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Facebook argues against class action certification in BIPA lawsuits


Facebook has told a federal judge in California that plaintiffs attempting to certify a pair of related class action suits against the company have failed to show common harm, and that the certification attempts are last-ditch efforts to save their claims, Law360 reports.

The claim was made by Facebook in response to a motion filed last month by users and non-user Frederick Gullen to certify their suits under Illinois’ Biometric Information Privacy Act (BIPA) as class actions. Facebook argues that there is no simple or unified way to show identical harms for the proposed classes, or that it had analyzed and stored facial scans.

If the proposed class members’ biometrics data was not captured by Facebook, they would not be eligible to sue under BIPA. Facebook also referred to an Illinois appellate court decision in Rosenbach v. Six Flags last month that a consumer must show “injury or adverse effect” to qualify as “aggrieved” under BIPA.

“Each plaintiff admitted at his deposition that he has suffered no harm from Facebook’s alleged conduct, and plaintiffs do not give a reason to believe that any class member is different in that respect,” Facebook said, per Law360. “Yet they claim entitlement to billions of dollars based on an aggregation of BIPA’s statutory damages provision. Neither Rule 23 nor federal due process permits certification of a no-injury class seeking an aggregate award in the billions.”

Facebook also contends that the plaintiffs have forwarded a fundamentally different class definition in their latest filing than in the consolidated complaint. The company says the latest filings violate procedure and highlight the problems that have characterized the attempt at class treatment. It also says Gullen’s action is “in shambles,” and that it has no identifying information about non-users who appear in images uploaded to the site, and no feasible way to identify or obtain consent from them.

Both class action certification attempts are expected to be considered at a March 29 hearing.

As previously reported, U.S. District Judge James Donato expressed skepticism of Facebook’s position that harm had not been demonstrated in a November hearing.

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