On January 21, 2020, the U.S. Supreme Court issued an order denying Facebook, Inc’s petition for certiorari. The decision was a disappointment for WLF, which filed a brief criticizing a Ninth Circuit decision permitting large, no-harm class actions whenever plaintiffs can label the alleged statutory violation an “invasion of privacy.” The case arose under the Illinois Biometric Privacy Information Act (BIPA), a 2008 law that provides a private right of action allowing a plaintiff to recover up to $5,000 for a single violation. Seeking to represent a class of six million Illinois Facebook users, the plaintiffs sued Facebook claiming that its Tag Suggestions feature—which uses facial-recognition software to suggest that Facebook users tag their friends in photos they upload to Facebook—violates BIPA. As WLF’s brief explained, the panel’s certification ruling all but eliminates Article III’s standing requirement in “privacy” cases and throws open the door to class claims threatening draconian liability, creating irresistible pressure to settle even dubious claims. Such hydraulic settlement pressure—leveraging many billions of dollars in potential recovery—is corrosive to our civil justice system.
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