploded in Cook County Circuit Court and other courtrooms in Illinois and beyond.
Thousands of class action lawsuits have been filed against businesses of all types and sizes. And they have been fueled in large part by a litany of plaintiff-friendly court rulings that have left companies with little ability to sidestep the lawsuits, or even reduce the risk of massive financial losses, should the cases go to trial.
Under the BIPA law, plaintiffs are allowed to demand damages of $1,000 to $5,000 per violation. Courts have interpreted the law to define individual violations as each time a company scans people’s biometric identifiers, such as fingerprints, retinas or facial geometry.
Multiplied over an untold number of scans, this places businesses of even modest sizes and means at risk of potentially crippling judgments.
Faced with such risk, a growing number of businesses targeted by the lawsuits have opted to settle.
Facebook, for instance, recently agreed to pay $650 million to end the BIPA litigation against it over face scans of Illinois residents conducted by its photo tagging software.
That settlement would provide class members with payments of about $400 each, while attorneys were awarded $97 million.
While a number of BIPA class actions have targeted big tech companies, the vast bulk of class actions to date have instead taken aim at smaller employers, primarily over policies requiring workers to scan fingerprints to verify their identity when punching the clock at the beginning and end of work shifts or to access certain systems or secure areas.
Many of those cases have also settled in recent months, with settlements ranging from the hundreds of thousands of dollars to nearly $50 million.
However, throughout those intervening years, the class action against Google has continued, as the courts have grappled with the question of whether the plaintiffs actually suffered any harm that should allow them to demand such huge payouts.
Initially a Chicago federal judge said they could not, as he determined violations by Google of the technical provisions of the BIPA law merely left plaintiffs “feeling aggrieved.” That, he said, does not grant them standing under the standard set by the U.S. Supreme Court, which said plaintiffs need to demonstrate a “concrete injury” to press their claims in federal court.
The Illinois Supreme Court, however, reached a very different conclusion. In a different case in 2019, the state high court ruled plaintiffs don’t need to prove they were ever harmed in any real way to press claims under BIPA.
Rather, the Illinois Supreme Court said a technical violation of the BIPA law was sufficient to allow them to demand any amount of damages allowed by the law. And the state justices showed no sympathy for companies accused of violating the BIPA law, saying they determined any costs to businesses to be “insignificant” compared to the risk of unauthorized biometrics scans.
Defense lawyers at the time said the ruling converted the BIPA law into a “gotcha” statute, enabling plaintiffs lawyers to rake in windfall payments over harmless violations.
Armed with that decision, known as Rosenbach v Six Flags, plaintiffs lawyers have in the past two years successfully persuaded federal judges to allow them to send BIPA cases that would otherwise have ended in federal court, back to Cook County and other Illinois state courts, where the significantly looser standing requirements hold sway.
Federal judges have particularly determined that certain claims under BIPA cannot be heard in federal court, but can be returned to state court, on standing grounds.
The plaintiffs in the Google case won just such a remand, as the bulk of their lawsuit was severed by a federal judge, and sent back to Cook County.
The success of that maneuver led to settlement talks.
The final settlement was presented to Cook County Circuit Judge Anna Loftus on April 14. Loftus granted preliminary approval to the deal on April 25.
Attorneys will now set about notifying potential class members of the deal, and inviting them to submit claims for a cut of the funds.
According to settlement documents, there could be as many as 1.4 million potential class members. The plaintiffs lawyers estimate about 20%, or about 280,000 class members, will submit claims, amounting to payouts of about $200 to $400 for each class member. Class members would include any Illinois resident who was imaged in a photo posted to Google Photos since 2015.
They said further details would be presented at a special settlement website, which would be set up in coming days.
Plaintiffs have been represented by Ahdoot and his colleagues, Tina Wolfson and Theodore W. Maya, of Ahdoot & Wolfson, of Burbank, California; John C. Carey and David P. Milian, of Carey Rodriguez Milian, of Miami; Frank S. Hedin, of Hedin Hall, of Miami; Scott A. Bursor, of Bursor & Fisher, of Miami; and Katrina Carroll and Kyle A. Shamberg, of Carlson Lynch, of Chicago.
Google has been represented by attorneys Susan D. Fahringer, Ryan Spear and Kathleen A. Stetsko, of Perkins Coie, of Seattle and Chicago.
This article was first published in Cook County Record.