In re Facebook Biometric Information Privacy Litigation

Background

The certified class consisted of Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011. The class alleged that Facebook’s “Tag Suggestions” program collected and stored biometric data—digital scans of users’ faces—without the notice or consent required by Sections 15(a) and 15(b) of the Illinois Biometric Information Privacy Act.

The court had previously concluded that a violation of the Act was enough to establish a real injury for purposes of federal standing. It also held that Illinois law applied. The court had denied summary judgment because factual disputes remained about Facebook’s servers, whether its technology collected a legally covered face scan, whether users consented, and whether Facebook acted negligently, recklessly, or in good faith.

Settlement and Notice

The final settlement established a $650 million non-reversionary common fund. After payment of administration expenses, taxes, attorneys’ fees and costs, and incentive awards, the balance would be distributed proportionally to class members who submitted valid claims. The court stated that each compensated class member would receive at least $345.

For users who had not affirmatively opted in or consented to biometric scans, Facebook agreed to set its Face Recognition default to “off.” It also agreed to delete existing stored face templates for class members unless it obtained express consent after a separate disclosure, and to delete templates of class members with no Facebook activity for three years. The court noted that Facebook’s product manager testified that the default-setting change would be global.

The court found the notice program thorough and effective. Notice was sent through email, Facebook notifications, newspapers, a settlement website, and internet advertising. About 22% of class members submitted claims, compared with the lower rates the court described as typical for consumer class actions. The settlement released only claims arising from or related to the alleged biometric-data collection and facial-recognition conduct at issue in the litigation. It did not release claims against Instagram, WhatsApp, or Oculus under the Illinois Act.

Final Approval

Under Federal Rule of Civil Procedure 23, a certified class settlement may be approved only if it is fair, reasonable, and adequate. Judge Donato found that the class representatives and counsel adequately represented the class, the settlement was negotiated at arm’s length, the relief was adequate in light of the risks of trial and appeal, and class members were treated equitably.

The court emphasized the factual and legal risks facing the class, including disputes about the Illinois Act’s coverage, consent, Facebook’s state of mind, class certification, and standing. It also noted that a trial could produce no recovery and that a very large statutory-damages award could create separate legal risks. The court rejected the objectors’ argument that the settlement was inadequate because it was less than the maximum theoretical statutory damages.

Final approval of the class action settlement was granted. The court ordered the 109 people who opted out to be excluded from the settlement and overruled all objections.

Attorneys’ Fees and Costs

Class counsel requested $110 million in fees, characterized as 16.9% of the $650 million fund. The court found that request excessive for a fund of this size. Counsel had documented 30,103.80 hours of work, and their lodestar—the hours multiplied by reasonable hourly rates—was $20,685,153.20. The requested fee would have produced a multiplier of 5.317 over the lodestar, which the court found too high.

The court awarded $97.5 million in attorneys’ fees, equal to 15% of the common fund. Fifteen percent was held back pending a later post-distribution accounting, while $82,875,000 was authorized for immediate payment. The court also granted reimbursement of $915,454.37 in litigation expenses and approved $1,828,009.89 in settlement-administrator costs.

Incentive Awards and Disposition

The court reduced the requested incentive awards for the three named plaintiffs from $7,500 each to $5,000 each. The court recognized that the plaintiffs had been deposed at least twice and had each reported spending 55 to 60 hours supporting the litigation, but found $7,500 too high compared with the amounts other class members would receive.

The remaining settlement fund was ordered distributed proportionally to class members who submitted valid claims. The court stated that the case would be closed, while allowing counsel to file the required post-distribution accounting.