A federal judge won’t swipe left on a class action lawsuit accusing the company that runs dating app Bumble of violating a state biometrics privacy law.
Dario Dzananovic sued Bumble, Buzz Holdings and Bumble trading in Cook County Circuit Court, alleging the app collected facial scans from users without complying with Illinois Biometric Information Privacy Act regulations regarding consent and data retention policies. The companies removed the complaint to federal court, where on July 7 U.S. District Judge Andrea Wood rejected a motion to dismiss the complaint.
According to Dzananovic, Bumble promotes its optional photo verification tool as a means for users to “flirt, connect, and network comfortably, knowing the person you’re talking to is exactly who they say they are.” To use this feature, users have to upload a picture — posed per the app’s suggestion — after which Bumble “uses an artificial intelligence tool to conduct a facial scan of the photo, extract geometric data from it, and then create a facial template,” according to Wood.
In arguing for dismissal, Buzz said it didn’t target its photo verification feature to Illinois residents specifically, but merely operated a global internet site Illinoisans could access the same as anyone else. However, Wood quoted a 2010 U.S. Seventh Circuit Court of Appeals opinion, Mobile Anesthesiologists Chicago v. Anesthesia Associates of Houston Metroplex, which held “a defendant’s deliberate and continuous exploitation of the market in a forum state, accomplished through its website as well as through other contacts with the state, can be sufficient to establish specific personal jurisdiction.”
Dzananovic alleged Bumble has thousands of paying customers in Illinois, an assertion the companies didn’t dispute. Wood cited estimates from the third quarter of 2021 that each paying Bumble user generated $31 in revenue and pointed to Bumble’s use of billboards and happy hour events in Chicago along with creation of multiple “BumbleSpot” locations where matched users can meet. Buzz also has offered Chicago restaurant guides, sponsored booths at Lollapalooza and hired recruiters to find users at colleges in the city.
Wood further cited a 2022 federal case from the Southern District of California, Chien v. Bumble, where Bumble Trading failed to prevail on similar arguments about doing business in that state.
Bumble and Buzz Holdings argued they should be dismissed because they are just holding companies and don’t conduct operating business. To support that argument, they relied on Securities and Exchange Commission filings and corporate declarations, but “Dzananovic points to a declaration in a separate litigation from Caroline Roche, Bumble Trading’s chief of staff in 2021, where she states that Bumble Inc. is the parent company of Bumble Trading, is involved in the marketing decisions of its subsidiaries, and is a party to the Bumble App’s terms and conditions,” Wood wrote.
She further said the cited SEC filings “specifically describe Buzz Holdings and Bumble Inc. as ‘providing online dating and social networking platforms through subscription and credit-based dating products” through ‘websites and applications that it owns and operates.’ The SEC filings further note that Bumble operates the Bumble App, Bumble conducts brand marketing and field marketing such as sponsorships and brand ambassadorships, and Bumble employs machine and deep learning to personalize user matches and inform its product pipeline.”
The companies also said the BIPA claims weren’t adequately linked to Bumble’s business model, but Wood agreed with Dzananovic’s position that Bumble’s marketing strategy includes a perception of greater safety and privacy than other dating apps and, in particular, promotion of the optional image-based verification.
Finally, Wood rejected arguments that keeping the case in Chicago would be unreasonable or unfair. Her opinion came less than a month after another federal judge in Chicago agreed to transfer to Texas BIPA litigation involving Bumble competitors OkCupid and Tinder. In that ruling, U.S. District Judge Manish Shah ruled the sites’ contracts with users fall under Texas law.
Wood said because she determined Bumble “purposefully directed” business activities at Illinoisans, the companies have to make a compelling case for a venue switch. In addition to falling short, she said, “Illinois has an interest in providing a forum for its residents, such as Dzananovic and other class members, to seek redress for the collection of their biometric information in violation of BIPA, an Illinois statute.”
The plaintiffs are represented in the action by attorneys Katrina Carroll and Kyle A. Shamberg, of the firm of Lynch Carpenter, of Chicago.
Buzz and Bumble are represented by attorneys Tiffany Cheung and Purvi G. Patel, of the firm of Morrison & Foerster, of San Francisco and Los Angeles, and John C. Ellis and Samantha Ditore, of Ellis Legal, of Chicago.