Shutterfly Biometric Data Class Action Seeks to Compel Arbitration

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Last week, Shutterfly Inc. and ThisLife.com Inc. filed a motion asking the court to compel arbitration in a class action lawsuit accusing the companies of “tagging” photos of individuals without Shutterfly accounts in violation of the Illinois Biometric Information Privacy Act (BIPA).

According to Shutterfly and ThisLife, plaintiff Brian Norberg alleged in his photo tagging class action lawsuit that an unidentified Shutterfly user uploaded photographs of him and “tagged” those photos with his name.

“An investigation into the circumstances of this case has revealed that the unidentified Shutterfly user is … plaintiff Norberg’s then-fiancée and now-wife,” Shutterfly states in its motion to compel arbitration.

“The facts give rise to a strong inference that Mr. Norberg and his now-wife acted in concert to generate the claims in this lawsuit,” Shutterfly continues.

Shutterfly states that Norberg’s fiancée added photos to ThisLife on June 7, 2015, just 10 days before Norberg filed the biometric data class action lawsuit against Shutterfly and ThisLife.

“It is highly unlikely that in ten days, Mr. Norberg (1) discovered an alleged violation of the BIPA and (2) hired a lawyer who then (3) drafted and filed a complaint,” Shutterfly argues. “The most logical explanation is that the claims were already in the works before [Norberg’s then-fiancée] joined ThisLife, and that [she] signed up for ThisLife and loaded the photos of her then-fiancé (now husband) in order to generate Mr. Norberg’s claims under the BIPA.”

Shutterfly argues that Norberg’s then-fiancée accepted the Terms of Service for both ThisLife and Shutterfly, and that by doing so, she agreed to arbitrate all disputes related to the companies’ services. They assert that Norberg should also be held to the arbitration agreement because he and his then-fiancée “engaged in concerted misconduct by acting together to manufacture this lawsuit” and worked together to circumvent the arbitration agreement.

The Shutterfly class action lawsuit alleges that after Norberg was “tagged” in a photo that was uploaded to the site, Shutterfly scanned his face and created a “face template.” When other photos of Norberg were added to the site, Shutterfly allegedly suggested the user tag Norberg’s name in the photos.

Norberg claims he never gave Shutterfly permission to collect his biometric identifiers, which include the “geometric data relating to the unique contours of his face and the distances between his eyes, nose and ears.”

By filing the Shutterfly class action lawsuit, Norberg seeks to represent a Class of non-Shutterfly users in Illinois who had their face templates collected by Shutterfly.

Shutterfly and ThisLife have been vigorously fighting this biometric data class action lawsuit. In September 2015, they filed a motion to dismiss the Shutterfly class action lawsuit, but their motion was denied in December. Earlier this year, Shutterfly asked the court to reconsider their bid to dismiss the class action lawsuit.

Norberg is represented by David P. Milian and Frank S. Hedin of Carey Rodriguez Milian Gonya LLP and Katrina Carroll and Kyle Shamberg 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. 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.