Law Street Media

Snap Seeks Stay of User’s Facial Recognition Tech. Case Pending Illinois Supreme Court Decision

A runner looking at their phone while taking a break.

Young sports woman taking rest and checking results on smartphone app after urban work out in the city

Nearly three dozen individuals suing Snap Inc. for biometric privacy violations resulting from their use of its popular social media app Snapchat may now face a pause in proceedings. Snap’s Tuesday-filed motion before an Illinois federal court says that a question critical to the plaintiffs’ ability to plead jurisdiction should soon be answered by the state’s highest court.

The users’ suit, originally filed as a class action in May, says that Snapchat app features illegally captured and stored unique face prints without their consent or the requisite disclosures. The Illinois user-plaintiffs, who also opted out of Snap’s arbitration agreement, brought the Illinois Biometric Information Privacy Act (BIPA) suit in federal court, asserting Class Action Fairness Act (CAFA) jurisdiction. They seek statutory damages pursuant of $1,000 per violation.

In July, Snap responded with a motion to dismiss for lack of subject matter jurisdiction, arguing that the number of individuals who opted out of Snap’s arbitration agreement was too small to support the $5 million in controversy statutory minimum as required by CAFA. The plaintiffs subsequently amended their complaint, no longer pleading it as a class action and instead, as one filed by just 31 plaintiffs on the basis of diversity jurisdiction.

According to the plaintiffs, they satisfy the amount in controversy of more than $75,000 per plaintiff on a “per scan” theory of BIPA liability. “Under this theory, a separate violation of BIPA occurs each time a defendant collects a plaintiff’s biometric data,” the motion explains. By contrast, Snap contests the “per scan” theory. Instead, the defendant contends “that a plaintiff is ‘aggrieved’ only by the initial collection of his or her biometric data, and a new claim does not accrue with each subsequent collection.” 

Snap explains that the Illinois Supreme Court is set to answer the question of which theory applies for purposes of subject matter jurisdiction after the Seventh Circuit certified the question for the state tribunal’s resolution in another BIPA case. According to the motion, the issue has been fully briefed and argued and a ruling is expected any day. 

In light of the impact the decision will have on the plaintiffs’ ability to satisfy the jurisdictional requirement, Snap asks that the court pause proceedings in the interim.

The plaintiffs are represented by Sulaiman Law Group Ltd. and Snap by Morgan, Lewis & Bockius LLP.

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