Molander v. Google LLC

Background

Brandon Molander sued Google LLC under the Illinois Biometric Information Privacy Act (BIPA). He alleged that Google collected biometric identifiers and biometric information from photographs uploaded by him and others without first providing notice and obtaining consent, in violation of BIPA Section 15(b). He also alleged that Google possessed such information and failed to publish a written policy for destroying it, in violation of Section 15(a). Molander sought to represent a class of people whose biometric identifiers were obtained by Google from photographs uploaded within Illinois.

The opinion states that Molander was represented by Ahdoot & Wolfson, PC and Carey Rodriguez Milian Gonya LLP. It also states that the same law firms had previously filed related federal and state actions involving Google Photos, the same BIPA claims, and the same proposed class. The earlier federal action had been extensively litigated, including fact discovery, and the district court granted Google summary judgment based on lack of Article III standing. That ruling was on appeal in the Seventh Circuit when Google moved in this case to dismiss, transfer, or stay it.

First-to-file rule

The first-to-file rule is a court-created principle that generally allows a court to defer to an earlier-filed case involving substantially the same parties and issues. Courts consider the timing of the actions, the similarity of the parties, and the similarity of the issues.

Judge Davila found that all three factors favored applying the rule. The earlier federal action was filed in March 2016, about four years before this case. The proposed classes were identical, so the parties were sufficiently similar even though the named plaintiff in this case differed. The issues were also identical because the cases asserted the same BIPA claims against Google, based on the same facts, and sought the same relief.

Arguments against applying the rule

Molander argued that the earlier federal court might lack subject-matter jurisdiction over his Section 15(a) claim under Seventh Circuit law. The opinion explains that the Seventh Circuit had held that a plaintiff could have standing for a Section 15(b) claim but not for the particular Section 15(a) theory at issue there. The Ninth Circuit, by contrast, had held that a Section 15(a) violation was sufficiently concrete to establish an injury in fact, although the scope of that ruling was not fully clear.

The court rejected this argument as a reason to avoid the first-to-file rule. It noted that the plaintiffs in the earlier action might be able to amend their Section 15(a) claim, and that the earlier case could be reconsidered after a possible remand from the appeal. The court also rejected arguments that the rule should not apply because the earlier case was on appeal or because of a forum-selection clause. It reasoned that the earlier case had been extensively litigated and that failing to apply the rule could duplicate years of work and create conflicting judgments.

Disposition

Judge Davila granted Google’s motion to stay under the first-to-file rule. The court did not decide whether Google violated BIPA or resolve the parties’ standing arguments on the merits. Instead, it stayed this case pending resolution of the earlier federal action, ordered the parties to file a joint status statement every six months, and directed the Clerk to administratively close the file.