Christina Spicer  |  February 8, 2016

Category: Consumer News

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shutterflyShutterfly has requested reconsideration in the class action lawsuit alleging the company used facial recognition technology in violation of Illinois state law.

In the original Shutterfly class action lawsuit, the plaintiff, who was not a Shutterfly member, alleged that a Shutterfly user uploaded a photo of him that Shutterfly analyzed and then used biometric data to further identify the plaintiff’s face in other photos without his permission in violation of the Biometric Information Privacy Act (BIPA).

In December, the case moved forward when a federal judge tossed Shutterfly’s motion to dismiss the class action finding that BIPA had not been interpreted judicially. Facebook has been facing similar claims that it violated BIPA, but that case was tossed by a different Illinois judge.

According to the motion for reconsideration filed by Shutterfly, precedent from the Seventh Circuit and the U.S. Supreme Court was missed by U.S. District Court Judge Charles Norgle when he tossed Shutterfly’s motion to dismiss the class action lawsuit before. Shutterfly argued that the case should be dismissed because under current interpretations of the law, BIPA requires additional actions beyond the services Shutterfy offers to bring claims under the state law.

Shutterfly pointed out that in a similar class action against Facebook, a federal judge decided to dismiss the case because the plaintiff could not establish specific-jurisdiction between the defendant and Illinois. Shutterfly contends that the federal judge came to the right decision in that case when it held that specific jurisdiction, or the ability for a case to be held in a certain state, “must be based upon the defendant’s suit-related conduct,” rather than the plaintiff’s actions in the state where the plaintiff wants the case to be tried. Shutterfly argued that this Seventh Circuit interpretation protects companies from being sued in any state under any state law

Shutterfly argued that its actions in Illinois should not subject it to state laws like BIPA. “First,” Shutterfly argues, “[Shutterfly’s actions in Illinois] lack any relationship to Shutterfly’s online photo-tagging feature — the sole basis on which plaintiff is pursuing his claim under BIPA.” “Second,” Shutterfly continues, “because plaintiff underscores that he is not a Shutterfly user and does not have a Shutterfly account, he could not even have ordered those goods and services, nor does he allege that they were ever provided to him.”

“None of the conduct described in plaintiff’s complaint — both related and unrelated to his claim — is targeted towards Illinois specifically,” said Shutterfly’s motion for reconsideration.

Shutterfly argued that, alternatively, the class action lawsuit should be subject to an interlocutory appeal. An interlocutory appeal would allow Shutterfly to appeal Judge Norgle’s decision to toss its motion to dismiss prior to the end of the litigation.

Lead plaintiff Brian Norberg is represented by David P. Milian and Frank S. Hedin of Carey Rodriguez O’Keefe Milian Gonya LLP and Katrina Carroll of Lite DePalma Greenberg LLC.

The Shutterfly Biometric Data Class Action Lawsuit is Brian Norberg v. Shutterfly Inc., et al., Case No. 1:15-cv-05351, in the U.S. District Court for the Northern District of Illinois.

UPDATE: On Mar. 10, 2016, Shutterfly filed a motion asking the court to compel arbitration in this class action lawsuit after an investigation found that the unidentified Shutterfly user who uploaded the photos online is the plaintiff’s wife.

UPDATE 2: On Mar. 16, 2016, Shutterfly asked that a federal court judge issue a stay on this proposed class action lawsuit until it rules on its recent request for the judge to compel arbitration.

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2 thoughts onShutterfly Asks for Reconsideration in Biometric Data Class Action

  1. Top Class Actions says:

    UPDATE 2: On Mar. 16, 2016, Shutterfly asked that a federal court judge issue a stay on this proposed class action lawsuit until it rules on its recent request for the judge to compel arbitration.

  2. Top Class Actions says:

    UPDATE: On Mar. 10, 2016, Shutterfly filed a motion asking the court to compel arbitration in this class action lawsuit after an investigation found that the unidentified Shutterfly user who uploaded the photos online is the plaintiff’s wife.

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