Vimeo appears close to settling a class action accusing it of violating a state biometrics law through facial scans of videos uploaded to its Magisto platform.
The lawsuit dates to September 2019, when lawyers with McGuire Law, of Chicago; Ahdoot & Wolfson, of Los Angeles; and Hedin Hall, of Miami, sued Vimeo in Cook County Circuit Court under the Illinois Biometrics Information Privacy Act. The complaint sought to create a class of potentially thousands of plaintiffs from whom Vimeo allegedly failed to obtain informed, written consent before collecting facial scan data.
Vimeo removed the complaint to federal court. Named plaintiff Bradley Acaley filed a motion for preliminary approval of a settlement in December, through which Vimeo would pay $2.25 million to be prorated among those who submit valid claims. Acaley would collect a $5,000 service award, while the attorneys would collect $787,500, or 35% of the total pool. They also seek more than $23,000 in costs associated with the litigation.
In addition to the settlement fund, Vimeo also agreed to “to delete all geometric measurement data derived and collected from a face appearing in a photo or video on its Magisto video editing application, to not sell such data, and to secure the informed and written consent that BIPA requires going forward,” according to an April 21 motion for fees. “This relief ensures Vimeo’s compliance with BIPA in the future and is the precise relief this litigation sought to obtain.”
Vimeo acquired Magisto in 2019, according to court records, which also said users upload millions of videos and photos each day to the mobile editing and production software. The complaint alleged Magisto deploys “so-called ‘artificial intelligence engines’ that intuitively analyze and edit video content” using “facial detection and recognition technology.”
The complaint alleges Vimeo also did not “obtain a written release” from any Illinois residents, nor did Vimeo post any “written, publicly available policies” concerning how the scanned, analyzed and sorted videos and photos, with the associated facial templates, would be retained and ultimately destroyed.
Notice of the settlement began March 21, and by April 19, six weeks before the June 5, deadline, there already had been 4,784 claims submitted with no objections or requests for exclusion. A final approval hearing for the settlement is set for June 29.
Among the concerns for the class, according to plaintiffs’ attorneys, was the potential an arbitration provision in Magisto’s service terms would be found enforceable as well as the “significant risk that the Illinois legislature would amend BIPA on a retroactive basis, in a manner that would effectively wipe away plaintiff’s and class members’ claims for relief.”
After removing the complaint to federal court Vimeo asked a judge to compel arbitration for Acaley’s individual claims. Although a federal judge denied that motion, Vimeo promptly appealed. That appeal was moving toward oral arguments before the sides began a federal mediation program.
For Vimeo, a prime issue was potentially “billions of dollars” at stake should the complaint proceed to trial, especially given a recent Illinois Supreme Court opinion that each collection of a biometric identifier is its own individual statutory violation, including repeated scans of images of the same person.