Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 1 of 9 PageID #:55
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Case No. 1:22-cv-02480
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`Hon. Robert M. Dow, Jr.
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`ADRIAN COSS and MARIBEL OCAMPO,
`individually and on
`behalf of all others similarly situated,
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`v.
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`SNAP INC.,
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` Plaintiffs,
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`Defendant.
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`
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`DEFENDANT SNAP INC.’S MEMORANDUM OF LAW IN SUPPORT OF
`ITS RULE 12(b)(1) MOTION TO DISMISS
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 2 of 9 PageID #:56
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`Defendant Snap Inc. (“Snap”) is a technology company that developed and operates the
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`“Snapchat” app, which is a smart phone camera application that was created to help people
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`communicate through short videos and images. Snapchat includes popular features called
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`“Lenses” and “Filters,” which allow users to edit the photos and videos they share to include real-
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`time special effects and sounds. For example, users can add rainbows coming out of their mouths,
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`flower crowns atop their heads, and tears streaming from their eyes.
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`As Snap explains to its users, Lenses and Filters do not use facial identification technology
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`to place these special effects on photos or videos. Rather, Lenses use object recognition
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`technology: this allows the camera to recognize that a nose (or an eye or a mouth) appears in the
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`frame, but Lenses does not identify any particular nose or eye or mouth—let alone a whole face—
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`as belonging to any specific person. And Filters do not even use object recognition technology.
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`Rather, they simply allow users to add artistic overlays to their images—e.g. changing the color
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`scheme to black and white or adding a stamp noting the day of the week.
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`Although Snapchat’s features do not implicate the Illinois Biometric Information Privacy
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`Act, 740 ILCS 14/1 et seq. (“BIPA”) Plaintiffs filed a class action against Snap for alleged
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`violations of BIPA. Plaintiffs assert Snap failed to comply with the notice and consent
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`requirements set forth in BIPA Sections 15(a) and 15(b), “profit[ed]” from Plaintiffs’ “biometric
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`identifiers,” in alleged violation of BIPA Section 15(c), and disclosed or disseminated Plaintiffs’
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`“biometric identifiers” and/or “biometric information” in violation of BIPA Section 15(d).
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`Plaintiffs’ Complaint, however, fails at the threshold issue of subject matter jurisdiction.
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`Plaintiffs base jurisdiction exclusively on the Class Action Fairness Act (“CAFA”) but do not (and
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`cannot) allege that the putative class consists of at least 100 members, the statutory requirement
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`for CAFA jurisdiction.
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 3 of 9 PageID #:57
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`Accordingly, the Court should dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(1) for
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`lack of subject matter jurisdiction.1
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`FACTUAL BACKGROUND
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`A.
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`The Illinois Biometric Information Privacy Act.
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`BIPA regulates the collection, possession, and storage of certain biometric identifiers and
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`information, while expressly excluding other kinds of data. The statute defines “biometric
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`identifier” using a short, exclusive list of personal data: “‘[b]iometric identifier’ means a retina or
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`iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” 740 ILCS 14/10. Section
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`15(b) requires private entities that “collect, capture, purchase, receive through trade, or otherwise
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`obtain a person’s ... biometric identifier or biometric information” to first (1) inform the person of
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`that collection “in writing”; (2) inform the person “in writing of the specific purpose and length of
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`term” regarding the collection; and (3) obtain a “written release” from the person. 740 ILCS
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`14/15(b). Section 15(c) further prohibits any private entity “in possession of a biometric identifier
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`or biometric information” from “sell[ing], leas[ing], trad[ing], or otherwise profit[ing] from a
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`person’s ... biometric identifier or biometric information.” 740 ILCS 14/15(c). Section 15(d)
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`prohibits private entities from “sell[ing], lease[ing], trade[ing], or otherwise profit[ing] from a
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`person’s or a customer’s biometric identifier or biometric information.” 740 ILCS 14/15(d).
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`B.
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`Snap’s Alleged Conduct.
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`Plaintiffs incorrectly alleges that two Snapchat features – “Lenses” and “Filters” –
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`“involved and/or involves the use of technology to create a face scan or face template of a user
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`where the Feature involved creating, obtaining, and storing a user’s unique ‘biometric identifiers’
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`and/or ‘Biometric information’” and “involve and/or involved the collection, use, modification,
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`1 Snap does not concede that any of Plaintiff’s allegations are accurate or that it collects, stores, uses, or
`disseminates any “biometric identifiers” or “biometric information” as defined by BIPA.
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 4 of 9 PageID #:58
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`monetization and/or storage of the ‘biometric identifiers’ and/or ‘Biometric information’” of
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`Plaintiffs. Compl. ¶¶ 83, 96. Plaintiffs assert in a conclusory fashion that “[e]ach time Plaintiffs
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`used the Lenses Feature was used by Plaintiffs, the Snapchat app scanned the faces of Plaintiffs,
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`which resulted in Defendant obtaining and/collecting Plaintiffs’ unique ‘biometric identifier’ or
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`‘biometric information’ as these terms are defined by BIPA.” Compl. ¶ 87. Similarly, Plaintiffs
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`assert that “[e]ach time Plaintiffs used a Filter, the Snapchat app. scanned their faces and obtained
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`their unique ‘biometric identifier’ or ‘biometric information’ as these terms are defined by BIPA.”
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`Compl. ¶ 97.
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`Based on these conclusory allegations, Plaintiffs assert that Snap violated Sections 15(a) -
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`(d) of BIPA.
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`C.
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`Snap’s Terms of Use
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`As Plaintiff acknowledges, users of the Snapchat app are required to agree to the Snap
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`Terms of Service (“Terms”) before using Snapchat. Compl. ¶¶ 25-27; Exhibit A, Hernandez Decl.
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`¶ 2. The Terms contain an agreement to arbitrate disputes on an individual basis. Hernandez Decl.
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`¶ 2. The Terms also provide that users can opt out of the arbitration agreement by e-mail or by
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`physical mail. Hernandez Decl. ¶¶ 4 –5; see also Compl., ¶¶ 25-27. Plaintiff Coss and Plaintiff
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`Ocampo both allege that they opted out of the arbitration agreement and so may proceed with their
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`claims in this Court. Compl. ¶¶ 25, 27.
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`Snap updates its Terms periodically, and users are required to accept the updated version
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`of the Terms before using Snapchat. According to Snap’s records, there are 51 Snapchat users in
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`Illinois who have opted out of any version of Snap’s Terms. Hernandez Decl. ¶ 6. Snapchat users
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`who have not opted out of the arbitration agreement are bound by the agreement to arbitrate
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`disputes on an individual basis.
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 5 of 9 PageID #:59
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`ARGUMENT
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`“[T]he objection presented by a Rule 12(b)(1) motion challenging the Court’s subject
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`matter jurisdiction is that the Court has no authority or competency to hear and decide the case
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`before it.” Johnson v. Orkin, LLC, 928 F. Supp. 2d 989, 997 (N.D. Ill. 2013) (citing Int’l Union of
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`Operating Eng’rs Local 150, AFL-CIO v. Ward, 563 F.3d 276, 280-82 (7th Cir. 2009)). “As a
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`jurisdictional requirement, the plaintiff bears the burden of establishing standing.” Apex Digital,
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`Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). When a party moves to dismiss
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`for lack of subject matter jurisdiction, a district court may look beyond the pleadings and view
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`whatever evidence has been submitted on the issue. Evers v. Astrue, 536 F.3d 651, 656 (7th Cir.
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`2008) (citing Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999)).
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`I.
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`THE COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFFS
`BIPA CLAIMS
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`Plaintiffs cannot establish subject matter jurisdiction because their proposed class consists
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`of, at most, 51 people—barely half the amount required under CAFA.” 28 U.S.C. § 1332(d)(5)(B)
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`CAFA, the sole basis for jurisdiction cited in the Complaint, Compl. ¶¶ 30 – 42, confers federal
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`jurisdiction over class actions when certain prerequisites of class size and amount in controversy
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`are satisfied. As relevant here, under CAFA, federal courts do not have original jurisdiction over
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`a class action if “the number of members of all proposed plaintiff classes in the aggregate is less
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`than 100.” 28 U.S.C. § 1332(d)(5)(B); see also Appert v. Morgan Stanley Dean Witter, Inc., 673
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`F.3d 609, 619 (7th Cir. 2012) (implying a requirement to satisfy a 100-person threshold for CAFA
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`jurisdiction).
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`Plaintiffs acknowledge the 100-class member rule in their Complaint. Compl. ¶¶ 32–33.
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`Plaintiffs, however, make no allegation within the “Jurisdiction and Venue” section of their
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`Complaint regarding how many class members exist. Instead, Plaintiffs only point to the number
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 6 of 9 PageID #:60
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`of alleged “Daily Active Users” who use the Snapchat app. Compl. ¶ 36. This alone is not enough
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`to establish subject matter jurisdiction under CAFA.
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`Plaintiffs expressly acknowledge that Snapchat’s Terms contain an agreement to arbitrate
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`disputes on an individual basis. Compl. ¶¶ 25, 27. Indeed, both Plaintiffs allege they opted out of
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`the arbitration agreement using the opt-out provision in the Terms. Compl. ¶¶ 25, 27. Elsewhere,
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`Plaintiffs allege repeatedly that “on information and belief, more than forty (40) Illinois residents
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`have opted out of the arbitration clause that is contained within Defendant’s Terms of Service.”
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`Compl. ¶¶ 127, 159; see also Compl. ¶¶ 28, 128, 160.2
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`By alleging that they have both opted out of the arbitration agreement, and by repeatedly
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`alleging on information and belief that “more than forty” other Snap users have also opted out,
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`Plaintiffs acknowledge that the only Snap users Plaintiffs could represent are those that have opted
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`out of arbitration. That makes sense, because Snap’s arbitration agreement has been enforced by
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`numerous courts in BIPA cases. See e.g. K.F.C. by & through Clark v. Snap, Inc. 2021 WL
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`2376359 (S.D. Ill. June 10, 2021), aff’d K.F.C. v. Snap Inc., 29 F.4th 835, 838 (7th Cir. 2022);
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`S.W. by & through Williams v. Snap Inc. No. 2021 L 001112 (Cir. Ct. DuPage Cnty. March 30,
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`2022), appeal filed No. 3-22-0181.
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`Only 51 Snapchat users in Illinois have ever opted out of any version of the arbitration
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`clause in Snap’s Terms. Hernandez Decl. ¶ 6. Every other user of Snapchat is therefore bound by
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`the arbitration provision and is not eligible to be a member of Plaintiffs’ proposed class. Nor can
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`Plaintiffs evade this result by purporting to define the class to include “All Illinois citizens” who
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`allegedly had their biometric data collected while using Snapchat. See Compl. ¶ 164. This class
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`2 “[M]ore than forty” is sometimes cited as a rule of thumb for whether a case can proceed as a class action rather
`than individual actions. See e.g., Chavez v. Don Stoltzner Mason Contractor, Inc., 272 F.R.D. 450, 454 (N.D. Ill.
`2011). But the number has no significance to CAFA jurisdiction, which requires more than 100 class members. See
`28 U.S.C. § 1332(d)(5)(B).
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 7 of 9 PageID #:61
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`definition, which comes in the middle of a boilerplate recital of the elements of Rule 23, see id. ¶¶
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`164-175, is contradicted by and cannot be reconciled with Plaintiffs’ repeated emphasis on the
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`significance of those who have opted out of the arbitration agreement as the parties who are
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`properly before this Court. Compl. ¶¶ 127, 159; see also Compl. ¶¶ 28, 128, 160. Indeed, Plaintiffs
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`do not even attempt to explain how they could be considered proper representatives of a class
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`whose members differ from plaintiffs with respect to the threshold question of whether they are
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`even eligible to seek relief in court. See, e.g. Santagelo v. Comcast Corp., 2017 WL 6039903
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`(N.D. Ill. Dec. 6, 2017) (refusing to permit named plaintiff who opted out of arbitration provision
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`from representing “class members who are potentially bound by Comcast’s arbitration provision”).
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`In short, Plaintiffs cannot plausibly allege that they represent a class of sufficient size to
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`confer CAFA jurisdiction given that only 51 Illinois users have ever opted out of the arbitration
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`agreement.
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`CONCLUSION
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`For the foregoing reasons, Snap respectfully requests that this Court dismiss Plaintiffs’
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`Complaint with prejudice.
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 8 of 9 PageID #:62
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`Dated: July 1, 2022
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`Respectfully submitted,
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`SNAP INC.
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`By: /s/ Elizabeth B. Herrington
`By Its Attorney
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`Elizabeth B. Herrington
`Gregory T. Fouts
`Alborz Hassani
`Morgan, Lewis & Bockius LLP
`110 North Wacker Drive, Suite 2800
`Chicago, IL 60606-1511
`(312) 324-1000
`beth.herrington@morganlewis.com
`gregory.fouts@morganlewis.com
`al.hassani@morganlewis.com
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`Counsel for Defendant Snap Inc.
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`Case: 1:22-cv-02480 Document #: 12 Filed: 07/01/22 Page 9 of 9 PageID #:63
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`CERTIFICATE OF SERVICE
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`I, Elizabeth B. Herrington, hereby certify that on this 1st day of July, 2022, I caused a copy
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`of the foregoing DEFENDANT SNAP INC.’S MEMORANDUM OF LAW IN SUPPORT OF
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`ITS MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) to be served upon all counsel of
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`record via the Court’s CM/ECF system.
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`/s/ Elizabeth B. Herrington
`Elizabeth B. Herrington
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