Past and current Illinois residents who were included in photos posted to Shutterfly could be in line for a bit of money, under a new deal ending class action lawsuit accusing the photo-sharing platform of violating Illinois’ biometric privacy law.
Just how much money will be determined based on how many people submit claims for a cut of the $6.75 million settlement, which has been submitted to a Cook County judge for approval.
The lawyers who brought the lawsuit, however, are poised to claim as much as 35% of the total, or more than $2.3 million, according to settlement documents.
The case has been pending in Chicago courts for more than two years. Attorneys with the firms of Carlson Lynch, of Chicago; Ahdoot & Wolfson, of Burbank, Calif.; and Carey Rodriguez Milian, of Miami, filed the lawsuit in Cook County Circuit Court in June 2019.
The lawsuit was brought on behalf of named plaintiffs Vernita Miracle-Pond and Samantha Paraf. But the plaintiffs sought to expand the action to include potentially more than 950,000 Illinois residents whose likenesses may have been included in photos posted to Shutterfly since 2014.
The lawsuit accused Shutterfly of violating the Illinois Biometric Information Protection Act (BIPA.) According to the lawsuit, Shutterfly scanned the photos and created templates of the facial geometry of people depicted in the photos. The company then used that information to track and tag their photos across its platform.
However, according to the lawsuit, Shutterfly took those actions without first securing written permission from its users in Illinois, or from anyone else included in those photos, and without providing notices allegedly required by the Illinois BIPA law, concerning how the face scans would be stored, used, shared and ultimately destroyed.
According to court documents, Miracle-Pond has been a Shutterfly user since 2015, while Paraf has never been a Shutterfly customer.
Shutterfly contested the lawsuit for more than year. The company removed the case to federal court in Chicago, where it then worked to persuade a federal judge to either send the claims to arbitration, or dismiss the case.
The case generated some friction in court, as the plaintiffs accused Shutterfly of improperly updating their terms of service agreement and emailing Shutterfly users in the fall of 2019 that, if they did not close their accounts by Oct. 1, 2019, they would have effectively agreed to the new terms of service, which now included mandatory arbitration of all claims.
The plaintiffs asserted this represented a surreptitious attempt to subvert the scope of the class action. The judge brushed off those claims in an order issued in May 2020.
In that May order, Shutterfly also succeeded in winning a court order to send Miracle-Pond’s claims to arbitration, under the Shutterfly users’ agreement.
However, that order was later clarified to only apply to Miracle-Pond. And a federal district judge then denied Shutterfly’s request to dismiss the rest of the case.
The two sides then entered settlement talks. After striking a deal, they agreed to send the case back to Cook County court for administration of the settlement.
The parties submitted the settlement for approval in May 2021. Cook County Judge Raymond Mitchell granted preliminary approval for the deal on June 9.
A final approval hearing is scheduled for Sept. 8.
Under the deal, Shutterfly agreed to pay $6.75 million. From that sum, attorneys will request up to 35% in attorney fees.
After subtracting settlement administration costs, about $4 million could be left to be apportioned among eligible Shutterfly users.
According to settlement documents, the settlement could include any Illinois resident whose likeness was pictured in a photo posted to Shutterfly since 2014.
To win a cut of the settlement, Shutterfly users must submit a valid claim, which can be done through a settlement website until Aug. 16.
However, exactly how much each claimant may receive will depend on various factors, particularly how many other people file valid claims. The settlement documents offer the example of $134 per claim, based on 30,000 valid claims.
Settlement documents, however, indicate as many as 954,000 people could be eligible to submit claims.
Plaintiffs have been represented by attorneys Katrina Carroll and Nicholas Lange, of the firm of Carlson Lynch; Tina Wolfson, Robert Ahdoot, Bradley K. King and Henry J. Kelston, of Ahdoot & Wolfson; and David P. Milian, of Carey Rodriguez Milian.
Shutterfly has been represented in the case by attorneys Lauren R. Goldman, Michael Rayfield, John Nadolenco and Matthew D. Provance, of the firm of Mayer Brown, with offices in New York, Los Angeles and Chicago.