Clearview AI biometric data privacy suit sent back to state court

Lawyer fees in Facebook BIPA deal may be $110M

biometric facial recognition

A biometric data privacy lawsuit against Clearview AI will head back to state court after the Seventh Circuit Court of Appeals ruled the suit had been correctly remanded by a lower court, Law360 writes.

Plaintiffs in the suit made narrow claims to avoid Article III standing in federal court, as they are entitled to do, the three-judge panel wrote. Just as plaintiffs can limit defendants to those in a certain jurisdiction, the judges wrote, the Illinois residents are free to pursue the “bare statutory violations” allowed under the state’s Biometric Information Privacy Act. Doing so means they do not have to allege or prove injury from the alleged violation.

The judgement was the first opportunity for the court to consider whether a plaintiff must proceed federally with a claim under BIPA section 15(c), which stipulates that businesses cannot share or profit from individuals’ biometric data. Allegations under section 15(a) and (b), which relate to policy disclosures and obtaining written consent, would create federal standing, allowing Clearview to have a trial conducted in federal court.

The court also noted that standing depends heavily on the specific allegations in the complaint in practically any BIPA claim, with Judge David Hamilton confessing he has been unable to discern “from these different lines of cases a consistently predictable rule or standard.”

The plaintiffs’ attorney lauded the decision, suggesting the case was exactly the type the Illinois legislature drafted BIPA for.

Clearview had previously attempted to have the suit combined with claims against it in New York.

Judge considers $110M lawyers fee in Facebook BIPA suit

The attorneys who negotiated a $650 million settlement with Facebook in its BIPA suit have requested a fee of $110 million in recognition of the hours spent on the case, as well as the novelty of the dispute, according to a report by Law.com.

The settlement was originally for $550, and increased to meet U.S. District Court Judge James Donato’s approval.

Paul Geller of Robbins Geller cited the “exceptional results” and lack of precedence justifies the 16.9 percent fee. He also noted a claims rate of around 22 percent as another reason for the high fee. Roughly 1.6 million class members are expected to receive close to $350 in damages.

Donato said the amount is reasonable, but also noted that attorneys often scale down their fee requests when such large damages amounts are awarded. The judge asked why a $75 million fee would not be more appropriate. Donato acknowledged that claims rates often do no top five percent.

NY and FTC measures could signal more biometric data restrictions

Recent actions taken by the legislature of New York State and the Federal Trade Commission reveal a trend biometrics vendors and their customers need to be aware of, Law360 suggests in another article.

New York’s legislature recently began considering a bill to limit police use of facial recognition, having enacted the SHIELD Act to limit the biometric technology’s use in schools. The FTC, for its part, declared an intention to crack down on facial recognition in surveillance as part of a recent ruling on Paravision’s previous data-collection practices.

The New York proposal is the fourth on biometric data privacy in the state tabled since 2018.

Mary J. Hildebrand of Lowenstein Sandler LLP told Law360 that the measures suggest more biometric privacy laws are coming.

“Biometric technologies leapt out ahead, and now legislatures have become aware of it and are starting to wonder what reasonable boundaries they want to place on this technology,” comments Paul Hasting LLP Privacy and Cybersecurity Practice Partner Aaron Charfoos.

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