No. 19-____
`
`IN THE
`Supreme Court of the United States
`_________
`
`FACEBOOK, INC.,
`Petitioner,
`
`v.
`
`NIMESH PATEL, ADAM PEZEN, AND CARLO LICATA,
`INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
`SIMILARLY SITUATED,
`Respondents.
`
`_________
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`
`LAUREN R. GOLDMAN
`ANDREW J. PINCUS
`MICHAEL RAYFIELD
`MAYER BROWN LLP
`1221 Ave. of the Americas
`New York, NY 10020
`
`KATHERINE B. WELLINGTON
`HOGAN LOVELLS US LLP
`125 High St., Suite 2010
`Boston MA 02110
`
`NEAL KUMAR KATYAL
` Counsel of Record
`DANIELLE DESAULNIERS
`STEMPEL*
`HOGAN LOVELLS US LLP
`555 Thirteenth St., N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`* Admitted only in Maryland;
`practice supervised by principals
`of the firm admitted in D.C.
`
`Counsel for Petitioner
`
`
`
`IN THE
`Supreme Court of the United States
`_________
`
`FACEBOOK, INC.,
`Petitioner,
`
`v.
`
`NIMESH PATEL, ADAM PEZEN, AND CARLO LICATA,
`INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
`SIMILARLY SITUATED,
`Respondents.
`
`_________
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`
`LAUREN R. GOLDMAN
`ANDREW J. PINCUS
`MICHAEL RAYFIELD
`MAYER BROWN LLP
`1221 Ave. of the Americas
`New York, NY 10020
`
`KATHERINE B. WELLINGTON
`HOGAN LOVELLS US LLP
`125 High St., Suite 2010
`Boston MA 02110
`
`NEAL KUMAR KATYAL
` Counsel of Record
`DANIELLE DESAULNIERS
`STEMPEL*
`HOGAN LOVELLS US LLP
`555 Thirteenth St., N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`* Admitted only in Maryland;
`practice supervised by principals
`of the firm admitted in D.C.
`
`Counsel for Petitioner
`
`
`
`QUESTIONS PRESENTED
`1. Whether a court can find Article III standing
`based on its conclusion that a statute protects a
`concrete interest, without determining that the
`plaintiff suffered a personal, real-world injury from
`the alleged statutory violation.
`2. Whether a court can find Article III standing
`based on a risk that a plaintiff’s personal information
`could be misused in the future, without concluding
`that the possibility of misuse is imminent.
`3. Whether a court can certify a class without de-
`ciding a question of law that is relevant to determin-
`ing whether common issues predominate under Rule
`23.
`
`(i)
`
`
`
`ii
`PARTIES TO THE PROCEEDING
`Facebook, Inc., petitioner on review, was the de-
`fendant-appellant below.
`Nimesh Patel, Adam Pezen, and Carlo Licata, indi-
`vidually and on behalf of all others similarly situat-
`ed, were the plaintiffs-appellees below.
`
`
`
`iii
`RULE 29.6 DISCLOSURE STATEMENT
`Facebook, Inc. is a publicly traded company. Facebook
`does not have a parent corporation, and no publicly
`traded company holds 10% or more of Facebook, Inc.’s
`stock.
`
`
`
`iv
`RELATED PROCEEDINGS
`Gullen v. Facebook, Inc., No. 18-15785 (9th Cir.
`June 14, 2019), is a related case. The district court
`granted summary judgment to Facebook, Inc., the
`Ninth Circuit affirmed, and the time for seeking
`certiorari has expired.
`
`
`
`v
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ........................................ i
`PARTIES TO THE PROCEEDING ............................ ii
`RULE 29.6 DISCLOSURE STATEMENT ............... iii
`RELATED PROCEEDINGS ...................................... iv
`TABLE OF AUTHORITIES ..................................... viii
`OPINIONS BELOW .................................................... 1
`JURISDICTION .......................................................... 2
`CONSTITUTIONAL, PROCEDURAL, AND
`STATUTORY PROVISIONS
`INVOLVED ......................................................... 2
`INTRODUCTION ........................................................ 5
`STATEMENT .............................................................. 9
`A. Statutory Background .............................. 9
`B. Procedural History ................................. 10
`REASONS FOR GRANTING THE PETITION ....... 15
`I. THE NINTH CIRCUIT’S DECISION
`CREATED AND DEEPENED TWO
`CLEAR SPLITS ON ARTICLE III
`STANDING ..................................................... 15
`A. The Ninth Circuit’s Decision Cre-
`ated A Clear Split With Respect
`To Whether A Plaintiff Is Re-
`quired To Show A Personal, Real-
`World Harm To Establish Stand-
`ing Based On An Alleged Statu-
`tory Violation .......................................... 16
`
`
`
`vi
`TABLE OF CONTENTS—Continued
`
`Page
`
`B. The Ninth Circuit’s Decision
`Deepened An Acknowledged Cir-
`cuit Split On When The Risk Of
`Misuse Of A Plaintiff’s Personal
`Information Supports Standing ............. 21
`C. The Decision Below Is Wrong ................ 25
`D. The Questions Presented Are Im-
`portant And Recurring ........................... 27
`II. THE DECISION BELOW CREATED
`A CLEAR SPLIT AS TO WHETHER A
`COURT MUST
`DECIDE
`A
`THRESHOLD LEGAL QUESTION
`RELEVANT
`TO
`THE
`PREDOMINANCE
`INQUIRY
`BEFORE CERTIFYING A CLASS ................ 28
`A. The Ninth Circuit’s Decision Cre-
`ated A Clear Circuit Split ...................... 29
`B. The Decision Below Is Wrong ................ 34
`C. The Question Presented Is Im-
`portant .................................................... 36
`CONCLUSION .......................................................... 39
`APPENDIX
`APPENDIX A—Ninth Circuit’s Opinion
`(Aug. 8, 2019) ..................................................... 1a
`APPENDIX B—District Court’s Order
`re Renewed Motion to Dismiss for
`Lack of Subject Matter Jurisdiction
`(Feb. 26, 2018) ................................................. 28a
`
`
`
`vii
`TABLE OF CONTENTS—Continued
`
`Page
`
`APPENDIX C—District Court’s Order
`re Class Certification (Apr. 16, 2018) ............. 42a
`APPENDIX D—Ninth Circuit’s Order
`Denying Rehearing En Banc (Oct.
`18, 2019) .......................................................... 65a
`APPENDIX E—Declaration of Omry
`Yadan in Support of Facebook, Inc.’s
`Motion for Summary Judgment (Dec.
`8, 2017) (excerpt) ............................................. 67a
`APPENDIX F—Deposition of Nimesh
`Patel (Dec. 7, 2017) (excerpt) .......................... 70a
`APPENDIX G—Deposition of Carlo
`Licata (Oct. 24, 2017) (excerpt) ....................... 74a
`APPENDIX H—Deposition of Adam
`Pezen (Oct. 24, 2017) (excerpt) ....................... 76a
`
`
`
`viii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES:
`AT&T Mobility LLC v. Concepcion,
`563 U.S. 333 (2011) .............................................. 28
`Avery v. State Farm Mut. Auto. Ins. Co.,
`835 N.E.2d 801 (Ill. 2005) .................................... 14
`Beck v. McDonald,
`848 F.3d 262 (4th Cir. 2017) ................ 7, 22, 24, 25
`Brown v. Electrolux Home Prods., Inc.,
`817 F.3d 1225 (11th Cir. 2016) ............ 8, 32, 33, 35
`Carpenter v. United States,
`138 S. Ct. 2206 (2018) .......................................... 22
`Clapper v. Amnesty Int’l USA,
`568 U.S. 398 (2013) ........................................ 21, 27
`Comcast Corp. v. Behrend,
`569 U.S. 27 (2013) .............................. 30, 34, 35, 36
`Cortlandt St. Recovery Corp. v. Hellas
`Telecomms., S.À.R.L.,
`790 F.3d 411 (2d Cir. 2015) ................................. 17
`DaimlerChrysler Corp. v. Cuno,
`547 U.S. 332 (2006) .............................................. 27
`Deposit Guar. Nat’l Bank v. Roper,
`445 U.S. 326 (1980) .............................................. 34
`Dreher v. Experian Info. Sols., Inc.,
`856 F.3d 337 (4th Cir. 2017) ...................... 7, 19, 21
`Elec. Privacy Info. Ctr. v. U.S. Dep’t of
`Commerce,
`928 F.3d 95 (D.C. Cir. 2019) ............................ 8, 25
`Food & Water Watch, Inc. v. Vilsack,
`808 F.3d 905 (D.C. Cir. 2015). ............................. 17
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Galaria v. Nationwide Mut. Ins. Co.,
`663 F. App’x 384 (6th Cir. 2016) ..................... 7, 23
`Groshek v. Time Warner Cable, Inc.,
`865 F.3d 884 (7th Cir. 2017) ...................... 7, 20, 21
`Gubala v. Time Warner Cable, Inc.,
`846 F.3d 909 (7th Cir. 2017) ................................ 20
`Howe v. Speedway LLC,
`No. 17-cv-07303, 2018 WL 2445541
`(N.D. Ill. May 31, 2018) ....................................... 29
`Huff v. TeleCheck Servs, Inc.,
`923 F.3d 458 (6th Cir. 2019) ...................... 7, 19, 21
`In re Facebook Biometric Info. Privacy
`Litig.,
`185 F. Supp. 3d 1155 (N.D. Cal. 2016) ................ 12
`In re Facebook Biometric Info. Privacy
`Litig.,
`No. 3:15-CV-03747-JD, 2018 WL
`2197546 (N.D. Cal. May 14, 2018) ...................... 13
`In re Petrobras Secs.,
`862 F.3d 250 (2d Cir. 2017) ....................... 8, 33, 34
`Katz v. Pershing, LLC,
`672 F.3d 64 (1st Cir. 2012) .................... 7, 8, 23, 24
`Krottner v. Starbucks Corp.,
`628 F.3d 1139 (9th Cir. 2010) .......................... 7, 23
`Lewis v. Casey,
`518 U.S. 343 (1996) .............................................. 28
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992) ........................................ 17, 21
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Parker v. Time Warner Entm’t Co.,
`331 F.3d 13 (2d Cir. 2003) ................................... 37
`Perras v. H & R Block,
`789 F.3d 914 (8th Cir. 2015) ...................... 8, 33, 34
`Reilly v. Ceridian Corp.,
`664 F.3d 38 (3d Cir. 2011) ............................... 8, 24
`Riley v. California,
`573 U.S. 373 (2014) .............................................. 22
`Sabri v. Whittier All.,
`833 F.3d 995 (8th Cir. 2016) ................................ 17
`Safe Air for Everyone v. Meyer,
`373 F.3d 1035 (9th Cir. 2004) .............................. 17
`Shady Grove Orthopedic Assocs., P.A. v.
`Allstate Ins. Co.,
`559 U.S. 393 (2010) .......................................... 8, 37
`Spokeo, Inc. v. Robins,
`136 S. Ct. 1540 (2016) .................................. passim
`St. Louis Heart Ctr., Inc. v. Nomax, Inc.,
`899 F.3d 500 (8th Cir. 2018) ...................... 7, 20, 21
`Strubel v. Comenity Bank,
`842 F.3d 181 (2d Cir. 2016) ....................... 7, 18, 21
`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011) .............................................. 37
`Whitmore v. Arkansas,
`495 U.S. 149 (1990) .............................................. 21
`CONSTITUTIONAL PROVISION:
`U.S. Const. art. III, § 2 ................................................ 2
`
`
`
`xi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`STATUTES:
`28 U.S.C. § 1254(1) ...................................................... 2
`Illinois Biometric Information Privacy Act ..... passim
`740 Ill. Comp. Stat. 14/5(a) .................................... 9
`740 Ill. Comp. Stat. 14/5(c) .................................... 9
`740 Ill. Comp. Stat. 14/5(d) .................................... 9
`740 Ill. Comp. Stat. 14/5(e) .................................... 9
`740 Ill. Comp. Stat. 14/5(g) .................................... 9
`740 Ill. Comp. Stat. 14/10 ........................ 2, 3, 9, 10
`740 Ill. Comp. Stat. 14/15 .................................. 3, 4
`740 Ill. Comp. Stat. 14/15(a) ................................ 10
`740 Ill. Comp. Stat. 14/15(b) ................................ 10
`740 Ill. Comp. Stat. 14/20 ...................................... 4
`740 Ill. Comp. Stat. 14/20(1) ................................ 10
`740 Ill. Comp. Stat. 14/20(2) ................................ 10
`RULE:
`Fed. R. Civ. P. 23 ............................................... passim
`OTHER AUTHORITIES:
`Richard A. Nagareda, Class Certification in
`the Age of Aggregate Proof, 84 N.Y.U. L.
`Rev. 97 (2009) ....................................................... 37
`3 William B. Rubenstein, Newberg on Class
`Actions § 7:33 (5th ed. 2019 update) ................... 36
`
`
`
`IN THE
`Supreme Court of the United States
`_________
`No. 19-
`_________
`
`FACEBOOK, INC.,
`Petitioner,
`
`v.
`
`NIMESH PATEL, ADAM PEZEN, AND CARLO LICATA,
`INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
`SIMILARLY SITUATED,
`Respondents.
`_________
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Ninth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`Facebook, Inc. (Facebook) respectfully petitions for
`a writ of certiorari to review the Ninth Circuit’s
`judgment in this case.
`OPINIONS BELOW
`The Ninth Circuit’s decision is reported at 932 F.3d
`1264. Pet. App. 1a-27a. The Ninth Circuit’s order
`denying rehearing en banc is not reported. Id. at
`65a-66a. The district court’s denial of Facebook’s
`motion to dismiss for lack of Article III standing is
`reported at 290 F. Supp. 3d 948. Id. at 28a-41a. The
`district court’s class certification ruling is reported at
`326 F.R.D. 535. Id. at 42a-64a.
`(1)
`
`
`
`2
`JURISDICTION
`The Ninth Circuit entered judgment on August 8,
`2019. Petitioner’s timely motion for rehearing en
`banc was denied on October 18, 2019. This Court’s
`jurisdiction is invoked under 28 U.S.C. § 1254(1).
`CONSTITUTIONAL, PROCEDURAL, AND
`STATUTORY PROVISIONS INVOLVED
`Article III, Section 2 of the U.S. Constitution pro-
`vides:
`The judicial Power shall extend to all Cas-
`es, in Law and Equity, arising under this
`Constitution, the Laws of the United
`States, and Treaties made, or which shall
`be made, under their Authority; [and] to
`Controversies * * * between Citizens of dif-
`ferent States * * *.
`Rule 23(b)(3) of the Federal Rules of Civil Proce-
`dure provides:
`A class action may be maintained if * * *
`the court finds that the questions of law or
`fact common to class members predominate
`over any questions affecting only individual
`members, and that a class action is superi-
`or to other available methods for fairly and
`efficiently adjudicating the controversy.
`Section 10 of the Illinois Biometric Information
`Privacy Act, 740 Ill. Comp. Stat. 14/10, provides:
`“Biometric identifier” means a * * * scan of
`hand or face geometry. Biometric identifi-
`ers do not include * * * photographs * * * .
`“Biometric information” means any infor-
`mation, regardless of how it is captured,
`
`
`
`3
`converted, stored, or shared, based on an
`individual’s biometric identifier used to
`identify an individual. Biometric infor-
`mation does not include information de-
`rived from items or procedures excluded
`under the definition of biometric identifi-
`ers.
`Section 15 of the Illinois Biometric Information
`Privacy Act, 740 Ill. Comp. Stat. 14/15, provides:
`(a) A private entity in possession of bio-
`metric identifiers or biometric information
`must develop a written policy, made avail-
`able to the public, establishing a retention
`schedule and guidelines for permanently
`destroying biometric identifiers and bio-
`metric information when the initial pur-
`pose for collecting or obtaining such identi-
`fiers or information has been satisfied or
`within 3 years of the individual’s last in-
`teraction with the private entity, whichever
`occurs first. * * *
`(b) No private entity may collect, capture,
`purchase, receive through trade, or other-
`wise obtain a person’s or a customer’s bio-
`metric identifier or biometric information,
`unless it first:
`(1) informs the subject or the subject’s
`legally authorized representative in
`writing that a biometric identifier or
`biometric information is being collect-
`ed or stored;
`(2) informs the subject or the subject’s
`legally authorized representative in
`writing of the specific purpose and
`
`
`
`4
`length of term for which a biometric
`identifier or biometric information is
`being collected, stored, and used; and
`(3) receives a written release executed
`by the subject of the biometric identi-
`fier or biometric information or the
`subject’s
`legally authorized repre-
`sentative.
`Section 20 of the Illinois Biometric Information
`Privacy Act, 740 Ill. Comp. Stat. 14/20, provides:
`Any person aggrieved by a violation of this
`Act shall have a right of action in a State
`circuit court or as a supplemental claim in
`federal district court against an offending
`party. A prevailing party may recover for
`each violation:
`(1) against a private entity that negli-
`gently violates a provision of this Act,
`liquidated damages of $1,000 or actual
`damages, whichever is greater;
`(2) against a private entity that inten-
`tionally or recklessly violates a provi-
`sion of this Act, liquidated damages of
`$5,000 or actual damages, whichever
`is greater;
`(3) reasonable attorneys’ fees and
`costs, including expert witness fees
`and other litigation expenses; and
`(4) other relief, including an injunc-
`tion, as the State or federal court may
`deem appropriate.
`
`
`
`5
`INTRODUCTION
`Plaintiffs in this case seek tens of billions of dollars
`in statutory damages, on behalf of a class of millions
`of people, based on Facebook’s alleged violation of
`Illinois’s Biometric Information Privacy Act (BIPA).
`Facebook uses facial-recognition software to help
`users “tag” friends and family in photographs, mak-
`ing Facebook a more user-friendly and convenient
`tool for sharing photos. Facebook provided Plaintiffs
`with notice and the opportunity to opt-out of this
`feature. But—according to Plaintiffs—Facebook did
`not seek the particular kind of consent, or provide
`them with the particular kind of notice, required by
`BIPA.
`All three named Plaintiffs admit that they have
`suffered no harm from these alleged statutory viola-
`tions. See Pet. App. 70a-78a. And one Plaintiff
`testified that he likes Facebook’s Tag Suggestions
`feature and has not opted out of it, despite filing this
`lawsuit. See id. at 70a-73a. Although Plaintiffs
`claim that their privacy interests have been violated,
`they have never alleged—much less shown—that
`they would have done anything differently, or that
`their circumstances would have changed in any way,
`if they had received the kind of notice and consent
`they alleged that BIPA requires, rather than the
`disclosures that Facebook actually provided to them.
`Despite Plaintiffs’ failure to demonstrate any actu-
`al injury, the Ninth Circuit concluded that Plaintiffs
`have Article III standing. Applying this Court’s
`decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540
`(2016), the Ninth Circuit found that BIPA protects a
`concrete interest in privacy, including an interest in
`preventing future misuse of facial-recognition data.
`
`
`
`6
`See Pet. App. 14a-20a. Because the statute protects a
`concrete interest in privacy, the Ninth Circuit rea-
`soned, any BIPA violation “necessarily” gives rise to
`standing. Id. at 21a (emphasis added).
`The Ninth Circuit skipped a fundamental step in
`the standing analysis. It interpreted Spokeo to hold
`that as long as a statute protects a concrete interest,
`a statutory violation necessarily injures that “inter-
`est” and a plaintiff who alleges a statutory violation
`has standing to sue. But the Ninth Circuit never
`analyzed whether each Plaintiff in fact suffered a
`personal, real-world injury as a result of the alleged
`statutory violation. The Ninth Circuit likewise
`relied on the risk of misuse of Plaintiffs’ personal
`information as a basis for standing, but it did not
`evaluate whether Plaintiffs have established a risk of
`imminent injury, as this Court’s precedents require.
`The Ninth Circuit then issued a major decision
`about class actions. Under Rule 23, a class cannot be
`certified unless common issues predominate over
`individual issues. See Fed. R. Civ. P. 23(b)(3).
`Because BIPA applies only in Illinois, a significant
`disputed issue between the parties is where the
`alleged BIPA violations in this case occurred. Yet
`the Ninth Circuit did not determine whether that
`issue could be resolved through common proof. It
`instead affirmed the certification of a massive class—
`that includes millions of people—and launched the
`case toward an imminent trial, without determining
`that Rule 23’s predominance requirement had been
`conclusively met.
`This Court should grant certiorari and reverse the
`Ninth Circuit’s decision, which created or deepened
`three separate circuit splits. First, the Ninth Circuit
`
`
`
`7
`found standing below based on its conclusion that
`BIPA protects a concrete interest in privacy, without
`determining that each Plaintiff suffered a personal,
`real-world injury. The Second, Fourth, Sixth, Sev-
`enth, and Eighth Circuits, in contrast, hold that a
`plaintiff must show not only that a statute protects a
`concrete interest, but also that an alleged statutory
`violation actually harmed the plaintiff “in a personal
`and individual way.” Strubel v. Comenity Bank, 842
`F.3d 181, 191 (2d Cir. 2016) (internal quotation
`marks omitted); see Dreher v. Experian Info. Sols.,
`Inc., 856 F.3d 337, 344-347 (4th Cir. 2017); Huff v.
`TeleCheck Servs, Inc., 923 F.3d 458, 464-469 (6th
`Cir. 2019); Groshek v. Time Warner Cable, Inc., 865
`F.3d 884, 886-889 (7th Cir. 2017); St. Louis Heart
`Ctr., Inc. v. Nomax, Inc., 899 F.3d 500, 503-505 (8th
`Cir. 2018). The Court should grant certiorari to
`resolve this clear split over the proper interpretation
`of Spokeo.
`Second, the Ninth Circuit held that Plaintiffs have
`standing because of the risk of future misuse of their
`personal information, without requiring Plaintiffs to
`show that they were at imminent risk of suffering
`such harm. See Pet. App. 14a-22a; see also Krottner
`v. Starbucks Corp., 628 F.3d 1139, 1141-43 (9th Cir.
`2010) (finding standing based on the risk of future
`misuse of personal information). The Sixth Circuit
`has adopted a similar position. See Galaria v. Na-
`tionwide Mut. Ins. Co., 663 F. App’x 384, 388-389
`(6th Cir. 2016). In the First, Third, Fourth, and D.C.
`Circuits, however, the possibility that a plaintiff’s
`personal information may be misused does not create
`standing absent an imminent risk of injury. See
`Beck v. McDonald, 848 F.3d 262, 273-275 (4th Cir.
`2017) (acknowledging split); see also Katz v. Per-
`
`
`
`8
`shing, LLC, 672 F.3d 64, 78-80 (1st Cir. 2012); Reilly
`v. Ceridian Corp., 664 F.3d 38, 42-44 (3d Cir. 2011);
`Elec. Privacy Info. Ctr. v. U.S. Dep’t of Commerce
`(“EPIC”), 928 F.3d 95, 101-103 (D.C. Cir. 2019). This
`acknowledged split is worthy of the Court’s attention
`as lower courts continue to grapple with standing in
`cases involving personal data.
`Third, and separate from the two standing issues,
`the Ninth Circuit held below that it was not required
`to decide a predicate question of law relevant to class
`certification—the question of where a BIPA violation
`occurs—when evaluating whether common issues
`predominate. See Pet. App. 23a-26a. The Second,
`Eighth, and Eleventh Circuits, in contrast, hold that
`a court must decide a predicate question of law that
`bears on class certification prior to certifying a class.
`See In re Petrobras Secs., 862 F.3d 250, 271-275 (2d
`Cir. 2017); Perras v. H & R Block, 789 F.3d 914, 917-
`918 (8th Cir. 2015); Brown v. Electrolux Home
`Prods., Inc., 817 F.3d 1225, 1237-38 (11th Cir. 2016).
`This Court should grant certiorari to resolve this
`straightforward division, which will encourage forum
`shopping in cases involving unsettled questions of
`statutory interpretation.
`Each of these questions is exceptionally important.
`“Even in the mine-run case, a class action can result
`in potentially ruinous liability.” Shady Grove Ortho-
`pedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
`445 n.3 (2010) (Ginsburg, J., dissenting) (internal
`quotation marks omitted). And “[w]hen representa-
`tive plaintiffs seek statutory damages,” “a class
`action poses the risk of massive liability unmoored to
`actual injury.” Id. If the Ninth Circuit’s decision
`stands, Plaintiffs’ class action will proceed immedi-
`
`
`
`9
`ately to trial, where Plaintiffs seek tens of billions of
`dollars in damages without any showing that they
`were injured, and without demonstrating that the
`requirements for class certification have been met.
`Allowing class actions of this sort to proceed without
`rigorous adherence to the requirements of Rule 23
`will put immense pressure on defendants to settle,
`without any adjudication of the merits of plaintiffs’
`claims. This Court’s intervention is urgently needed
`to prevent that outcome.
`The Court should grant certiorari and reverse.
`STATEMENT
`A. Statutory Background
`The Illinois General Assembly enacted BIPA in
`2008 in response to the “growing” use of biometric
`technology. 740 Ill. Comp. Stat. 14/5(a). The Gen-
`eral Assembly recognized that “[t]he use of biomet-
`rics * * * appears to promise streamlined financial
`transactions and security screenings,” but
`it
`acknowledged the “heightened risk for identity theft”
`if biometric data is compromised. Id. 14/5(a), (c).
`Because the General Assembly did not want “mem-
`bers of the public” to be “deterred from partaking in
`biometric
`identifier-facilitated
`transactions,”
`it
`enacted BIPA to regulate the use of biometrics in
`certain circumstances. Id. 14/5(e); see id. 14/5(d), (g).
`BIPA applies to “[b]iometric identifiers”—which
`include a “fingerprint, voiceprint, or scan of hand or
`face geometry”—and to “[b]iometric information”—
`which “means any information * * * based on an
`individual’s biometric identifier used to identify an
`individual.” Id. 14/10. BIPA does not apply to
`“photographs” or “information derived from” photo-
`
`
`
`10
`graphs. Id. Private entities that collect or possess
`biometric identifiers or biometric information must
`comply with several requirements. As relevant here,
`they must publish a written retention and destruc-
`tion policy for biometric data; inform individuals “in
`writing,” prior to the collection of biometric data, of
`the purpose and duration of the collection, storage,
`and use of that data; and obtain a “written release.”
`Id. 14/15(a)-(b). BIPA provides a private right of
`action for actual damages or statutory damages of
`$1,000 for a negligent violation or $5,000 for an
`intentional or reckless violation. Id. 14/20(1)-(2).
`B. Procedural History
`1. Facebook users connect with one another by
`adding “friends” and sharing content, including
`photographs. Pet. App. 5a. Facebook allows users to
`“tag” a photo with a friend’s name and a link to her
`account, making photo sharing more personal.
`Facebook notifies users who have been tagged,
`allowing the user to “un-tag” herself from the photo.
`Id. at 5a-6a.
`In 2011, Facebook launched “Tag Suggestions,”
`which helps facilitate this labeling and sharing
`process: When a user uploads a photo, Facebook
`sometimes uses “facial-recognition technology to
`analyze whether the user’s Facebook friends are in”
`the photo. Id. at 6a, 43a. Facebook compares data
`derived from the photo with stored “templates” of a
`subset of the user’s Facebook friends. Id. at 6a.
`Templates do not exist for all users, and Facebook
`does not use this technology to identify non-users or
`users who are not friends with the user who posted
`the photo. See id. at 6a & n.2; Appellant’s Br. at 1, 9
`& n.9, Patel v. Facebook, Inc., 932 F.3d 1264 (9th Cir.
`
`
`
`11
`2019) (No. 18-15982), 2018 WL 6606005 (hereinafter,
`“C.A. Appellant’s Br.”). If there is a match, the user
`is presented with the option of tagging that friend in
`the photo. Pet. App. 6a; C.A. Appellant’s Br. at 1, 9.
`Facebook’s Data Policy—to which all users must
`agree—explains how this works, how long the data
`will be kept, and how to opt out of this feature. If a
`template does exist for a particular user, and the
`user does opt out, the template is deleted and the
`user’s name no longer appears as a suggested “tag”
`when a friend uploads a photo of that user. Face-
`book does not sell this data to, or share it with, third
`parties or use it for advertising purposes. C.A.
`Appellant’s Br. at 1, 9.
`Facebook is headquartered in California. Id. at 9.
`None of the work to develop and implement Face-
`book’s facial-recognition technology took place in
`Illinois. Id.; Pet. App. 68a-69a. And the facial-
`recognition process itself happens, and all templates
`are stored, on Facebook’s servers, none of which is
`located in Illinois. C.A. Appellant’s Br. at 9. Even if
`a Facebook user is located in Illinois, moreover, that
`user may be “tagged” in a photo by a user who is
`located outside Illinois.
`2. In 2015, Plaintiffs Carlo Licata, Adam Pezen,
`and Nimesh Patel—respondents before this Court—
`filed the operative consolidated complaint against
`Facebook in federal district court in California. Pet.
`App. 7a. Plaintiffs alleged that they are Illinois
`residents with active Facebook accounts, and that
`Facebook violated BIPA by obtaining scans of their
`“face geometry” from photos uploaded to Facebook
`without a BIPA-compliant prior notice or written
`
`
`
`12
`release, and without a BIPA-compliant data reten-
`tion policy. Id. (internal quotation marks omitted).
`Facebook moved to dismiss the complaint, arguing
`that under the plain text of the statute, BIPA does
`not apply to “photographs” or “information derived
`from” photographs. In re Facebook Biometric Info.
`Privacy Litig., 185 F. Supp. 3d 1155, 1170 (N.D. Cal.
`2016). Facebook also argued that Plaintiffs’ claims
`were governed by California law under Facebook’s
`terms of service, rather than by Illinois’s BIPA. Id.
`at 1159. The district court denied the motion. It
`held that BIPA excludes only “paper prints,” not
`“digitized images,” from its scope, despite the fact
`that BIPA was enacted in 2008, when digital photog-
`raphy was the norm. Id. at 1171-72. And although
`it found that Plaintiffs had agreed to the choice-of-
`law provision in Facebook’s terms of service, it
`deemed that provision unenforceable on the ground
`that the Illinois legislature had made a “fundamen-
`tal” policy choice that trumped the parties’ choice of
`law. Id. at 1167-70.
`In June 2016, shortly after this Court decided
`Spokeo, Facebook moved to dismiss Plaintiffs’ suit for
`lack of subject-matter jurisdiction. Facebook argued
`that Plaintiffs had not alleged any personal, real-
`world harm. See Pet. App. 28a-29a, 37a. Facebook
`explained that Plaintiffs did not allege that their
`behavior would have been different if the alleged
`BIPA violation had not occurred, or that Plaintiffs
`were otherwise injured in any concrete manner.
`Facebook also cited Plaintiffs’ testimony that they
`had not lost “any money” or “property” or suffered
`“any other harm” as a result of the alleged BIPA
`violation. See id. at 74a-75a, 78a. One Plaintiff
`
`
`
`13
`facial-
`that Facebook’s
`testified
`subsequently
`recognition software was “a nice feature” that he did
`not wish to “opt out of.” Id. at 71a, 73a.
`The district court denied Facebook’s motion, con-
`cluding that “the abrogation of the procedural rights
`mandated by BIPA necessarily amounts to a concrete
`injury,” and no “real-world harm[]” is required. Id.
`at 36a-37a (emphasis omitted). In April 2018, over
`Facebook’s objection, the district court certified a
`Rule 23(b)(3) class of “Facebook users located in
`Illinois for whom Facebook created and stored a face
`template after June 7, 2011.” Id. at 42a. Facebook
`timely petitioned for interlocutory review under Rule
`23(f). Id. at 11a. While the petition was pending,
`the district court denied the parties’ cross-motions
`for summary judgment. In re Facebook Biometric
`Info. Privacy Litig., No. 3:15-CV-03747-JD, 2018 WL
`2197546 (N.D. Cal. May 14, 2018).
`3. The Ninth Circuit granted interlocutory review
`and affirmed. The court first analyzed whether
`BIPA’s statutory requirements “were established to
`protect” an individual’s “concrete interests.” Pet.
`App. 15a (internal quotation marks omitted). The
`court “conclude[d] that an invasion of an individual’s
`biometric privacy rights” has a close relationship to
`traditional privacy claims, regardless of whether the
`individual’s information is disclosed, and thus quali-
`fies as a concrete interest. Id. at 18a-19a. To sup-
`port that conclusion, the Ninth Circuit speculated,
`without any factual basis, about the possibility of
`future misuse of facial-recognition data, noting that
`“it seems likely that a face-mapped individual could
`be identified from a surveillance photo taken on the
`streets” and that “a biometric face template could be
`
`
`
`14
`used to unlock the face recognition lock on that
`individual’s cell phone.” Id. at 19a.
`The court next analyzed “whether the specific pro-
`cedural violations alleged in this case actually harm,
`or present a material risk of harm to,” “concrete
`interests in privacy.” Id. at 20a (internal quotation
`marks omitted). The Ninth Circuit concluded that
`because (in its view) “the privacy right protected by
`BIPA is the right not to be subject to the collection
`and use of * * * biometric data, Facebook’s alleged
`violation of these statutory requirements would
`necessarily violate the plaintiffs’ substantive privacy
`interests.” Id. at 21a. Notably, the Ninth Circuit did
`not evaluate whether each named Plaintiff had
`suffered a personal, real-world harm to his privacy
`as a result of the alleged statutory violation. Simi-
`larly, the Ninth Circuit did not analyze whether
`Plaintiffs had standing in light of their sworn testi-
`mony that they were not injured—and one Plaintiff’s
`testimony that he liked the Tag Suggestions feature.
`Turning to class certification, the Ninth Circuit
`acknowledged that BIPA applies “only if the events
`that are necessary elements of the transaction oc-
`curred ‘primarily and substantially within’ Illinois.”
`
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