A lawsuit accusing a group of dating apps of violating Illinois' biometrics privacy law by scanning the faces in user photos is moving forward -- but not in Illinois.
Plaintiff Marcus Baker used dating sites OK Cupid and Tinder and uploaded images of himself to the sites, which are operated by Match Group Inc.
According to the complaint, Match Group then allegedly used, collected, and stored his biometric data.
However, according to the complaint, Match Group didn’t tell Baker about its use of his information, did not ask for permission or advise Baker of any policy about their use of his data. Baker alleged Match Group violated the Illinois Biometric Information Privacy Act (BIPA) and seeks damages of $1,000 to $5,000 per violation, as allowed under the law, for himself and potentially thousands or even millions of others using those sites in Illinois.
Companies targeted by such class actions could face potentially massive damages under the law. Under recent Illinois Supreme Court rulings, they could be liable for each time the company scanned so-called biometric identifiers, such as fingerprints or facial geometry, which means when multiplied across all users in Illinois, damages could quickly mount to what courts have described as "astronomical" and "crippling" levels.
To create his accounts, Baker, like all users, agreed to terms of service with Tinder and OKCupid. In that agreement, he assented to arbitrate claims against Match Group, and waived the right to file a class action. The arbitration clauses in the agreements included an exception: Either party had the right to bring an individual claim against the other in small claims court or, if the dispute was filed in arbitration, the responding party could request the dispute proceed in small claims court. All claims that couldn’t be brought in small claims court and weren’t submitted to arbitration would be litigated in the federal or state courts in Dallas County, Texas.
Match Group moved to dismiss the action in favor of small claims court or, alternatively, to transfer the case to the United States District Court for the Northern District of Texas, which was granted.
Baker argued the case should stay in Illinois because Match Group waived their right to arbitration and breached the arbitration agreement, the small claims courts in Illinois and Texas aren’t available or adequate for his suit, and because the balance of private and public interest factors favors Illinois, rather than Texas.
The judge said Baker’s claims are governed by Tinder’s and OKCupid’s terms and services agreements. Those agreements say defendants have the right to choose small claims court, rather than arbitration.
Baker argues that Match’s small claims court election is unenforceable because Match Group breached the duty of good faith and fair dealing. According to Baker, defendants breached their agreement by electing to close the arbitration in favor of small claims court even though they knew that court lacked jurisdiction, and unilaterally making changes to the terms of service to include additional pre-suit requirements.
"But the fact that the defendants knew Baker sought certain remedies in arbitration doesn’t mean they knew that small claims courts couldn’t hear his case. And while defendants issued revised terms of service for Tinder while Baker’s arbitration was pending, that doesn’t show that they breached any agreement with him," Shah wrote. "Baker cites no authority in support of these theories of breach, and waived these undeveloped arguments."
Baker is seeking at least $20,000 in damages and injunctive relief, but neither the small claims courts in Texas nor in Illinois can issue damages in that amount, or injunctive relief of the kind Baker seeks.
There’s also reason to believe small claims courts won’t have jurisdiction over any of plaintiff’s claims, the judge said. If Baker is unable to litigate any of his claims, that would be no remedy at all, making small claims courts an inadequate alternative forum.
The second problem the judge found with sending the case to small claims court is that such a dismissal would force Baker to give up his right to injunctive relief under BIPA.
“An arbitration agreement can’t require a party to forgo substantive statutory rights. And the small-claims provision is a part of the arbitration agreements,” wrote the judge. “It is unenforceable as applied to Baker’s BIPA claims. Besides the exception to the arbitration agreements, defendants make no argument as to why this case should be in small claims court.”
Baker’s choice of forum is given no weight, Shah said, and he bears the burden of showing that transfer in accordance with the agreement is unwarranted, and arguments about the parties’ private interests are disregarded.
Considering the public interest, it’s reasonable to infer that Baker’s claims arise from conduct in this state, and that an Illinois court would be more familiar with BIPA, the judge wrote. But Texas law governs the contracts, and familiarity with the law isn’t decisive, because federal judges routinely apply rules from another state.
Baker and the plaintiffs are represented by attorneys Jonathan Gardner, Melissa H. Nafash and Shannon K. Tully, of the firm of Labaton Sucharow, of New York; Michael D. Smith, of the Law Office of Michael D. Smith, of Chicago; and Christian Levis, Margaret MacLean and Amanda Fiorilla, of the firm of Lowey Dannenberg, of White Plains, New York.
Match has been represented by attorneys Stephen A. Broome, of Quinn Emanuel Urquhart & Sullivan, of Los Angeles; and Daniel S. Saeedi, Rachel L. Schaller and Elizabeth A. Winkowski, of the firm of Taft Stettinius & Hollister, of Chicago.
Match was previously sued by others under BIPA, The lawsuit claimed Match violated BIPA by improperly scanning the faces of people who upload their photos to verify their identities for their profiles on Tinder. That case was settled in February, according to court documents.