This is getting to be a common refrain in BIPA cases – plaintiffs bring BIPA class actions in plaintiff-friendly state court; defendants remove; and plaintiffs move to remand arguing there is no injury-in-fact and thus no Article III standing.  In Thornely v. Clearview AI, Inc., 2020 U.S. Dist. LEXIS 197519 (N.D. Ill. Nov. 3, 2020), an Illinois federal court remanded a BIPA case back to the Circuit Court for Cook County based on plaintiffs’ argument that they had not alleged an injury-in-fact and therefore there was no Article III standing.

In that case, plaintiffs had brought a class action lawsuit against Clearview AI in state court asserting one count under the Illinois Biometric Information Privacy Act (“BIPA”).  Plaintiffs alleged that Clearview is an artificial intelligence company that secretly created a databased of billions of facial scans by scraping photographs from social media platforms.  However, unlike other cases against Clearview, plaintiffs did not bring a claim for damages under Section 15(b) for scraping their photographs but rather seek only statutory damages and attorneys’ fees under Section 15(c), a provision of BIPA related to the sale of biometric information.

Notably, in May of this year, the Seventh Circuit held in Bryant v. Compass Group USA, Inc., 958 F.3d 617 (7th Cir. 2020) that a violation of Section 15(b) of the BIPA constituted an injury-in-fact sufficient to confer standing; however, it found that a violation of Section 15(a), which included duties owed to the general public, was a bare procedural violation that did not inflict a concrete or particularized injury-in-fact on the plaintiff.  With this “guidance” from the Seventh Circuit, the district court here likewise found that plaintiffs’ claim under Section 15(c), which plaintiffs “purposely narrowed . . . to the general prohibition of Clearview selling and profiting from plaintiffs’ biometric data,” was also a bare procedural violation divorced from any concrete harm.  The district court therefore remanded the case back to state court.

While the court acknowledged Clearview’s arguments that plaintiffs were manipulating their claims, it found that “as with all lawsuits, a plaintiff is the master of her own complaint.”  The bottom line is that we are likely to see more lawsuits in state court under Sections 15(a) and (c) of BIPA.