Key Issue

Whether plaintiffs' invasion of privacy claims are sufficient to support standing where the alleged violations did not result in physical harm or the loss of money or property.


In May 2015, Facebook users in Illinois filed three putative class actions alleging that the company violated the Illinois Biometric Information Privacy Act ("BIPA") by using data from uploaded photos to create facial recognition software for its "Tag Suggestions" feature, which allows the site's users to recognize friends. Plaintiffs agreed to transfer the actions to California, where they were consolidated into one proposed class action in September 2015.1

In April 2018, Judge James Donato of the U.S. District Court for the Northern District of California certified a class of "Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011."2 Facebook appealed the decision.3

On August 8, 2019, a panel of the Ninth Circuit affirmed certification of the class and noted that Facebook's facial recognition technology "invade[d] an individual's private affairs and concrete interests."4 On October 18, 2019, the Ninth Circuit denied Facebook's motion for rehearing en banc.5

Current Briefing

On October 24, 2019, Facebook filed a motion for a stay of the Ninth Circuit's mandate pending its forthcoming petition for certiorari to the Supreme Court.6 In its motion, Facebook indicated that it would raise the following questions in its petition: (1) whether the invasion of privacy that plaintiffs allegedly suffered establishes Article III standing under the Supreme Court's decision in Spokeo, Inc. v. Robins;7 (2) whether a court must find that common issues predominate before certifying a class under Rule 23(b)(3); and (3) whether the "enormous statutory award" that plaintiffs seek violates Rule 23(b)(3)'s superiority requirement and the constitutional due process provisions because it is unconnected to an actual injury.8 In an opposition filed one day later, plaintiffs contend that Facebook has failed to raise any issues appropriate for the Supreme Court's review.9

On October 30, 2019, the Ninth Circuit granted Facebook's motion to stay the mandate until January 16, 2020, thereby providing Facebook time to file a petition for a writ of certiorari in the Supreme Court.10 The stay will remain in effect if the Supreme Court grants certiorari.11

Thoughts & Takeaways

If the Supreme Court grants certiorari, the case could present an opportunity for guidance on what privacy and data breach violations are actionable under Spokeo, which would likely have significant ramifications for class litigation given the growing trend of similar actions. Damages under the BIPA are set at $1,000 for each negligent violation and $5,000 for each reckless or intentional violation. With a class of potentially seven million Facebook users, the case could have significant consequences for the social media giant and far-reaching implications in the data privacy space.

That said, the Ninth Circuit's decision is consistent with a January 2019 ruling from the Illinois Supreme Court that found that BIPA does not require a plaintiff to allege separate "actual damages beyond violation of ... rights under the Act in order to bring an action under it."12 Plaintiffs assert that because the instant action involves questions of state law that have been decided by the state's highest court, the Supreme Court is even more unlikely to grant review.

Read the motion to stay the mandate here, the brief in opposition here, and the order granting the stay here.


1. In re Facebook Biometric Info. Privacy Litig., No. 3:15-cv-03747-JD (N.D. Cal. May 14, 2015).

2. In re Facebook Biometric Info. Privacy Litig., 326 F.R.D. 535, 543 (N.D. Cal. 2018).

3. Patel v. Facebook, Inc., No. 18-15982 (9th Cir. May 30, 2018).

4. Patel v. Facebook, Inc., 932 F.3d 1264, 1273 (9th Cir. 2019). The opinion is available here.

5. Order, Patel, No. 18-15982 (9th Cir. Oct. 18, 2019), ECF No. 105.

6. Facebook's Motion for a Stay of the Mandate Pending the Supreme Court's Disposition of its Anticipated Petition for a Writ of Certiorari, Patel, No. 18-15982 (9th Cir. Oct. 24, 2019), ECF No. 106-1.

7. 136 S. Ct. 1540 (2016).

8. Id.

9. Opposition of Plaintiffs-Appellees to Motion to Stay the Mandate, Patel, No. 18-15982 (9th Cir. Oct. 25, 2019), ECF No. 107-1.

10. Order, Patel, No. 18-15982 (9th Cir. Oct. 30, 2019).

11. Id.

12. See Rosenbach v. Six Flags Entm't Corp., No. 123186 (Ill. Jan. 25, 2019).

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