Mary Smigielski Quoted by The Recorder in BIPA Litigation Article
Chicago, Ill. (March 2, 2020) - Chicago Partner Mary A. Smigielski was recently quoted in an article from The Recorder (part of Law.com) titled, “Is California a Better Venue for BIPA Litigation Than Illinois?” The article discusses whether the Northern District of California will become the venue of choice for lawyers filing claims under the Illinois Biometric Information Privacy Act (BIPA). Earlier this year, Facebook proposed a $550 million class action settlement in the Northern District of California in a matter involving alleged violations of out-of-state legislation. Since then, two proposed BIPA class actions against Google, related to the company’s use of facial recognition, have also been filed in this district.
As the article notes, some privacy lawyers believe that Facebook’s enormous settlement will encourage plaintiffs’ attorneys to file future lawsuits in California’s federal courts, while others maintain that factors such as contractual obligations will determine where BIPA cases are litigated. Privacy attorneys have also pointed out that plaintiffs who file actions in California will not be sent back to state court because, in the Facebook matter, the Ninth Circuit held that a violation of the BIPA statute and the retention of a face template constitutes enough harm to trigger standing. As such, parties avoid Article III standing issues and do not need to engage in arguments over venue when tech companies are sued in their home state.
Nevertheless, questions concerning class action certification in the Facebook case still exist because the case settled before reaching these certification issues. Ms. Smigielski, who is a co-chair of Lewis Brisbois’ Illinois BIPA Practice, explained that the Northern District of California could be a venue to clarify jurisdictional questions related to BIPA litigation.
“I think those are the types of questions that as this evolves, and depending on the judge, there might be a more rigorous analysis of the standards of individual inquiries,” said Ms. Smigielski.
By phone interview while traveling in Miami, Florida, Ms. Smigielski provided The Recorder with a jurisdictional hypothetical in real time: “If I had an Android phone, and I took a photo, I’m uploading that from Miami. I’m an Illinois citizen, it gets uploaded to a server in let’s say Kansas. What the heck does that have to do with Illinois?” Ms. Smigielski used this example to illustrate how various servers and technologies involved in BIPA matters complicates the issue of jurisdiction. “Obviously the tech companies are based in their neck of the woods, and to the extent they have the appropriate connection with BIPA to maintain jurisdiction, I think they absolutely would play a huge role,” she added.
You can read the full article on The Recorder (subscription is required).