Those waiting on a cut of the proceeds from a $100 million Google Photos biometric privacy class action settlement will need to wait a while longer, as a Cook County judge decides how much harm was done to the claims approval process by a last minute decision by settlement administrators to require class members to submit photos of their ID cards and other information to prove they were eligible to get paid.
Last month, attorneys with the firm of Edelson P.C., of Chicago, filed a motion in Cook County Circuit Court on behalf of a woman, identified as Jodi White Jones. The motion asks the court’s permission to intervene in the class action against Google, and potentially establish new rules governing the payment of claims under the settlement.
If the Settlement Administrator is allowed to carry out this plan, an enormous number of Class Members will have their Claims denied solely because they do not check their spam folder on Thanksgiving,” the Edelson attorneys wrote in their motion.
J. Eli Wade-Scott
| Edelson P.C.
Three months earlier, Cook County Circuit Judge Ann Loftus had granted final approval to the settlement deal, appearing to end a six-year-long court fight over claims against Google.
The lawsuits, combined into one action, asserted Google had improperly scanned the faces of people appearing in pictures posted to the Google Photos app, and then stored so-called facial templates of those people. 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, which they asserted were required under the Illinois biometrics privacy law, known as the Biometric Information Privacy Act.
The lawsuits, led by a complaint filed in Chicago federal court in 2015, had marked some of the first forays into court against a tech giant under the BIPA law.
In the years since, the number of BIPA class action lawsuits have exploded, now numbering in the thousands in Cook County and other Illinois courts, and in other state’s courtrooms, as well.
The lawsuits carry huge risks for defendants. Under the BIPA law, plaintiffs are allowed to demand damages of $1,000-$5,000 per violation. When multiplied across potentially many thousands or even millions of alleged plaintiffs, the potential damages could quickly mount into the many millions or even billions of dollars, should the case go to trial.
Faced with such prospects, Google, like many other companies, opted to settle. The company ultimately agreed to pay $100 million.
In court documents, the plaintiffs explained the settlement would result in payments of $35 million in fees to the lawyers who led the lawsuits, and about $150 each for class members.
At the time of final settlement, the judge agreed to potentially include any Illinois residents who appeared in a photo posted to Google Photos from May 2015 to April 2022.
People had until Sept. 24, 2022, to submit their claims online. At the time of final approval, lawyers for the parties estimated as many as 418,000 people would be included in the settlement.
However, in late November 2022, with about a month to go before settlement administrators paid out that money, many people who had earlier believed they had submitted valid claims received emails from settlement administrators, demanding they supply additional information to back their claims.
These included instructions to supply a photocopy of a government issued photo ID, such as drivers license.
Anyone who did not do so by Dec. 4, 2022, would have their claim rejected, and would not receive a payment from the settlement, according to the email.
The email demands for additional information sparked the motion to intervene, and demands for the judge to take action.
In the motion, the Edelson lawyers, on behalf of White Jones, noted administrators did not seek nor secure court approval for the additional claim verification requirements.
“In this case, a Class Member could easily self-certify that they had a photo uploaded to Google Photos – a ubiquitous product used by a person’s friends, family members, or mere acquaintances – without hunting that person down for an e-mail address or account name,” the Edelson lawyers wrote. “And that’s what this Court approved: a simple and easy claims process.
“… Adding these requirements via a spam email is not ‘fundamentally fair, reasonable, adequate, and in the best interests of Class Members,” they wrote. “Potentially thousands of Class Members will be arbitrarily denied recovery solely because they do not check their spam folders. Others will be rejected because they could not comply within the short shot clock over a holiday weekend.”
They noted other potential class members may object to the new requirement, not approved by the court, to supply their photo ID.
“Class Counsel and the Settlement Administrator have effectively changed the terms of the Settlement, while denying Class Members an opportunity to ‘challenge unfair or inadequate aspects of a settlement,” the Edelson lawyers wrote.
“… Ultimately, the Settlement Administrator’s actions will produce a shockingly unfair result for an enormous portion of the Class.”
The Edelson lawyers, on behalf of White Jones, asked the judge to void the new requirements and order an accounting of the emails, to determine how many were sent, how many went to spam folders, and how many people complied with the additional information demands, both before and after the deadline.
The motion remains pending, according to Cook County court records. It is not known at this point when the judge will rule or when payments may be sent.
White Jones is represented by attorneys J. Eli Wade-Scott, Jay Edelson, Zoe Seaman-Grant and Ryan D. Andrews, of the Edelson firm.
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.