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Facebook Taking Biometric Privacy Fight to the Supreme Court (1)

Oct. 25, 2019, 2:04 PM

Facebook Inc. plans to appeal lower court decisions greenlighting a biometric privacy lawsuit against it to the U.S. Supreme Court, escalating a fight over who should be able to sue.

The social media giant has asked the U.S. Court of Appeals for the Ninth Circuit to stay its decision not to overturn a California federal district court ruling that plaintiffs can sue the company under the Illinois Biometric Information Privacy Act.

Circuit courts around the country have differed on the standing question, but federal courts in California, including the Ninth Circuit, have tended to side with plaintiffs. Facebook wants the Ninth Circuit to pause the case while it prepares to ask the Supreme Court to review the standing question.

Facebook contended that its appeal will raise “substantial questions” about whether plaintiffs can bring claims under BIPA simply by showing that it was a statutory “invasion of privacy,” in its Oct. 24 Ninth Circuit filing.

“Given this clear split with multiple courts of appeals on an important question of Article III standing, there is a substantial chance that the Supreme Court will grant certiorari on this issue,” Facebook wrote.

The Ninth Circuit is likely to pause the case because the standing issue is ripe for review, privacy attorneys said. Other issues Facebook raised in its motion, such as the cost of proceeding with a costly trial resulting in a ruling that could be overturned, may also move the court to stay the case pending the Supreme Court’s decision to grant a review, attorneys said.

“The Article III standing question is the issue that will compel the Ninth Circuit to pause the case during Facebook’s appeal to the Supreme Court,” Mark McCreary, chief privacy officer and partner at Fox Rothschild LLP in Philadelphia, said. “Moving forward with a very costly trial and possible award that may be subsequently overturned, that may convince the Ninth Circuit to wait until the Supreme Court rules,” he added.

The Supreme Court generally takes up cases that involve circuit splits or the possibility of large financial penalties, academics said. Facebook said in its filing that it could face billions of dollars in statutory damages if the Supreme Court doesn’t review the case, because BIPA allows for $1,000 for $5,000 per violation.

“The higher the liability, the more likely the Supreme Court will intervene,” Peter Ormerod, assistant professor of business law at Western Carolina University, said.

Edelson PC, counsel for the plaintiffs, didn’t immediately respond to a request for comment.

The case is Patel v. Facebook Inc., 9th Cir., No. 18-15982, motion to stay mandate filed 10/24/19.

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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