The lawyers who led a large biometrics class action lawsuit against Google over photo face scans have asked the court to award them $40 million in fees, allowing them to take 40% of a $100 million settlement believed to be worth around $200 each to perhaps hundreds of thousands of Illinois residents.
The lawyers filed a motion for attorney fees in Cook County Circuit Court in late July.
The motion was presented by attorney Robert Ahdoot and others with the firms of Ahdoot & Wolfson, of Burbank, California; Carey Rodriguez Milian, of Miami; Hedin Hall, of Miami; Bursor & Fisher, of Miami; and Carlson Lynch, of Chicago.
Robert Ahdoot
| ahdootwolfson.com
The lawyers said the fee request was “reasonable” and “justified,” when compared to the six years they spent litigating the consolidated cases in court, plus the years of work required to construct the cases before they first filed suit. Further, they argued the fee request should be granted because their work led to Google agreeing to pay $100 million to settle the lawsuit.
The lawyers said they “devoted significant time and effort to prosecution” of the cases, and “their efforts successfully yielded an extraordinary benefit to the Class,” Ahdoot and his colleagues wrote in the July 27 motion.
The lawyers’ fee request comes as the latest action in the case, as Google seeks to close out a series of class action lawsuits it has defended against since 2015.
The lawsuits have accused Google of improperly scanning the faces of people who appeared in photos that were uploaded to the Google Photos image storage and sharing platform.
Specifically, the lawsuits alleged Google had not first obtained consent from those people before scanning and storing their facial images, and also had not provided certain notices, allegedly required by Illinois law, concerning how the scanned data would be stored, used, shared and ultimately destroyed.
The lawsuits, led by a complaint filed in Chicago federal court in 2015, marked some of the first forays into court against a tech giant under Illinois’ Biometric Information Privacy Act.
In the years since, BIPA-related class actions have exploded in Cook County Circuit Court and other courtrooms in Illinois and in other states.
The bulk of those thousands of lawsuits under BIPA have targeted employers, accusing them of violating the BIPA law for the manner in which they required workers to scan fingerprints or other so-called biometric identifiers to punch in and out of work shifts, or to verify their identity to access secured workplace areas, such as medicine lockers, cash rooms and armored vehicles.
The lawsuits have been fueled by a series of plaintiff-friendly court rulings that so far have left companies with little ability to defend against the lawsuits, or even to reduce their risk of massive financial losses, should the cases go to trial.
Under the BIPA law, plaintiffs are allowed to demand damages of $1,000-$5,000 per violation. The law has been interpreted to define such individual violations to include each each time a company scans people’s fingerprints, faces or other so-called biometric identifiers.
Multiplied over an untold number of possible biometric scans, such potential damages could leave businesses of even modest sizes and means holding the bag for potentially crippling judgments.
Faced with such risk, a growing number of businesses targeted by BIPA lawsuits have opted to settle.
Employers have typically agreed to pay settlements ranging from hundreds of thousands of dollars to as much as $50 million.
However, big tech companies have proven to be much more valuable prizes for plaintiffs’ lawyers.
Facebook agreed to pay $650 million to end the BIPA litigation against it over face scans of Illinois residents by its photo tagging software. That settlement delivered $400 each to individual class members. A judge awarded the lawyers who led that lawsuit $97 million, or about 15% of the total fund.
In the case against Google, the tech giant agreed to pay $100 million. According to settlement documents, plaintiffs said they expect about 280,000 Illinois class members could receive anywhere from $200 to $400 each, depending on how many people submit eligible claims. Eligible claimants would include any current and former Illinois residents who “appeared in a photograph in Google Photos” from May 2015 to April 2022.
Cook County Judge Anna Loftus granted preliminary approval to the settlement in April.
However, at that time, it was not known how much the plaintiffs’ lawyers would request in fees.
In late July, they made their fee request known, seeking 40% of the settlement fund for themselves.
No one has yet filed any objections to the fee request, and Loftus has not ruled on the request.
The lawyers said their fee request, if granted, would still leave class members with a “historically large” settlement fund and “an excellent result” in what they paint as court proceedings “in a difficult case rife with risk.”
They noted the long procedural history of the case, including repeated victories by plaintiffs in defeating attempts by Google to toss the lawsuits.
Further, they noted the settlement came about amid an environment in which the Illinois Supreme Court and other courts continue to weigh key legal questions concerning the BIPA law, the outcomes of which could diminish the case against Google or potentially restrict their payout demands.
They asserted a number of other law firms passed up the opportunity to bring the BIPA cases against Google, and no other firms stepped forward to challenge their role as lead plaintiffs’ counsel in the cases, either.
“The market this judged this to be a high-risk case,” Ahdoot and his colleagues wrote in their fee petition.
The petition asserts the fee request is “consistent with Illinois law and with fee awards granted in comparable cases in Illinois courts.”
The petition did not compare the current fee request with the fees awarded in the Facebook BIPA case.
Under that settlement, attorneys led by the Chicago firm of Edelson P.C., had requested only 16.9% of the settlement as fees. U.S. District Judge Andrew Donato, in San Francisco federal court, reduced that fee award to 15% of the total.
In his decision, Judge Donato said the $650 million settlement was too large to allow lawyers to calculate fees based on traditional benchmarks, such as “25% … typically applied in common fund cases.”
Further, in the Facebook ruling, Donato said awarding the plaintiffs’ lawyers their requested 16.9% would have produced fees of $110 million, which he said amounted to “windfall profits” for the lawyers. He said such fees were “not reasonable by any measure.”
Plaintiffs in the case against Google 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; Frank S. Hedin, of Hedin Hall; Scott A. Bursor, of Bursor & Fisher; and Katrina Carroll and Kyle A. Shamberg, of Carlson Lynch.
Google has been represented by attorneys Susan D. Fahringer, Ryan Spear and Kathleen A. Stetsko, of Perkins Coie, of Seattle and Chicago.