Vance v. Google LLC

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 STEVEN VANCE, et al., Case No. 20-cv-04696-BLF

8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO DISMISS 10 GOOGLE LLC, [Re: ECF No. 108] 11 Defendant.

12 Before the Court is Defendant Google LLC’s (“Defendant”) Motion to Dismiss Amended 13 14 Complaint. ECF 108. Plaintiffs Steven Vance and Tim Janecyk, individually and on behalf of others 15 similarly situated (collectively, “Plaintiffs”), oppose Defendant’s motion. ECF 111. The Court has 16 considered the motion, the relevant portions of the record, and arguments made during a hearing on 17 October 10, 2024. For the reasons described below, Defendant’s Motion is GRANTED IN PART 18 AND DENIED IN PART. 19 20 I. BACKGROUND 21 A. Procedural History 22 Plaintiffs filed their initial complaint on July 14, 2020. ECF 1. The case was stayed pending 23 the resolution of Plaintiffs’ related suit against International Business Machines Corporation 24 (“IBM”), Vance v. IBM, No. 1:20-cv-00577 (N.D. Ill). ECF 33, 36. The Court lifted the stay on 25 26 August 28, 2023. ECF 89. On October 12, 2023, Defendant moved to dismiss the initial complaint. 27 ECF 92. On March 15, 2024, the Court granted Defendant’s motion and dismissed Plaintiffs’ BIPA with prejudice. See ECF 103, Motion to Dismiss Order. On April 15, 2024, Plaintiffs filed an 1 2 amended complaint (“FAC”). ECF 104. On May 31, 2024, Defendant filed the instant motion to 3 dismiss Plaintiffs’ amended complaint. ECF 108. 4 B. Factual Allegations 5 The Court discussed the factual and procedural backgrounds of this case in its previous Order 6 on Defendant’s Motion to Dismiss Complaint. ECF 103. Thus, the Court only summarizes here the 7 facts most relevant to the present motion. 8 Plaintiffs Steven Vance and Tim Janecyk, both Illinois residents, publicly posted 9 10 photographs containing their faces to Flickr, an online photo management and sharing website. ECF 11 104, ¶¶ 29-30, 69-74, 82-88. In or about 2014, Flickr compiled approximately 100 million Flickr 12 photographs into a single dataset (the “Flickr Dataset”) and made the dataset publicly available. Id., 13 ¶ 29. The Flickr Dataset contained those photographs uploaded by lead Plaintiffs and facial images 14 of other Illinois citizens and residents. Id., ¶ 31. The Flickr Dataset also contained substantial 15 information about each photo and its uploader, including unique identifiers, user details, and 16 location data, without the uploader’s knowledge or express consent. Id., ¶¶ 30-34. 17 18 In response to research highlighting bias and deficiencies in facial recognition technology, 19 particularly the "Gender Shades" study released in 2018, IBM created the Diversity in Faces Dataset 20 (“DiF Dataset”) in 2019. Id., ¶¶ 35-42. The DiF Dataset, consisting of one million images from the 21 Flickr Dataset, was designed to improve facial recognition systems' accuracy across diverse 22 populations. Id., ¶¶ 45-48. Without permission from lead Plaintiffs or other class members, IBM 23 scanned the facial geometry of each image contained in the DiF Dataset, extracted biometric 24 25 identifiers and information from those images, including craniofacial features and facial landmark 26 points, and made the DiF Dataset available to other for-profit companies developing facial 27 recognition technologies. Id., ¶¶ 43-53; 75-76; 89-93. Pixel smartphones and Google Photos software applications, obtained the DiF Dataset from IBM. 1 2 Id., ¶¶ 54-56, 59-60. Defendant aimed to improve the fairness and accuracy of its facial recognition 3 products using the DiF Dataset, particularly for the facial unlock features of the Pixel smartphones. 4 Id., ¶¶ 58-65. 5 Plaintiffs allege Defendant has maintained a presence in Illinois since 2000. Id., ¶ 66. By 6 2015, Google had established a large office complex housing 600 employees across 372,000 square 7 feet. Id. By 2019, Google’s presence in Chicago expanded further as it obtained a second office in 8 Chicago with a 132,000-square-foot space and increased its total headcount in Chicago to about 9 10 1,200 employees. Id. Defendant’s Chicago office employed engineers and technical staff and 11 focused on engineering products, including the Pixel smartphone Id., ¶¶ 67-68. The engineering 12 team sought to improve the Pixel smartphones’ face unlock technology using diverse data, which 13 aligned with the content of the DiF Dataset. Id., ¶ 68. 14 15 II. LEGAL STANDARD 16 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 17 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation Force 18 v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 19 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all 20 well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. 21 22 BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not “accept as 23 true allegations that contradict matters properly subject to judicial notice” or “allegations that are 24 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. 25 Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). While a complaint need not 26 contain detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to 27 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when 1 2 it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. On a motion to dismiss, the Court’s review is limited to the face of the complaint and 4 matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); 5 N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). 6 7 III. DISCUSSION 8 A. BIPA Claims 9 The Illinois Biometric Information Privacy Act (“BIPA”) regulates the use of an individual’s 10 biometric data. See 740 ILCS § 14/1, et seq. Under Illinois law, “biometric identifiers” include a 11 “scan of . . . face geometry,” and “biometric information” is “any information . . . based on an 12 individual’s biometric identifier used to identify an individual.” Id. § 14/10. Two BIPA provisions 13 14 are at issue in this case: (1) no private entity may “collect, capture, purchase, receive through trade, 15 or otherwise obtain a person’s or a customer’s biometric identifier or biometric information” without 16 providing written notice and obtaining a written release, id. § 14/15(b) (“Section 15(b)”); and (2) no 17 private entity “in possession of a biometric identifier or biometric information may sell, lease, trade, 18 or otherwise profit from a person’s or a customer’s biometric identifier or biometric information,” 19 id. § 14/15(c) (“Section 15(c)”) (emphasis added). BIPA provides for a private right of action and 20 allows a prevailing party to recover liquidated damages in the amount of: (1) $1,000 or actual 21 22 damages, whichever is greater, for negligent violations and (2) $5,000 or actual damages, whichever 23 is greater, for intentional or reckless violations. Id. § 14/20. BIPA also allows for the recovery of 24 attorneys’ fees and costs and injunctive relief. Id. 25 The Plaintiffs bring two claims under BIPA. First, Plaintiffs allege Defendant violated 26 Section 15(b) because Google collected Plaintiffs’ biometric information “without providing the 27 119. Second, Plaintiffs allege Defendant violated Section 15(c) because it “profited from” Plaintiffs’ 1 2 biometric information. Id., ¶¶ 127-136. Google challenges both BIPA claims on two grounds. First, 3 Google argues that both BIPA claims fail because the FAC still fails to allege the violations 4 “occur[ed] primarily and substantially in Illinois.” ECF 108 at 8. Second, Google argues that 5 Plaintiffs’ claim under Section 15(c) fails because Plaintiffs have still failed to plead Google 6 “otherwise profit[ed] from” Plaintiffs’ biometric information. ECF 108 at 10-15. The Court 7 addresses the arguments in turn. 8 1. Extraterritoriality 9 10 Under Illinois law, a “statute is without extraterritorial effect unless a clear intent in this 11 respect appears from the express provisions of the statute.” Avery v. State Farm Mut. Ins. Co., 835 12 N.E.2d 801, 852 (Ill. 2005) (internal quotation marks omitted). BIPA does not contain an express 13 provision stating it is intended to apply extraterritorially. See Monroy v. Shutterfly, Inc., 2017 WL 14 4099846, at *5 (N.D. Ill. Sept. 15, 2017). Therefore, BIPA violations must occur in Illinois for 15 plaintiffs to obtain any relief. Rivera v. Google Inc., 238 F. Supp. 3d 1088, 1100 (N.D. Ill. 2017) 16 (“[The plaintiffs’] asserted violations of [BIPA] must have taken place in Illinois in order for them 17 18 to win.”). The applicable test is whether the circumstances “occur[ed] primarily and substantially 19 in Illinois.” Avery, 835 N.E.2d at 854; see also Rivera, 238 F. Supp. 3d at 1101. There is “no single 20 formula or bright-line test for determining whether a transaction occurs within [Illinois].” Avery, 21 835 N.E.2d at 854. Rather, “each case must be decided on its own fact.” Id. 22 Defendant contends that Plaintiffs still attempt to apply BIPA extraterritorially and have still 23 failed to plead facts that the alleged violation occurred primarily and substantially in Illinois. ECF 24 25 108 at 8-10. Specifically, Defendant argues that Plaintiffs have failed to allege that Defendant 26 obtained the DiF Dataset in Illinois or that Defendant profited from Plaintiffs’ Biometric Data in 27 Illinois. ECF 108 at 9-10. “primarily and substantially” occurred in Illinois. ECF 111 at 8-10. Specifically, Plaintiffs argue 1 2 that the facts in the FAC and the inferences therefrom establish that Defendant obtained Plaintiffs’ 3 Biometrics and profited from using the Biometrics by improving Defendant’s Pixel Smartphones in 4 Chicago. ECF 111 at 8-9. 5 In the FAC, Plaintiffs allege that 1) the Pixel Smartphones were engineered by Defendant’s 6 engineering team in Chicago, ECF 104, ¶¶ 55-58, 66-68; 2) there were problems with the facial 7 unlock feature of the Pixel smartphones and Google’s effort to solve the problem using its collected 8 face scans failed, id., ¶¶ 56-58, 62; and 3) Google obtained the DiF Dataset from IBM and used the 9 10 DiF Dataset to improve its facial recognition products and technologies, including Pixel 11 Smartphones, id., ¶¶ 59-65. Further, Plaintiffs allege that the DiF Dataset obtained by Defendant 12 included photographs of Plaintiffs, who were Illinois residents, and significant information about 13 those photographs. ECF 104, ¶¶ 46, 53, 60, 69-80, 82-94, 103. 14 The Court finds Plaintiffs have pled sufficient facts from which a reasonable inference could 15 be drawn that the alleged BIPA violations occurred “primarily and substantially” in Illinois. While 16 Defendant correctly points out that Plaintiffs do not allege where Defendant obtained or “otherwise 17 18 profited” from the DiF Dataset (ECF 108 at 9-10), the Court finds that those facts alone “would not 19 necessarily be dispositive.” Rivera v. Google Inc., 238 F. Supp. 3d 1088, 1102 (N.D. Ill. 2017) 20 (finding plaintiffs’ failure to allege a location for the actual BIPA violation did not prevent plaintiffs’ 21 BIPA accusations to survive the motion to dismiss); see also Vance v. Amazon.com Inc. (“Amazon 22 I”), 525 F. Supp. 3d 1301, 1308-09 (W.D. Wash. 2021) (denying the motion to dismiss based on an 23 extraterritoriality challenge and finding discovery appropriate); Vance v. Microsoft Corp. 24 25 (“Microsoft I”), 525 F. Supp. 3d 1287, 1293-94 (W.D. Wash. 2021) (same). As the court in Amazon 26 I and Microsoft I explained, while it is possible that facts discovered during discovery will reveal 27 that the alleged BIPA violations did not occur primarily in Illinois, the Court finds that “more Defendant’s challenge at the motion to dismiss stage that the alleged BIPA violations did not occur 1 2 in Illinois. See Amazon I, 525 F. Supp. 3d at 1308-09; Microsoft I, 525 F. Supp. 3d at 1293. The 3 Court notes that Defendant’s reliance on cases at the summary judgment stage is misplaced because 4 in those cases, after the discovery was completed, the records proved the alleged BIPA violation did 5 not occur in Illinois. ECF 108 at 10 (citing Vance v. Amazon.com, Inc. (“Amazon III”), 2022 WL 6 12306231, at *8 (W.D. Wash. Oct. 17, 2022) and Vance v. Microsoft Corp. (“Microsoft III”), 2022 7 WL 9983979, at *8 (W.D. Wash. Oct. 17, 2022)). 8 In its motion to dismiss, Defendant relies on McGoveran and argues its Rule 12(b)(6) motion 9 10 should be similarly dismissed because Plaintiffs have failed to plead “direct interaction” between 11 themselves and Defendant or the “case’s connections to Illinois.” ECF 108 at 10 (citing McGoveran 12 v. Amazon Web Servs., Inc., No. CV 20-1399-LPS, 2021 WL 4502089, at *4 (D. Del. Sept. 30, 13 2021)). The Court finds McGoveran distinguishable. In McGoveran, the case’s sole connection with 14 Illinois was plaintiffs’ Illinois residency. McGoveran, 2021 WL 4502089, at *4. Defendant 15 Amazon’s data centers, where the alleged BIPA violations occurred, were located in Virginia, Ohio, 16 California, and Oregon, but not Illinois. McGoveran, 2021 WL 4502089, at *4. Unlike McGoveran, 17 18 here, Defendant does not dispute that it has “two Chicago offices with employees who work on 19 Pixel smartphones,” and thus the alleged BIPA violations are plausible. ECF 10. 20 For the above reasons, the Court finds that Plaintiffs have pled enough facts from which 21 reasonable inferences can be drawn to establish a plausible BIPA violation that occurred “primarily 22 and substantially” in Illinois. Avery, 835 N.E.2d at 854; Rivera, 238 F. Supp. 3d at 1101. Thus, the 23 Court DENIES Defendant’s motion to dismiss Plaintiffs’ BIPA claims based on extraterritoriality. 24 25 2. Profit under Section 15(c) 26 Defendant separately moves to dismiss Plaintiff’s claim No. 2, brought under Section 15(c) 27 of BIPA. ECF 108 at 10-15. Defendant argues that Plaintiffs have failed to allege that Defendant used to improve Defendant’s products for profit. See id. In response, Plaintiffs argue that they have 1 2 adequately alleged that Defendant “otherwise profited from” their biometric information in the FAC. 3 ECF 111 at 12-17. 4 a. Interpretation of Section 15(c)’s “otherwise profit from” 5 Section 15(c) of BIPA states that “[n]o private entity in possession of a biometric identifier 6 or biometric information may sell, lease, trade, or otherwise profit from a person's or a customer's 7 biometric identifier or biometric information.” 740 ILCS § 14/15(c). As an initial matter, the parties 8 dispute the scope of “otherwise profit from” language in Section 15(c). 9 10 Defendant argues that Section 15(c) only prohibits “financial benefit” resulting from “an 11 exchange,” such as “profits from a sale, lease of trade.” ECF 108 at 11. Defendant argues that, by 12 applying the canon of ejusdem generis for statutory interpretation, the term “otherwise profit” must 13 be “interpreted as limited in the same way as” its three predecessors—“sell, lease, [and] trade.” ECF 14 108 at 11 (citing Vance v. Microsoft Corp. (“Microsoft II”), 534 F. Supp. 3d 1301, 1306 (W.D. 15 Wash. 2021)); 740 ILCS 14/15(c). According to Defendant, because the three predecessors all 16 “contemplate a transaction in which an item is given or shared in exchange for something of value,” 17 18 the term “otherwise profit” should be limited similarly to “a financial benefit.” ECF 108 at 11 (citing 19 Vance v. Microsoft Corp. (“Microsoft II”), 534 F. Supp. 3d 1301, 1306 (W.D. Wash. 2021)). 20 Plaintiffs argue that Section 15(c) prohibits “private entities using unlawfully obtained 21 Biometrics to improve their commercial products in order to make them more desirable and 22 profitable in the marketplace.” ECF 111 at 12-13 (citing Rosenbach v. Six Flags Entm’t Corp., 129 23 N.E.3d 1197, 1206-07 (Ill. 2019)). To support their position, Plaintiffs argue that the Illinois 24 25 Supreme Court in Rosenbach noted that BIPA imposed a “two-pronged ‘strategy’” to eliminate 26 problems with the collection and use of biometrics information: 1) imposing safeguards to protect 27 customers’ privacy rights, and 2) imposing “substantial potential liability” on private entities for on Thornley where the Seventh Circuit highlighted the incentive of Section 15(c) to make “collect 1 2 or hold” biometric data “not profitable.” ECF 111 at 13 (citing Thornley v. Clearview AI, Inc., 984 3 F.3d 1241, 1247 (7th Cir. 2021)). 4 Interpretation of the term “otherwise profit” in Section 15(c) was fully analyzed by the court 5 in Microsoft II, 534 F. Supp. 3d at 1305-09. As the court in Microsoft II explained, while the term 6 “profit” may have a broader “ordinary meaning” than its three predecessors, the term should not be 7 given its “full and ordinary meaning” because doing so would render the term “superfluous.” 8 Microsoft II, 534 F. Supp. 3d at 1306 (citing Pooh-Bah Enters., Inc. v. Cnty. of Cook, 905 N.E.2d 9 10 781, 799 (2009)). Accordingly, the court in Microsoft II applied the statutory interpretation canon 11 of ejusdem generis and found the term “otherwise profit” in Section 15(c) “encompasses commercial 12 transactions—such as a sale, lease or trade—during which the biometric data is transferred or shared 13 in return for some benefit.” Microsoft II, 534 F. Supp. 3d at 1306. 14 The Court finds persuasive and adopts the interpretation of the term “otherwise profit” 15 provided by Microsoft II. The Court finds this interpretation is supported by the statute itself and by 16 BIPA’s legislative intent—setting a standard for the “safe collection, use and storage of biometrics” 17 18 among private entities and to prevent and deter marketing biometric data. Microsoft II, 534 F. Supp. 19 3d 1307-08; see also Vance v. Amazon.com Inc. (“Amazon II”), 534 F. Supp. 3d 1314, 1323 (W.D. 20 Wash. 2021) (rejecting a broad interpretation of Section 15(c) because it “would prohibit the sale of 21 any product containing biometric technology because any such feature had to be developed or built 22 with biometric data”). The Court disagrees with Plaintiffs that either Rosenbach or Thornley 23 supports their broader interpretation of “otherwise profit.” In Rosenbach, the Illinois Supreme Court 24 25 did not discuss the proper interpretation of Section 15(c). See Rosenbach, 129 N.E.3d at 1206-07. 26 In Thornley, the Seventh Circuit found Section 15(c) “flatly prohibits” certain for-profit transactions 27 involving biometric data made by “the collector or holder of the biometric data.” Thornley, 984 F.3d prohibits “private entities” from using biometrics “to improve their commercial products,” as 1 2 suggested by the Plaintiffs. See id.; ECF 111 at 13. Thus, the Court agrees with other district courts 3 that Section 15(c) “regulates transactions with two components: (1) access to biometric data is 4 shared or given to another; and (2) in return for that access, the entity receives something of value.” 5 See, e.g., Delgado v. Meta Platforms, Inc., 718 F. Supp. 3d 1146, 1159 (N.D. Cal. 2024); Amazon 6 II, 534 F. Supp. 3d at 1322; Microsoft II, 534 F. Supp. 3d 1307. 7 b. Plaintiffs have failed to adequately plead that Defendant violated 8 Section 15(c).

9 Defendant contends that, under the correct interpretation of the term “otherwise profit”, 10 Plaintiffs have failed to adequately plead their Section 15(c) claim because they do not allege that 11 “Defendant exchanged or disclosed their Biometric Data to any third party for a financial benefit” 12 or that it can be inferred from Plaintiffs’ allegations that “their Biometric Data was used to improve 13 14 Google’s products for profit.” ECF 108 at 10-15. In their opposition, Plaintiffs argue that their 15 allegations and the reasonable inferences therefrom establish that Defendant improved its products 16 and technologies and “ultimately profited.” ECF 111 at 14-17. 17 In the FAC, Plaintiffs plead: 1) Defendant acknowledged defects on the face unlock feature 18 of its Pixel smartphone, ECF 104, ¶¶ 54-56; 2) Defendant collected face scans on its own, but the 19 face scans it collected were insufficient “to improve its algorithms and thereby improve the Pixel 20 [smartphones’] accuracy,” id., ¶¶ 57-58; 3) Defendant applied for and gained access to the DiF 21 22 Dataset from IBM, id., ¶¶ 59-61; 4) Defendant was able to “improve the fairness and accuracy of its 23 facial recognition products and technologies,” including its Pixel smartphones, id., ¶¶ 61-62; and 5) 24 Defendant “profited from the biometric identifiers and information allowed Google to improve its 25 facial recognition products and technologies,” id., ¶ 63. 26 The Court finds that Plaintiffs have failed to allege facts to demonstrate that Defendant 27 allege a theory that Defendant “improve[d] the effectiveness of its facial recognition products” using 1 2 the DiF Dataset and that Defendant profited from those improvements as “those products and 3 technologies [became] more valuable in the commercial marketplace.” ECF 104, ¶ 63, 65. The Court 4 notes that the court in Microsoft II rejected similar allegations that “Microsoft used the biometric 5 data to ‘improve its facial recognition products and technologies,’ which ‘improve[d] the 6 effectiveness’ of those products and made them ‘more valuable in the commercial marketplace.’” 7 Microsoft II, 534 F. Supp. 3d at 1309 (alternation in original). The Microsoft II court explained that 8 those allegations were insufficient to “establish that Microsoft disseminated or shared access to 9 10 biometric data through its products.” See id. Similarly here, while Plaintiffs’ alleged facts may 11 establish that Defendant received some benefit from using the DiF Dataset, Plaintiffs have failed to 12 plead any facts plausibly showing that Defendant profited from their biometric data in a manner 13 prohibited by Section 15(c). See id. Indeed, Plaintiffs have failed to allege how Defendant used the 14 DiF Dataset if at all in the Pixel smartphone. ECF 104, ¶¶ 59-61; see Delgado, 718 F. Supp. 3d at 15 1160. 16 The Court also finds the cases cited by Plaintiffs in support of their Section 15(c) claim are 17 18 distinguishable. ECF 111 at 15. In Warmack-Stillwell v. Christian Dior, Inc., the plaintiff alleged in 19 the complaint that Dior used her biometric data to allow her “to see how [Dior’s] sunglasses would 20 look . . . as if she were trying the glasses on in a brick-and-mortar store.” 655 F. Supp. 3d 742, 744 21 (N.D. Ill. 2023). The Northern District of Illinois there found the plaintiff had sufficiently pled her 22 claim under Section 15(c) because Dior used her unique biometric identifiers and biometric 23 information “to improve the customers’ experience on Dior’s website” and profited from the use as 24 25 the sales of its eyewear increased. Id. at 745. Similarly, in In re Clearview, the plaintiffs alleged 26 that, for loss prevention purposes, Defendant Macy’s sought to identify people whose images 27 appeared in surveillance camera footage by comparing the images with biometrics contained in a (N.D. Ill. Jan. 27, 2022), motion to certify appeal denied sub nom. In re Clearview AI, Inc. Consumer 1 2 Priv. Litig., No. 21-CV-0135, 2022 WL 823855 (N.D. Ill. Mar. 18, 2022). The Northern District of 3 Illinois found plaintiffs there adequately pled their claim under Section 15(c) because it was 4 “reasonable to infer that plaintiffs’ biometric information was necessary to Macy’s loss prevention 5 business model.” Id., 2022 WL 252702, at *4. Here, Plaintiffs have not pled any facts similar to 6 those found in the cases they cite, such as Defendant “disseminated or shared access to biometric 7 data through its products.” Microsoft II, 534 F. Supp. 3d at 1309; see Christian Dior, 655 F. Supp. 8 3d at 744; In re Clearview, 2022 WL 252702, at *4; ECF 104, ¶¶ 61-64. 9 10 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiffs’ claim for 11 violation of § 14/15(c) of the Illinois Biometric Privacy Act WITHOUT LEAVE TO AMEND. 12 B. Unjust Enrichment 13 Defendant next challenges Plaintiffs’ unjust enrichment claim as insufficiently pled under 14 Illinois law because Plaintiffs have an adequate remedy at law, and Plaintiffs have not plausibly 15 alleged that they suffered any detriment or Google received a financial benefit. ECF 108 at 16-17. 16 Plaintiffs respond that they have adequately pled their unjust enrichment claim under Illinois law. 17 18 ECF 111 at 20-23. 19 As an initial matter, Defendant contends that, because Plaintiffs’ claims under BIPA fail, 20 Plaintiffs’ unjust enrichment claim under Illinois law necessarily fails because the unjust enrichment 21 claim is tied to BIPA claims. ECF 108 at 15; ECF 108 at 10-11. Under Illinois law, “if an unjust 22 enrichment claim rests on the same improper conduct alleged in another claim, then the unjust 23 enrichment claim will be tied to this related claim—and, of course, unjust enrichment will stand or 24 25 fall with the related claim.” Cleary v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011). As 26 explained above, the Court finds Plaintiffs have plausibly pled their claim for violation of § 14/15(b) 27 of the Illinois Biometric Privacy Act. Thus, the Court rejects Defendant’s argument on the basis that Defendant next contends that Plaintiffs have failed to plead facts supporting the elements of 1 2 unjust enrichment. To plead a claim of unjust enrichment under Illinois law, “a plaintiff must allege 3 that the defendant has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s 4 retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” 5 Cleary, 656 F.3d at 516 (internal quotation omitted). Here, the Court finds that Plaintiffs have 6 adequately pled an unjust enrichment claim under Illinois law. With respect to “unjustly retained a 7 benefit,” Plaintiffs allege that Google obtained the DiF Dataset from IBM “in order to improve the 8 fairness and accuracy of its facial recognition products and technologies,” and profited1 from such 9 10 improvements. ECF 104, ¶¶ 59-65. With respect to “detriment,” Plaintiffs allege that they have 11 sustained and will continue to suffer injuries because “Google exposed [them] to ongoing privacy 12 risks,” “deprive[d] [them] of their statutorily-protected privacy rights,” and caused them to be more 13 “likely to withdraw from biometric-facilitated transactions and other facially-mediated electronic 14 participation.” Id., ¶¶ 96-102. Indeed, as discussed above, the Court finds Plaintiffs have alleged 15 facts from which a reasonable inference could be drawn that Google’s conduct violated BIPA. Thus, 16 the Court finds Plaintiffs have pled the elements of unjust enrichment. See Vance v. Int’l Bus. 17 18 Machines Corp., No. 20-C-577, 2020 WL 5530134, at *5 (N.D. Ill. Sept. 15, 2020) (finding 19 plaintiffs have sufficiently pleaded the elements of unjust enrichment based on similar facts). 20 Lastly, Defendant contends that Plaintiffs have failed to plead that they lack an adequate 21 remedy at law. ECF 108 at 17. Under Illinois law, unjust enrichment is an equitable claim. See Hess 22 v. Kanoski &Y Assocs., 668 F.3d 446, 455 (7th Cir. 2012). The Ninth Circuit has held that plaintiffs 23 seeking equitable relief in a federal court must establish that they lack an adequate remedy at 24 25 law. See Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020); see also Philips v. 26 27 Ford Motor Co., 2015 WL 4111448, at *16 (N.D. Cal. July 7, 2015) (citing Knox v. Phoenix 1 2 Leasing, Inc., 29 Cal. App. 4th 1357, 1368 (1994)) (“A plaintiff seeking equitable relief in California 3 must establish that there is no adequate remedy at law available.”); Schroeder v. United States, 569 4 F.3d 956, 963 (9th Cir. 2009) (“[E]quitable relief is not appropriate where an adequate remedy exists 5 at law.”). 6 The Court finds Plaintiffs have failed to establish they lack an adequate remedy at law as to 7 their claims for restitution or disgorgement. In the FAC, Plaintiffs conclusively plead that “Plaintiffs 8 and Class Members have no adequate remedy at law.” ECF 104, ¶ 133. But Plaintiffs fail to allege 9 10 any specific facts showing that the restitution or disgorgement they seek would exceed the legal 11 remedies available to them under BIPA. See Sonner, 971 F.3d at 844; see also Nacarino v. Chobani, 12 LLC, No. 20-cv-07437-EMC, 2021 WL 3487117, at *12 (N.D. Cal. Aug. 9, 2021) (dismissing the 13 plaintiff’s claims for restitution and disgorgement because she failed to allege any specific facts 14 showing legal damages are necessarily inadequate). 15 Nonetheless, the Court finds Plaintiffs are not barred from seeking equitable relief in the 16 form of an injunction under Illinois unjust enrichment law to the extent their claims are based on 17 18 alleged future harm. See Sonner, 917 F.3d at 842 (“Injunctive relief is not at issue.”); Nacarino, 19 2021 WL 3487117, at *12 (explaining Sonner does not bar injunctive relief where plaintiff alleges 20 future harms). Here, in the FAC, Plaintiffs allege Defendant “should not be permitted to retain” the 21 biometric identifiers and information that it “unlawfully obtained.” ECF 104, ¶ 135. Thus, the Court 22 finds Plaintiffs have sufficiently pled the likelihood of future harm for which they have no adequate 23 remedy at law. See Grausz v. Hershey Co., 691 F. Supp. 3d 1178, 1194 (S.D. Cal. 2023). 24 25 For the reasons above, the Court GRANTS Defendant’s motion to dismiss Plaintiffs’ claim 26 for unjust enrichment to the extent it is seeking equitable relief in the form of restitution and 27 disgorgement WITHOUT LEAVE TO AMEND and DENIES Defendant’s motion to dismiss 1 injunction. See, e.g., Grausz, 691 F. Supp. 3d at 1194 (S.D. Cal. 2023) (granting motion to dismiss 2 || forclaims seeking equitable relief in the form of restitution and denying motion to dismiss for claims 3 seeking equitable relief in the form of injunctive relief). 4 5 IV. ORDER

6 For the foregoing reasons, IT IS HEREBY ORDERED that: 7 1. Defendant’s motion to dismiss Plaintiffs’ first claim for violation of § 14/15(b) of 8 the Illinois Biometric Privacy Act is DENIED; 9 2. Defendant’s motion to dismiss Plaintiffs’ second claim for violation of § 14/15(c) of 10 the Illinois Biometric Privacy Act is GRANTED WITHOUT LEAVE TO AMEND; 11 and a B 3. Defendant’s motion to dismiss Plaintiffs’ third claim for unjust enrichment under

14 Illinois law is DENIED to the extent it is seeking injunctive relief and GRANTED

3 15 WITHOUT LEAVE TO AMEND to the extent it is seeking restitution and a 16 disgorgement.

= 17

4 18 Dated: December 5, 2024

20 BETH LABSON FREEMAN 2 United States District Judge 23 24 25 26 27 28