Case: 1:22-cv-02480 Document #: 16 Filed: 08/16/22 Page 1 of 5 PageID #:112
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`ADRIAN COSS and MARIBEL OCAMPO,
`individually and on
`behalf of all others similarly situated,
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`Case No. 1:22-cv-02480
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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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`Hon. Robert M. Dow, Jr.
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`DEFENDANT SNAP INC’S UNOPPOSED MOTION FOR A STAY PENDING THE
`ILLINOIS SUPREME COURT’S DECISION IN COTHRON v. WHITE CASTLE
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`Defendant Snap Inc. (“Snap”) respectfully seeks a temporary stay of this action pending
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`the Illinois Supreme Court’s decision in Cothron v. White Castle, Inc., No. 128004. Cothron,
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`which has already been fully briefed and argued, addresses issues that are key to whether this Court
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`has subject matter jurisdiction over Plaintiffs’ claims brought under the Illinois Biometric
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`Information Privacy Act (“BIPA”). Plaintiffs do not oppose the relief requested in this motion. In
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`support of its motion, Snap states as follows.
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`1.
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`Snap is a technology company that developed and operates the “Snapchat” app,
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`which is a smart phone camera application created to help people communicate through short
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`videos and images. Snapchat includes popular features called “Lenses” and “Filters,” which allow
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`users to edit their photos and videos to include real-time special effects and sounds.
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`2.
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`On May 11, 2022, Plaintiffs filed a class action against Snap alleging that Lenses
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`and Filters violate BIPA, and asserting that this Court has jurisdiction over the claims under the
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`Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). On July 1, 2022, Snap filed a motion
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`to dismiss for lack of subject matter jurisdiction, arguing that the number of individuals who opted
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`Case: 1:22-cv-02480 Document #: 16 Filed: 08/16/22 Page 2 of 5 PageID #:113
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`out of Snap’s arbitration agreement was too small to support the statutory minimum of $5 million
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`required under CAFA. Dkt. 11.
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`3.
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`In response to Snap’s motion to dismiss, Plaintiffs filed an amended complaint on
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`August 9, 2022. Dkt. 15. The amended complaint is no longer pleaded as a class action and is
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`instead brought by 31 plaintiffs individually. Plaintiffs allege subject matter jurisdiction under the
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`ordinary diversity jurisdiction statute, 28 U.S.C. § 1332(a), and not under CAFA. Under Section
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`1332(a), each plaintiff must be diverse from each defendant and each plaintiff must plead at least
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`$75,000 individually. 28 U.S.C. § 1332(a)(1); Clark v. State Farm Mut. Auto. Ins. Co., 473 F.3d
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`708, 711 (7th Cir. 2007) (“It is well settled that ... the separate claims of multiple plaintiffs against
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`a single defendant cannot be aggregated to meet the jurisdictional amount.”).
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`4.
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`Each of the 31 Plaintiffs alleges he or she is a citizen of Illinois and is therefore
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`diverse from Snap, which is a citizen of California and Delaware. Am. Compl. ¶ 27. And each
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`Plaintiff alleges he or she each incurred more than the required minimum of $75,000 in damages.
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`Id.
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`5.
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`BIPA provides for statutory damages of $1,000 per “violation” (if negligent) or
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`$5,000 per “violation” (if reckless or intentional). 740 ILCS 14/20. To allege an amount in
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`controversy of more than $75,000, Plaintiffs rely on what is widely referred to as the “per scan”
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`theory of BIPA liability. Under this theory, a separate violation of BIPA occurs each time a
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`defendant collects a plaintiff’s biometric data. See Cothron v. White Castle System, Inc., 20 F.4th
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`1156, 1162 (7th Cir. 2021). Plaintiffs allege they each used the Snapchat app at least 75 times,
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`Am. Compl. ¶ 28, and that they therefore have satisfied the amount in controversy requirement.
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`6.
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`Snap, however, rejects the “per scan” theory and contends that a plaintiff is
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`“aggrieved” only by the initial collection of his or her biometric data, and a new claim does not
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`Case: 1:22-cv-02480 Document #: 16 Filed: 08/16/22 Page 3 of 5 PageID #:114
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`accrue with each subsequent collection. Cothron, 20 F.4th at 1162. If this single-violation theory
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`is correct, Plaintiffs could recover only for Snap’s initial alleged collection of their biometric data,
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`limiting their damages to $1,000 (or $5,000 for a reckless or intentional violation). Because each
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`Plaintiff could recover at no more than a maximum of $5,000 in statutory damages, the Court
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`would lack subject matter jurisdiction.
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`7.
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`In Cothron, the Seventh Circuit addressed these competing theories of claim
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`accrual and statutory damages. After addressing the arguments on both sides, the court found itself
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`“genuinely uncertain” as to the correct answer to the “novel[] and uncertain[]” question. Id. at
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`1166. The Seventh Circuit therefore certified the question to the Illinois Supreme Court. Id. The
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`Illinois Supreme Court accepted the certified question. The appeal is briefed and the court heard
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`oral argument on May 15, 2022. A decision is expected at any time.
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`8.
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`The Illinois Supreme Court’s decision in Cothron likely will resolve (or at least
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`shed light on) the question of this Court’s subject matter jurisdiction.
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`9.
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`In these circumstances, Snap respectfully submits that this Court should stay this
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`action pending the Illinois Supreme Court’s decision in Cothron, which is expected to issue shortly.
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`It does not make sense to move forward when the threshold issue of subject matter jurisdiction is
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`in doubt, and the Cothron decision should soon clarify that issue.
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`10. Counsel for Snap has conferred with counsel for Plaintiffs, and Plaintiffs do not
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`oppose a stay pending the Illinois Supreme Court’s decision in Cothron.
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`WHEREFORE, Snap respectfully requests that the Court enter an order staying this action
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`pending the Illinois Supreme Court’s decision in Cothron. Within 14 days after Cothron is decided,
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`the parties will confer and submit to the Court a proposed course of action, depending on the
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`outcome of Cothron.
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`Case: 1:22-cv-02480 Document #: 16 Filed: 08/16/22 Page 4 of 5 PageID #:115
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`Dated: August 16, 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 #: 16 Filed: 08/16/22 Page 5 of 5 PageID #:116
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`CERTIFICATE OF SERVICE
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`I, Elizabeth B. Herrington, hereby certify that on this 16th day of August, 2022, I caused a
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`copy of the foregoing UNOPPOSED MOTION FOR A STAY 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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