In re Facebook Biometric Information Privacy Litigation

Background

Plaintiffs Nimesh Patel, Adam Pezen, and Carlo Licata brought a consolidated class action against Facebook, Inc., under the Illinois Biometric Information Privacy Act. The complaint alleged that Facebook violated Sections 15(a) and 15(b) by collecting and storing class members’ biometric information—face scans—without prior notice or consent through its Tag Suggestions program.

The court previously determined that Illinois law applied and that the plaintiffs had stated a claim. It also ruled that the plaintiffs alleged a sufficiently concrete injury to establish constitutional standing, certified the class, and denied the parties’ cross-motions for summary judgment because genuine disputes of material fact remained. After the court initially denied preliminary approval of a proposed settlement without prejudice, the parties revised the agreement to address concerns about damages, the conduct remedy, the release, and notice.

Settlement Terms

The revised agreement requires Facebook to pay $650 million into a non-reversionary cash fund. Settlement-administration expenses, taxes, class-representative incentive awards, and attorneys’ fees will be paid from the fund, with the balance distributed on a pro rata basis to class members who submit approved claims. The revised fund was $100 million greater than the amount in the earlier proposal.

Facebook also agreed to set its Face Recognition default setting to “off” and delete existing stored face templates for class members unless it obtains their express consent after separately disclosing how the templates will be used. The agreement includes exceptions for certain users who signed up after September 3, 2019, users who manually enabled Face Recognition, and class members who have had no Facebook activity for three years. The agreement excludes from the released parties entities that did not use Tag Suggestions, including Instagram, Inc., WhatsApp Inc., and Oculus VR Inc.

Court’s Analysis

Under Federal Rule of Civil Procedure 23(e), a class settlement requires court approval after a hearing and a finding that it is fair, reasonable, and adequate. The court concluded on a preliminary basis that the revised agreement resulted from serious, informed, and noncollusive negotiations. The court considered the increased settlement amount, the risks and factual disputes that could affect a trial, and the prospective changes to Facebook’s facial-recognition practices. The court found that the monetary and conduct remedies appeared sufficient for preliminary approval.

The court approved the settlement class definition: Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011. It also approved Patel, Pezen, and Licata as class representatives; Edelson PC, Robbins Geller Rudman & Dowd LLP, and Labaton Sucharow LLP as class counsel; and the proposed exclusions of judicial staff and other potentially interested persons.

The court approved the proposed notice and claim-form materials, which included email, Facebook news-feed and “jewel” notices, publication notice, a settlement website, targeted internet advertising, and required notice under the Class Action Fairness Act. The parties were directed to report every 14 days on notice efforts and to propose improvements based on the collected data. Gilardi & Co. LLC was appointed settlement administrator, and the American Civil Liberties Union of Illinois was preliminarily approved as a possible recipient of undistributed funds through a cy pres arrangement.

Disposition and Next Steps

Judge James Donato granted preliminary approval of the amended stipulation of class action settlement. This was preliminary approval, not final approval of the settlement. The court set November 23, 2020, as the claims and objection/exclusion deadline and January 7, 2021, as the final approval hearing date. The court reserved decisions on class-representative incentive awards and attorneys’ fees and costs for the final approval hearing.