Biometric Privacy Class Action Against Canadian Wemagine.AI Rejected for Second Time on Jurisdictional Grounds

Last Thursday, Judge Thomas M. Durkin authored an opinion dismissing with prejudice claims against Wemagine.AI LLP by app users alleging violations of the Illinois Biometric Information Privacy Act (BIPA) for lack of personal jurisdiction.

The ruling explained that Wemagine is a British Columbia, Canada-based company that owns the mobile application Voila AI Artist, which “uses artificial intelligence to extract a person’s face from a photo and transform it to look like a cartoon.” Two Illinois residents sued Wemagine for violations of BIPA, and specifically for collecting, storing, and disclosing the facial geometry and biometric data of Voila users without their consent.

Following dismissal of their first complaint, the plaintiffs were granted leave to amend. Last week’s seven-page holding said, however, that the amended pleading did not salvage their claims. 

The court weighed the new personal jurisdiction argument that because Illinois users are shown third-party advertising during use of Viola, the company generates revenue in Illinois. However, Judge Durkin declined the contention in reliance on circuit precedent holding that advertisements or solicitations of business are not enough to sustain personal jurisdiction in Illinois.

Further, the plaintiffs did not allege that their injuries arose out of the third-party advertisements, the court explained. Rather, the alleged harm was occasioned by the plaintiffs’ own downloading and using the Viola, the opinion noted, pointing out that the proffered theory lacked “a causal nexus to the injury.”

As the BIPA claims failed on the threshold issue of personal jurisdiction, Judge Durkin declined to reach Wemagine’s failure to state a contentions.

The plaintiffs are represented by Bursor & Fisher P.A. and Nick Larry Law LLC and Weimagine by Mag Mile Law LLC.