Northern District Of Illinois Dismisses BIPA Suit Against Canadian App Maker For Lack Of Personal Jurisdiction

The Illinois Biometric Information Privacy Act (“BIPA”) provides a cause of action to a person who believes their biometric information is obtained or disclosed without an individual's consent.  In Gutierrez v. Wemagine.ai LLP, 2022 U.S. Dist. LEXIS 14831, the plaintiff brought a putative class action on the part of users of an app created by the defendant, Wemagine.ai LLP in the Northern District of Illinois, claiming that the app obtained and disseminated the biometric information of its users without their written consent.

The hitch, however: the defendant was a Canadian company, and the only contacts it had with the state of Illinois were downloads of its app by users in the state.  The defendant moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), and the court granted the motion.

To obtain personal jurisdiction over an out-of-state defendant, the defendant must have sufficient minimum contacts with the state, and through those contacts, direct its effort towards and purposely avail itself of the benefits and protections of the state.  A growing body of case law, which the court here followed, holds that simply operating an interactive website, without more, does not confer personal jurisdiction over the operator.  The court found, in line with numerous other cases, that personal jurisdiction requires something along the lines of directed marketing, targeted sales and shipping, or business contracts that are related to the subject of the suit.

Here, the defendant operated a website from which users could download their app, regardless of location.  No marketing or sales were directed toward Illinois, and no other activity created a specific connection that could hale the defendant into the state.  Because the plaintiff and the putative class members were the sole connection between the defendant and the state, there could be no personal jurisdiction, and the suit could not proceed in Illinois.

The particular lesson here for companies operating websites and/or offering apps: the more locations you specifically and overtly target with your advertising or sales, the more locations you could be brought into court.  And if you haven't targeted any locations, raise that issue early and emphatically to avoid litigating in an improper forum.

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