Facebook Biometric Case Halted Pending Supreme Court Appeal (1)

Oct. 31, 2019, 2:17 PM

Facebook Inc. convinced the Ninth Circuit to stay a biometric privacy class action while it asks the U.S. Supreme Court to weigh whether plaintiffs had the right to sue.

The U.S. Court of Appeals for the Ninth Circuit stayed its decision upholding a California federal district court ruling that plaintiffs had standing to sue under the Illinois Biometric Information Privacy Act. It upheld a U.S.District Court for the Northern District of California ruling that intangible harms, like the violation of a privacy right, are enough to bring such claims.

Facebook’s Supreme Court appeal could help settle how plaintiffs bring privacy and data breach cases.
A high court decision backing up the Ninth Circuit could create an easier path for plaintiffs bringing privacy claims. The Ninth Circuit’s decision would also stand if the Supreme Court doesn’t hear the case.

Federal courts of appeal are now split over how much harm plaintiffs must show to bring claims in federal court.

Some, including the Ninth Circuit, argue that intangible harms are enough. Others, including the Second Circuit, have said plaintiffs must show monetary, emotional, reputational, or other tangible harms.

Facebook may be on the hook for massive damages if it doesn’t succeed at the Supreme Court and plaintiffs have their way at trial. The Illinois law allows for $1,000 to $5,000 in statutory damages, potentially putting Facebook on the hook for billions if they lose.

The case would be stayed throughout the duration of the appeal if the Supreme Court takes up the case, the Ninth Circuit wrote Oct. 30. The stay would be lifted “immediately” if the Supreme Court denies review, the court wrote.

Plaintiffs allege Facebook collected biometric data on its Illinois users without their consent in violation of BIPA. Facebook has argued that plaintiffs don’t have constitutional standing to sue because they didn’t suffer tangible harms, like monetary injuries.

Edelson PC and others represent the class. Mayer Brown LLP represents Facebook.

The case is Patel v. Facebook, Inc., 9th Cir., No. 18-15982, motion to stay granted 10/30/19.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

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