The Ninth Circuit should reconsider its decision permitting Facebook Inc. to immediately appeal class certification in a high-stakes privacy suit, class representatives told the court Jan. 31.

A new Illinois Supreme Court ruling undermines the basis of the court’s grant of interlocutory review, and the appeal should therefore be dismissed, they say.

Facebook’s Illinois users allege its photo-scanning technology violates a new state law by gathering and storing biometric data without users’ consent.

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 district court said an Illinois appellate ruling indicated that injury to a privacy right is enough to make a person “aggrieved” under the statute.

But the plaintiffs conceded they suffered no monetary, emotional, reputational, or other harm from Facebook’s use of photos they appeared in, Facebook argued. They therefore lack constitutional standing to sue, Facebook said in a brief to the U.S. Court of Appeals for the Ninth Circuit Dec. 7.

The Illinois Supreme Court, however, issued an opinion Jan. 25 confirming that the district court’s reading of the word “aggrieved” in the statute was correct, the consumers say. Rosenbach v. Six Flags Entm’t Corp. also removed any doubt “as to whether consequential harm beyond the statutory violations is required,” they argue.

For intangible injuries such as privacy violations, courts should consider traditional English or American legal harms and “the judgment of the legislature,” the plaintiffs say. Facebook conceded the first of these and focused on the second because privacy violations have long been actionable, they say.

Facebook spokeswoman Rochelle Nadhiri declined to comment.

Robbins Geller Rudman & Dowd LLP, 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 1/31/19.