Rivera v. Google, Inc.

• Decision Date: 30 August 2021
• Docket Number: 1:16-CV-02714
• Parties: LINDABETH RIVERA and JOSEPH WEISS, on behalf of themselves and all others similarly situated Plaintiffs, v. GOOGLE, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

LINDABETH RIVERA and JOSEPH WEISS, on behalf of themselves and all others similarly situated Plaintiffs, v. GOOGLE, INC., Defendant.

No. 1:16-CV-02714

United States District Court, N.D. Illinois, Eastern Division

August 30, 2021

MEMORANDUM OPINION AND ORDER

EDMOND E. CHANG, JUDGE

This case arises out of Google's collection and retention of biometric facial information. In 2018, this Court granted summary judgment in favor of Google, holding that the Plaintiffs lacked Article III standing. The Plaintiffs appealed to the Seventh Circuit. But as case law developed on standing for claims under the Illinois Biometric Information Privacy Act, all agreed that a remand was appropriate. After the case was remanded, the Plaintiffs moved to stay this federal lawsuit in favor of a parallel case filed in Illinois state court. For the reasons explained in this Opinion, their motion is granted.

I. Background

Invoking the Illinois Biometric Information Privacy Act (now commonly referred to as BIPA), Lindabeth Rivera and Joseph Weiss sued Google for collecting and retaining their face templates through Google Photos. R. 63, Sec. Am. Compl.^[1], ^[2] They have sued on behalf of a proposed class, under Sections 15(a) and 15(b) of BIPA. Id.; 740 ILCS 14/15 §§ (a)-(b). Section 15(a) sets forth requirements on establishing and publishing a retention schedule for biometric information:

(a) A private entity in possession of … biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying … biometric information when the initial purpose for collecting or obtaining such … information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first. …

740 ILCS 14/15(a). Section 15(b) covers a different topic requiring informed consent for the up-front collection of biometric information:

(b) No private entity may collect, capture, … or otherwise obtain a person's or a customer's biometric identifier or biometric information, unless it first:

(1) informs the subject … in writing that … biometric information is being collected or stored;

(2) informs the subject … in writing of the specific purpose and length of term for which … biometric information is being collected, stored, and used; and

(3) receives a written release executed by the subject of the … biometric information ….

740 ILCS 14/15(b).

After the lawsuit's filing, and after a denial of Google's dismissal motion, R. 60, the parties engaged in discovery. Following the close of discovery, the Court granted summary judgment for Google on the basis that the Plaintiffs lacked Article III standing, because they had not suffered a sufficiently concrete harm to satisfy the injury-in-fact requirement. R. 207 at 27. The Plaintiffs appealed to the Seventh Circuit. R. 213. Meanwhile, given the dismissal of the federal case on Article III grounds, the Plaintiffs filed a virtually identical complaint in Illinois state court. R. 238-1, Pls.' Mot. Stay, Exh. A, Rivera State Court Compl. At that time, the Cook County Circuit Court stayed the case pending resolution of the parallel federal proceedings. R. 238-2, Pls.' Mot. Stay, Exh. B, Rivera State Court Stay Order. In the same state court, the Plaintiffs' counsel filed another substantially similar case against Google on behalf of different plaintiffs. R. 238-3, Pls.' Mot. Stay, Exh. C, Azzano State Court Compl. This case, also handled by the same state trial judge, has been stayed too. R. 238-4, Pls.' Mot. Stay, Exh. D, Azzano State Court Stay Order. The Plaintiffs filed yet another similar case on behalf of other plaintiffs in the Northern District of California. R. 242-1, Spear Decl., Exh. B, Molander Compl. That case has also been stayed. R. 242-1, Spear Decl., Exh. E, Molander Stay Order.

While the Plaintiffs' appeal was pending, the Seventh Circuit issued two decisions addressing Article III standing under BIPA. See Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020); Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146 (7th Cir. 2020). Bryant held that plaintiffs suing under Section 15(b) (the informed-consent provision) generally do meet the requirements for Article III standing, because the deprivation of the right to make informed choices about inherently sensitive biometric information is a concrete harm (akin to a privacy invasion). 958 F.3d at 626. On the retention-policy provision (Section 15(a) of the Act), the opinion narrowly held that the injury-in-fact requirement is not met if a person merely complains that the information collector failed to publicly disclose the policy. Id. But then Fox directly confronted a case in which the plaintiff alleged, under Section 15(a), that the defendant failed not only to publicly disclose a retention policy, but failed to develop one and to comply with the statutorily required destruction schedule. 980 F.3d at 1154. Those additional failures-failure to develop and failure to comply with a schedule-did indeed satisfy Article III's concrete-harm requirement. Id. at 1155-56.

In the meantime, the Plaintiffs' appeal was placed in the Seventh Circuit's mediation program. R. 238, Pl.'s Mot. Stay at 3. The mediation efforts proved unsuccessful. But before the filing of opening briefs, Google moved this Court for an indicative ruling in light of the Seventh Circuit's holdings in Bryant and Fox. R. 232. In December 2020, this Court granted Google's motion, holding that “if the Seventh Circuit were to remand this case, then this Court would vacate the judgment that the Plaintiffs lack Article III standing to pursue the claims under Section 15(b), ” but the “judgment would remain intact that the Plaintiffs lack Article III standing under Section 15(a).” R. 235. With the indicative ruling in place, the Seventh Circuit remanded the case to this Court. 7th Cir. No. 19-1182, Dkt. 30. The Plaintiffs concede that this Court still lacks Article III jurisdiction over the Section 15(a) claims concerning the retention policy. See Pls.' Mot. Stay at 1, 6; R. 234 at 1. In January 2021, the Plaintiffs moved to stay this federal action in favor of the parallel state court lawsuit, which, as of June 21, 2021, commenced again after the trial judge lifted the stay there. R. 254.

II. Analysis

Generally speaking, federal courts have an “unflagging obligation” to exercise jurisdiction over cases in which subject matter jurisdiction applies. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976). But a “federal court may stay a suit in exceptional circumstances when there is a concurrent state proceeding and the stay would promote ‘wise judicial administration.'” Clark v. Lacy, 376 F.3d 682, 685 (7th Cir. 2004) (quoting Colorado River, 424 U.S. at 818). The threshold issue is whether the federal and state suits are truly parallel, and then the federal court engages in a balancing of factors: “To determine whether a stay is appropriate in a particular case, a court must conduct a two-part analysis. First, the court must consider whether the concurrent state and federal actions are actually parallel. Then, once it is established that the suits are parallel, the court must consider a number of non-exclusive factors that might demonstrate the existence of exceptional circumstances.” Clark, 376 F.3d at 685 (cleaned up).^[3] The 10 considerations are:

(1) whether the state has assumed jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent forums; (5) the source of governing law, state or federal; (6) the adequacy of state-court action to protect the federal plaintiff's rights; (7) the relative progress of state and federal proceedings; (8) the presence or absence of concurrent jurisdiction;

(9) the availability of removal; and (10) the vexatious or contrived nature of the federal claim.

Id. Like many balancing tests, “no one factor is necessarily determinative, ” and the “weight to be given any one factor is determined solely by the circumstances of the particular case-there is no mechanical formula by which to determine when a stay is appropriate.” Id. at 687 (cleaned up). Tie-breakers go in favor of moving forward in federal court: “because of the presumption against abstention, absent or neutral factors weigh in favor of exercising jurisdiction.” Huon v. Johnson & Bell, Ltd., 657 F.3d 641, 648 (7th Cir. 2011).

On the threshold issue, the Rivera state court action is virtually identical to its federal counterpart here. Given the parallel lawsuits, the Court moves on to weigh the Colorado River factors.

1. Jurisdiction over property. This case does not involve a tug-of-war over real estate or a singular piece of tangible property, so this factor does not apply at all.

2. Inconvenience of federal forum. Both the federal and state court forums are located in Chicago, so there is no inconvenience either way. Although it is true that the Plaintiffs initially filed in federal court, they are now the ones who ask for a stay in favor of the parallel state court lawsuit. So this otherwise neutral factor weighs only modestly against abstention. See Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1021-22 (7th Cir. 2014).

3. Avoiding piecemeal litigation. For this particular case and for its specific circumstances, this is the key consideration, and it weighs heavily in favor of abstention. On remand from the Seventh Circuit, in light of Bryant, this Court only has jurisdiction over the informed-consent claims under Section 15(b) and cannot exercise jurisdiction over the retention-policy claims under Section...