People in Illinois whose face appeared in a photo on Google’s Photos app can now begin submitting claims for their share of Google’s $100 million settlement to end a biometrics privacy class action lawsuit.
Recently, administrators for the massive settlement launched a public website, through which potential members of a class of perhaps as many as 1.4 million Google Photos users could claim a payout worth as much as $400 each.
According to the website, users have until Sept. 24 to submit an eligible claim.
Robert Ahdoot
| ahdootwolfson.com
Eligible claimants could include anyone who appeared in a photo posted to Google Photos, from May 1, 2015, to April 25, 2022, while a resident of Illinois.
The final payout per claim will depend on the number of eligible claims received. According to documents filed in court by plaintiffs in support of the settlement, more than 1 million people could be eligible. However, they said typically about 20% of potentially eligible claimants actually file claims in such cases.
If that pattern holds true in this case, they said the final payouts would be expected to range from $200-$400 per claim. However, they advised the payouts could also be less, if more people than expected file eligible claims.
Attorneys who led the class action against Google are expected to ask the court to allow them to claim up to $40 million of the settlement as legal fees, according to the settlement website.
Any payout would come about 90 days after the settlement receives final approval from the court, or from the time all appeals may be resolved.
A final approval hearing is scheduled in Cook County Circuit Court on Sept. 28. However, that date could change, and appeals of that approval could extend the payment process many weeks or months beyond that date.
The payout process is expected to be roughly similar to the process used to administer a $650 million settlement of a similar biometrics class action lawsuit against Facebook, under which Illinois resident users of the social media platform were invited to submit claims for a cut of the settlement.
Months after those claims were submitted, appeals were resolved in favor of the settlement, and checks for about $400 each were mailed to successful claimants.
It also would rank as one of the largest such BIPA settlements to date.
The case stretches back nearly six years, when attorney Robert Ahdoot, of the firm of Ahdoot & Wolfson, of Burbank, California, and others with him, filed suit in Chicago federal court against Google.
Like the similar litigation against Facebook, the Google lawsuit asserted Google, through its Photos app, had scanned the faces of people imaged in photos uploaded to the app, without first obtaining written consent from those people, and without providing certain notices, allegedly required by the BIPA law, concerning how the scans would be stored, used, shared and ultimately destroyed.
The lawsuit against Google marked one of the first class actions launched in Illinois courts under the BIPA law. In the years since, thousands of other BIPA-related class actions have followed in Cook County court and other courtrooms in Illinois and other states.
Some of the lawsuits have targeted tech and social media companies, like Facebook and Google. But most of the lawsuits have taken aim at employers and smaller businesses, usually over claims those companies improperly required their employees to scan their fingerprints to verify their identity when punching the clock to begin and end work shifts.
And those class actions have left employers and other companies facing potentially ruinous court-ordered financial losses.
Under the BIPA law, plaintiffs are allowed to demand damages of $1,000 to $5,000 per violation. Courts have interpreted the law to define individual violations as each time a company scans people’s biometric identifiers, such as fingerprints, retinas or facial geometry.
Multiplied over an untold number of scans, this places businesses of even modest sizes and means at risk of potentially crippling judgments.
Presently, the Illinois Supreme Court is considering a case which could place more stringent limits on the ability of plaintiffs to extract such potentially massive payouts.
But while that decision has remained pending, a number of businesses have opted to settle, rather than roll the dice on such a risk.
While the huge Facebook settlement grabbed headlines, many other cases, particularly against employers, have resulted in settlements ranging from hundreds of thousands of dollars to as much as $50 million.
However, throughout those intervening years, the class action against Google has continued, as the courts have grappled with the question of whether the plaintiffs actually suffered any harm that should allow them to demand such huge payouts.
Initially a Chicago federal judge said they could not, as he determined violations by Google of the technical provisions of the BIPA law merely left plaintiffs “feeling aggrieved.” That, he said, does not grant them standing under the standard set by the U.S. Supreme Court, which said plaintiffs need to demonstrate a “concrete injury” to press their claims in federal court.
The Illinois Supreme Court, however, reached a very different conclusion. In a different case in 2019, the state high court ruled plaintiffs don’t need to prove they were ever harmed in any real way to press claims under BIPA.
Rather, the Illinois Supreme Court said a technical violation of the BIPA law was sufficient to allow them to demand any amount of damages allowed by the law. And the state justices showed no sympathy for companies accused of violating the BIPA law, saying they determined any costs to businesses to be “insignificant” compared to the risk of unauthorized biometrics scans.
Defense lawyers at the time said the ruling converted the BIPA law into a “gotcha” statute, enabling plaintiffs lawyers to rake in windfall payments over harmless violations.
Armed with that decision, known as Rosenbach v Six Flags, plaintiffs lawyers have in the past two years successfully persuaded federal judges to allow them to send BIPA cases that would otherwise have ended in federal court, back to Cook County and other Illinois state courts, where the significantly looser standing requirements hold sway.
Federal judges have particularly determined that certain claims under BIPA cannot be heard in federal court, but can be returned to state court, on standing grounds.
The plaintiffs in the Google case won just such a remand, as the bulk of their lawsuit was severed by a federal judge, and sent back to Cook County.
The success of that maneuver led to settlement talks.
The final settlement was presented to Cook County Circuit Judge Anna Loftus on April 14. Loftus granted preliminary approval to the deal on April 25.
Plaintiffs have been represented by Ahdoot and his colleagues, Tina Wolfson and Theodore W. Maya, of Ahdoot & Wolfson; John C. Carey and David P. Milian, of Carey Rodriguez Milian, of Miami; Frank S. Hedin, of Hedin Hall, of Miami; Scott A. Bursor, of Bursor & Fisher, of Miami; and Katrina Carroll and Kyle A. Shamberg, of Carlson Lynch, of Chicago.
Google has been represented by attorneys Susan D. Fahringer, Ryan Spear and Kathleen A. Stetsko, of Perkins Coie, of Seattle and Chicago.