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Facebook Tells 9th Cir. to Block Users’ Privacy Class Suit

Dec. 10, 2018, 6:36 PM

An Illinois class shouldn’t have been certified in a suit alleging Facebook Inc. used photos and other data in violation of a state biometric-privacy law, the company told the U.S. Court of Appeals for the Ninth Circuit.

The class didn’t show any harm from the use of its data, and class certification wasn’t appropriate, Facebook argues in a Dec. 7 filing.

The social media platform’s Illinois users allege its photo-scanning technology violates a new law by gathering and storing biometric data without users’ consent.

While judges and juries rarely award the maximum in statutory damages, the suit potentially exposes the company to billions of dollars in liability. The Illinois Biometric Information Privacy Act allows damages of $1,000 to $5,000 each time someone’s image is used without consent.

Facebook is appealing a federal district court’s April 16, 2018 certification of a class that could include upwards of 6 million members.

The federal judge, in that ruling certifying the class, said a key Illinois appellate ruling indicates that injury to a privacy right is enough to make a person “aggrieved” under the statute.

“As the Court has already found, there is no question that plaintiffs have alleged that intangible injury,” the lower court said. And that’s an issue that doesn’t have to be proven individually, the court said.

But Facebook argues the plaintiffs conceded they suffered no monetary, emotional, reputational, or other harm from Facebook’s use of photos they appeared in.

Because they didn’t suffer harm, they lack constitutional standing to sue, Facebook says in a lightly redacted brief filed in the public docket Dec. 7. An unredacted version has been filed under seal.

And the case features two important questions that aren’t common to the class, it says among other arguments against certification. Each class member must show, individually, that “the majority of circumstances” related to his or her claim occurred in Illinois, Facebook said.

Edelson PC and others represent the plaintiffs.

Mayer Brown LLP represents Facebook.

The case is Patel v. Facebook, Inc., 9th Cir., No. 18-15982, brief 12/7/18.

To contact the reporter on this story: Martina Barash in Washington at

To contact the editors responsible for this story: Jo-el J. Meyer at; Steven Patrick at