Plaintiffs Urge Court to Strike New Arguments in Microsoft’s Bid to End Facial Recognition Privacy Case

The two plaintiffs taking on Microsoft Corporation over alleged facial recognition technology abuses have said that the company made new arguments too late in the game: in its reply brief in support of summary judgment, leaving the plaintiffs no opportunity to respond.

The plaintiffs’ Illinois Biometric Information Privacy Act (BIPA) case proceeding on Microsoft’s turf in Seattle, Wash., alleges that the company used a dataset of images collected from the plaintiffs and putative class without their consent to improve the fairness and accuracy of its facial recognition products, resulting in breaches of their privacy.

In May, Microsoft renewed its motion for summary judgment following the court’s order for more briefing. The company then argued that aspects of the plaintiffs’ case were foreclosed as a matter of law. Chief among them was Microsoft’s extraterritoriality defense, asserting that as a Washington-based company that neither acted in Illinois nor had any idea that photos or data of Illinois residents were in the dataset, it should not be held accountable under BIPA.

Last week’s motion said Microsoft improperly raised new personal jurisdiction arguments for the first time via footnotes in its final summary judgment brief. “‘[I]t would be absurd if Plaintiffs could subject Microsoft to Illinois regulation in a Washington court when Illinois doesn’t even have enough Illinois contacts to give rise to Illinois jurisdiction,’” Microsoft’s reply said.

The plaintiffs said that the court should strike Microsoft’s new arguments, noting that the Ninth Circuit instructs courts to disregard issues raised for the first time in reply briefs.

Moreover, they asserted that regardless of whether Microsoft’s new arguments are stricken, they are incorrect. “Plaintiffs did not file in Washington because they believed there was no personal jurisdiction in Illinois,” the motion clarified, but did so “to avoid the many months of unnecessary and protracted jurisdictional discovery and motion practice required to resolve questions of personal jurisdiction.”

The plaintiffs are represented by Lynch Carpenter LLP and Loevy & Loevy. Microsoft is represented by Morgan, Lewis & Bockius LLP and Davis Wright Tremaine LLP.