A Cook County judge has granted final approval to the $100 million settlement ending a biometrics class action against Google over face scans of people featured in photos posted to the company’s Photos app, appearing to clear the way for checks of about $150 to be mailed to more than 400,000 people who got into the class action before the submission deadline.
Attorneys who led the lawsuit will get $35 million in fees, or 35% of the total settlement funds, under the judge’s order.
Cook County Judge Ann Loftus signed off on the settlement deal on Sept. 28.
Robert Ahdoot
| ahdootwolfson.com
The settlement comes after six years in court, as the sides squared off over claims Google illegally scanned and stored images of the faces of people who appeared in photos 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 huge judgments.
In the case against Google, for instance, the company could have faced damages worth billions of dollars, if the case had gone to trial and a jury found in favor of the plaintiffs under the BIPA law.
Faced with such risk, Google, like many other companies targeted by BIPA-related class actions, opted to settle rather than take their chances before a jury.
While most cases to date have settled for hundreds of thousands of dollars or a few million dollars, settlements with big tech companies have proven particularly lucrative.
Facebook notably agreed to pay $650 million to end a BIPA class action lawsuit accusing it of violating the state biometrics privacy law by scanning the faces of people featured in photos uploaded to that social media platform. That settlement generated $97 million in fees for the plaintiffs’ lawyers, or about 15% of the total fund. It also obtained payments of $400 each to individual class members in Illinois.
In the Google settlement, lawyers will receive a much larger stake of the total settlement, while class members will receive a significantly lesser individual payment than under the Facebook deal.
The fee award to the plaintiffs’ lawyers represented a reduction from what the lawyers had requested. In a motion for attorney fees filed earlier this summer, the lawyers had asked for $40 million, or 40% of the settlement funds. In her written order, Loftus did not explain why she cut $5 million from the fee award sought by the lawyers.
As for payments to class members, Loftus’ written final settlement approval order does not specify how much individual class members may receive.
Class members received payments would include any Illinois residents who appeared in a photo posted to Google Photos from May 2015 to April 2022.
In a motion for final approval submitted by plaintiffs’ lawyers, they estimate more than 418,000 people will receive checks for at least $142 each. In published accounts from a final approval hearing, it was reported class members could receive $154 each.
People eligible to receive a share of the settlement had until Sept. 24 to submit a valid claim. No further claims will be accepted.
Despite the judge’s final approval, it is unclear when payments will be sent. Any appeals from the judge’s final settlement approval order could delay the payments, as courts sort through any competing claims. No appeal has yet been filed.
While the court recorded no formal objections to the settlement, it received 97 requests to be excluded from the settlement, according to Loftus’ order.
Plaintiffs have been represented in the case by attorneys Robert Ahdoot, Tina Wolfson and Theodore W. Maya, of Ahdoot & Wolfson, of Burbank, California; John C. Carey and David P. Milian, of Carey Rodriguez Milian, of Miami, Florida; 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.