Shutterfly Class Action Requests Stay in Biometric Data Lawsuit

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Shutterfly asked that a federal court judge issue a stay on a proposed class action lawsuit against the company until it rules on its recent request for the judge to compel arbitration. The lawsuit alleges that Shutterfly uses facial recognition technology to scan consumers’ uploaded images for biometric data without their consent.

The photo storage and product company stated that the Federal Arbitration Act prevents litigation and discovery to proceed in a dispute when a motion to compel arbitration is pending. Discovery had already started in the Shutterfly lawsuit, “[b]ut all of the effort and expense involved in the discovery process and other pretrial matters would be for naught if—as Shutterfly has shown in its motion to compel arbitration…—plaintiff is required to arbitrate his claims,” Shutterfly argued.

“That is why the Federal Arbitration Act (“FAA”) forbids litigation over and discovery into the merits of a dispute during the pendency of a motion to compel arbitration,” Shutterfly continued. “Under the FAA, once a motion to compel arbitration has been filed, a court’s role is limited to resolving that motion.”

Norberg originally filed the lawsuit in June 2015 alleging that the company violated the Illinois Biometric Information Privacy Act (BIPA) by using technology to analyze faces using biometric identifiers without the consent of the individuals being scanned and tagged in the photos.

Shutterfly’s motion to dismiss the lawsuit was rejected in late December, allowing the claims to move forward. In February of this year, Shutterfly asked for reconsideration to have lawsuit dismissed, citing the recent dismissal of a lawsuit against Facebook that alleged similar claims about biometric data and privacy.

Earlier this month, Shutterfly asked the judge to compel arbitration in the suit after allegedly discovering that the previously unidentified Shutterfly user who uploaded photos of Norberg and tagged him in photos was his wife (his fiancée at the time of the lawsuit filing). Shutterfly claimed that the duo acted together to bring forth the claims in the lawsuit.

Shutterfly argued that Norberg’s wife accepted the terms of service before uploading the photos to the site, and agreed to arbitrate disputes by consenting to the terms. The company asked the court to compel Norberg to arbitrate his claims, saying his wife’s agreement to arbitrate is enforceable under the Federal Arbitration Act.

Shutterfly also claimed that Norberg said a Shutterfly user uploaded a picture of him while making a wedding invitation, and concluded that it must have been Norberg’s wedding invitation. Shutterfly said that according to the couples’ wedding website, one of Norberg’s attorneys was a groomsman in the wedding and was one of his longtime friends.

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.