A motion filed by Snap Inc., operator of the popular application Snapchat, said that the federal court has no authority to decide the Illinois Biometric Information Privacy Act (BIPA) case before it due to lack of subject matter jurisdiction. May’s class action was filed by Illinois residents who use Snapchat and who opted out of its arbitration provision.
They argued that the company illegally records their facial geometry without consent or the requisite disclosures. The suit focused on the app’s “Lenses” and “Filter” features, which allow users to edit the photos and videos they share to include real-time special effects and sounds, including modifying their facial features.
Their complaint leveled multiple BIPA causes of action at the company and asked for statutory damages and injunctive relief.
In last week’s motion, Snap asked the Chicago, Ill. federal court to toss the case for failure to allege subject matter jurisdiction. The filing says that the plaintiffs use the Class Action Fairness Act (CAFA) as an exclusive basis for jurisdiction but do not, and cannot, allege that the putative class of Snap users who also opted out of its arbitration agreement consists of at least 100 members, CAFA’s minimum requirement for jurisdiction.
The plaintiffs’ tally of putative class members is 51, barely more than half of the CAFA requirement, Snap points out. Relatedly, the plaintiffs do not attempt to circumvent the arbitration provision by arguing for its unenforceability, which the defendant says, “makes sense, because Snap’s arbitration agreement has been enforced by numerous courts in BIPA cases.”
Additionally, Snap counters the plaintiffs’ allegations that its Lenses and Filter features use facial recognition technology. Instead, the defendant says that Lenses uses object recognition technology which “allows the camera to recognize that a nose (or an eye or a mouth) appears in the frame, but Lenses does not identify any particular nose or eye or mouth—let alone a whole face— as belonging to any specific person,” the motion clarifies.
Snap seeks to present the motion to Judge Robert M. Dow Jr. on July 12.
The plaintiffs are represented by Sulaiman Law Group Ltd. and Snap by Morgan, Lewis & Bockius LLP.