Court Grants Google’s Motion to Stay BIPA Suit

On Friday, Judge Beth Labson Freeman of the Northern District of California issued an order granting Google’s motion to stay all proceedings in an Illinois Biometric Information Privacy Act (BIPA) suit filed against it while the plaintiffs’ similar lawsuit filed against IBM in the Northern District of Illinois was resolved.

Previously, plaintiffs Steven Vance and Tim Janecyk filed a lawsuit against IBM in January 2020, alleging that IBM violated BIPA. Specifically, the order stated that in 2008 plaintiff Vance “uploaded photos of himself and his family members to Flickr…Flickr subsequently made Vance’s photos, as well as millions of other people’s photos, available to IBM in a single downloadable dataset (‘Flickr dataset’).” IBM purportedly “captured biometrics from these photographs by scanning the faces and extracting geometric (facial) data…It used this data to create its own dataset of ‘frontal-facing images of human faces’ (‘IBM dataset’),” which it allegedly used as part of a larger dataset the Diversity in Faces dataset (DiF dataset); the plaintiffs contended that IBM “used the DiF dataset to ‘profit from the biometric identifiers and information” of the plaintiffs and putative class.

The plaintiffs have filed other class-action BIPA suits, including one against Microsoft, Amazon, and FaceFirst, which alleged that these companies obtained IBM’s DiF dataset. Similarly, in the instant action against Google, the plaintiffs alleged that the DiF dataset was sent from IBM to Google in violation of BIPA. The court noted that Microsoft and Amazon have not requested a stay, but FaceFirst has also requested a stay like Google.

The court noted that in considering the motion to stay it must weigh “the possible damage to the non-moving party, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice.”  

Google argued in favor of granting the motion, saying “this is not a scenario where Plaintiffs must sit idly by while other parties litigate issues that bear upon their legal rights.” Google added that “there is little risk of evidence loss if a stay is granted because ‘the vast majority of evidence relevant to Plaintiffs’ claims and Google’s defenses in this case is in the possession of IBM and (Flickr)/Yahoo!’ and it will take reasonable steps to preserve any relevant evidence in its possession.” Meanwhile, the plaintiffs argued that the “indefinite stay will allow Google to ‘continue to use and profit from [Vance’s] biometric data” in violation of BIPA and that “Google cannot prevent the degradation of testimonial evidence.”

The court noted that the plaintiffs’ request for an injunction “does not preclude (it) from issuing a stay.” The court added that since this is still a putative class action, the actual plaintiffs “will not be harmed by a stay of proceedings.” Moreover, the court found that based on the evidence, the harm to the plaintiffs “is not significant enough to outweigh the other Landis factors” because, for example, Vance is the plaintiff in both the instant action and the IBM action, thus Google’s motion “does not require that Vance’s claims be litigated by another party.” Additionally, the court stated that any general risk from delayed litigation “is minimized by the fact that the IBM action is moving quickly, with discovery set to end in July 2021,” so a delay would be minimal as the plaintiff is currently engaged in discovery in the IBM action and Google, as a result, has been notified about its need to preserve evidence. Thus, the court found that a stay will cause minimal harm to the plaintiffs.

The court also considered the possible hardship or inequity from denying the motion. Accordingly, Google argued that “given the overlap in the allegations and claims at issue (in the instant action and the IBM action), there is a significant risk of inconsistent ruling.” Additionally, Google contended that denying the stay will “force it to engage in substantial third-party discovery that could be rendered moot by ruling in the IBM action.” The court agreed, finding that this factor weighs in favor of granting the stay, noting that Google will be burdened without the stay as well as the risk for inconsistent rulings.

Lastly, considering the orderly course of justice and judicial economy, the court found that this factor favors granting the stay because “there are threshold questions across both cases.”

As a result, the court granted Google’s motion, giving the instant action a one year stay until February 12, 2022. However, the court denied Google’s motion to dismiss without prejudice to refile after the stay is lifted.

Google is represented by Perkins Coie. The plaintiffs are represented by Loevy and Loevy as well as Carlson Lynch.