Vance et al v. Amazon.com Inc, No. 2:2020cv01084 - Document 38 (W.D. Wash. 2021)
Court Description: ORDER denying Defendant's remainder of 18 Motion to Dismiss for Failure to State a Claim. Signed by Judge James L. Robart. (LH)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 STEVEN VANCE, et al., CASE NO. C20-1084JLR ORDER DENYING REMAINDER OF AMAZON’S MOTION TO DISMISS Plaintiffs, 11 v. 12 13 AMAZON.COM INC., Defendant. 14 15 16 I. INTRODUCTION Before the court are two remaining portions of Defendant Amazon.com Inc.’s 17 (“Amazon”) motion to dismiss. (See MTD (Dkt. #18).) Plaintiffs Steven Vance and Tim 18 Janecyk (collectively, “Plaintiffs”) oppose Amazon’s motion. (Resp. (Dkt. # 24).) At the 19 direction of the court, both parties filed supplemental briefs to address (1) the 20 interpretation of “otherwise profit from” in § 15(c) of Illinois’s Biometric Information 21 Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”); and (2) whether Washington or Illinois 22 law should govern Plaintiffs’ unjust enrichment claim. (Def. Supp. Br. (Dkt. # 35); Pls. ORDER - 1 1 Supp. Br. (Dkt. # 36); 3/15/21 Order (Dkt. # 34) at 23-24.) The court has considered the 2 motion, the supplemental briefing, the relevant portions of the record, and the applicable 3 law. The court additionally held oral arguments on April 13, 2021. (See 4/13/21 Min. 4 Entry (Dkt. # 37).) Being fully advised, the court DENIES Amazon’s motion to dismiss. 5 II. 6 BACKGROUND The court discussed the factual and procedural backgrounds of this case in its 7 previous order on the other portions of Amazon’s motion to dismiss. (See 3/15/21 Order 8 at 2-5.) Thus, it only summarizes here the facts most relevant to the remaining portions 9 of the motion.1 10 Plaintiffs are Illinois residents who uploaded photos of themselves to the 11 photo-sharing website Flickr. (Compl. (Dkt. # 1) ¶¶ 6-7, 28, 66-67, 75.) Both were in 12 Illinois when uploading the photos. (Id. ¶¶ 66, 75.) Unbeknownst to them, Flickr, 13 through its parent company Yahoo!, compiled their photos along with hundreds of 14 millions of other photographs posted on the platform into a dataset (“Flickr dataset”) that 15 it made publicly available for those developing facial recognition technology. (Id. 16 ¶¶ 29-32.) International Business Machines Corporation (“IBM”) created facial scans 17 from the photographs in the Flickr dataset to create a new dataset called Diversity in 18 Faces, which contained facial scans of Plaintiffs and other Illinois residents. (Id. 19 ¶¶ 42-43.) Amazon obtained the Diversity in Faces dataset, including Plaintiffs’ facial 20 // 21 22 1 For the purposes of a motion to dismiss, the court accepts all well-pleaded allegations in Plaintiffs’ complaint as true and draws all reasonable inferences in favor of Plaintiffs. See Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). ORDER - 2 1 scans, from IBM. (Id. ¶¶ 55-56.) No company in this chain of events—Flickr, Yahoo!, 2 IBM, or Amazon—informed or obtained permission from Plaintiffs for the use of their 3 photographs or facial scans. (Id. ¶¶ 30, 47, 71-72, 79-80.) 4 Amazon used the Diversity in Faces dataset to improve “the fairness and accuracy 5 of its facial recognition products,” which “improve[d] the effectiveness of its facial 6 recognition technology on a diverse array of faces” and in turn made those products 7 “more valuable in the commercial marketplace.” (Id. ¶¶ 64-65.) Amazon’s main facial 8 recognition product is Amazon Rekognition, which “allows users to match new images of 9 faces with existing, known facial images.” (Id. ¶ 55.) Amazon Rekognition is “a 10 fundamental cornerstone” of other Amazon consumer products and services, including 11 Amazon’s photo platform; Amazon’s smart home systems and cameras, such as the Ring 12 home security cameras; and Amazon’s virtual assistant technology Alexa. (Id. ¶ 56.) 13 Amazon also provides facial recognition technology and markets its Rekognition 14 technology to law enforcement agencies, such as ICE and the FBI, to monitor individuals 15 they consider “people of interest.” (Id. ¶ 57.) 16 Plaintiffs assert various claims in their class action suit against Amazon. (See 17 generally id.) Relevant here are two of those claims: (1) violation of § 15(c) of BIPA (id. 18 ¶¶ 106-12); and (2) unjust enrichment (id. ¶¶ 113-22).2 The court in its March 15, 2021, 19 order found that additional briefing from the parties would be beneficial, as neither party 20 meaningfully analyzed critical legal questions behind both claims in their original 21 Amazon also challenged Plaintiffs’ other claims, and the court resolved those challenges in its previous order. (See 3/15/21 Order at 6-19, 23.) 2 22 ORDER - 3 1 briefing. (3/15/21 Order at 20, 22-23.) Specifically, the court ordered the parties to file 2 supplemental briefing on (1) “the definition of ‘otherwise profit from’ in the context of 3 § 15(c)”; and (2) “which state law should govern [Plaintiffs’ unjust enrichment claim] 4 under Washington’s ‘most significant relationship’ test.” (Id.) The parties subsequently 5 filed their supplemental briefing. (See Pls. Supp. Br.; Def. Supp. Br.) 6 7 III. ANALYSIS When considering a motion to dismiss under Rule 12(b)(6), the court construes the 8 complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. 9 Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept 10 all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. 11 Wyler Summit P’ship, 135 F.3d at 661. The court, however, is not required “to accept as 12 true allegations that are merely conclusory, unwarranted deductions of fact, or 13 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th 14 Cir. 2001). “To survive a motion to dismiss, a complaint must contain sufficient factual 15 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 16 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 17 570 (2007)); see also Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 18 2010). “A claim has facial plausibility when the plaintiff pleads factual content that 19 allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 677-78. Dismissal under Rule 12(b)(6) can be 21 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 22 under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 ORDER - 4 1 (9th Cir. 1990). Utilizing this standard, the court addresses the BIPA § 15(c) and unjust 2 enrichment claims in turn. 3 A. Profit Under BIPA § 15(c) Section 15(c) states that “[n]o private entity in possession of a biometric identifier 4 5 or biometric information may sell, lease, trade, or otherwise profit from a person’s or a 6 customer’s biometric identifier or biometric information.” 740 ILCS 14/15(c). The 7 parties disagree on how broadly to read “otherwise profit from.” Amazon argues that 8 “otherwise profit” requires “an entity receiving a pecuniary benefit in exchange for a 9 person’s biometric data.” (MTD at 21; Def. Supp. Br. at 1.) Plaintiffs propose that 10 “otherwise profit” means any use of biometric data that generates profits. (Resp. at 21; 11 Pls. Supp. Br. at 3-4.) The court finds that the proper interpretation of §15(c) falls 12 somewhere in between the two parties’ proposals. 13 The court begins, as it must, with the statutory language. See Lacey v. Village of 14 Palatine, 904 N.E.2d 18, 26 (Ill. 2009). “Profit” as a verb means “to be of service or 15 advantage” or “to derive benefit.” Profit, Merriam-Webster.com, https://www.merriam- 16 webster.com/dictionary/profit (last accessed Apr. 1, 2021); see also Profit, Oxford 17 English Dictionary, https://www.oed.com/view/Entry/152098 (last accessed Apr. 1, 18 2021) (defining “profit” as “[t]o be of advantage or benefit to”). “Otherwise” means 19 “[i]n a different manner; in another way, or in other ways.” Black’s Law Dictionary 20 1101 (6th ed. 1990). Thus, in the context of § 15(c), sale, lease or trade are examples of 21 what the Illinois legislature had in mind as ways to derive benefit from biometric data, 22 // ORDER - 5 1 but the statute leaves room for other ways resembling those examples to gain an 2 advantage. 3 When a statute, like § 15(c), “specifically describes several classes of persons or 4 things and then includes ‘other persons or things,’ the word ‘other’ is interpreted to mean 5 ‘other such like.’” Pooh-Bah Enters., Inc. v. Cnty. of Cook, 905 N.E.2d 781, 799 (Ill. 6 2009); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001) (discussing how 7 general terms that follow more specific terms “embrace only objects similar in nature to 8 those objects enumerated by the preceding specific words”). This “cardinal rule of 9 statutory construction” is known as ejusdem generis, and it is a “common drafting 10 technique” to save the legislature “from spelling out in advance every contingency in 11 which the statute could apply.”3 Pooh-Bah Enters., 905 N.E.2d at 799 (quoting 2A N. 12 Singer & J. Singer, Sutherland on Statutory Construction § 47:17, at 370-73 (7th ed. 13 2007)) (internal quotation marks omitted). Thus, the general catchall is not “given [its] 14 full and ordinary meaning” because to do so would render the specific words superfluous. 15 Id.; see also id. (“If the legislature had meant the general words to have their unrestricted 16 sense, it would not have used the specific words.”). 17 Accordingly, applied to § 15(c), “otherwise profit” should be interpreted in light of 18 the terms that precede it: sell, lease and trade. See 740 ILCS 14/15(c). All three of these 19 terms contemplate a transaction in which an item is given or shared in exchange for 20 Contrary to Plaintiffs’ contention, ejusdem generis applies equally to verbs. (See Resp. at 21.) Courts have applied this canon to actions as well as persons or things. See, e.g., Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018) (applying ejusdem generis canon to “form[ing], join[ing], or assist[ing] labor organizations”); (Reply (Dkt. # 25) at 10-11.) 3 21 22 ORDER - 6 1 something of value. See Sell, Merriam-Webster.com, https://www.merriam- 2 webster.com/dictionary/sell (last accessed Mar. 31, 2021) (defining “sell” as “to give 3 up . . . to another for something of value”); Lease, Oxford English Dictionary, 4 https://www.oed.com/view/Entry/106734 (last accessed Mar. 31, 2021) (defining “lease” 5 as “[t]o grant the possession or use of (lands, etc.) by a lease”); Trade, Oxford English 6 Dictionary, https://www.oed.com/view/Entry/204275 (last accessed Mar. 31, 2021) 7 (defining “trade” as “[t]o exchange (goods, commodities, etc.) on a commercial basis; to 8 cause to change hands”). Similarly then, while “profit” may have a broader “ordinary 9 meaning,” see Pooh-Bah Enters., 905 N.E. 2d at 799, in the context of the enumerated 10 terms, “otherwise profit” encompasses commercial transactions—such as a sale, lease or 11 trade—during which the biometric data is transferred or shared in return for some benefit. 12 Thus, § 15(c) regulates transactions with two components: (1) access to biometric 13 data is shared or given to another; and (2) in return for that access, the entity receives 14 something of value. As to the first component, the biometric data itself may be the 15 product of the transaction, such as in a direct sale. Or the biometric data may be so 16 integrated into a product that consumers necessarily gain access to biometric data by 17 using the product or service. As to the second component, the court disagrees with 18 Amazon’s contention that the biometric data must be provided “in exchange for money.” 19 (See MTD at 21.) Not all the enumerated examples involve monetary benefits. For 20 instance, one could trade for something of value that is not money. Thus, it does not 21 follow that “otherwise profit” must also be limited to a pecuniary benefit. Section 15(c) 22 // ORDER - 7 1 prohibits the commercial dissemination of biometric data for some sort of gain, whether 2 pecuniary or not. 3 This reading of § 15(c) aligns with the legislative intent expressed in BIPA. See 4 740 ILCS 14/5. BIPA was designed to “regulate and promote, not inhibit,” the use of 5 biometric technology. See Vigil v. Take-Two Interactive Software, Inc., 235 F. Supp. 3d 6 499, 512 n.9 (S.D.N.Y. 2017). The legislature recognized the benefits of using 7 biometrics but understood that if biometrics are “compromised, the individual has no 8 recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric 9 facilitated transactions.” 740 ILCS 14/5(a), (c). To counteract that public “wear[iness]” 10 and to encourage those who may be “deterred from partaking in biometric 11 identifier-facilitated transactions,” the legislature enacted BIPA’s additional regulations. 12 Id. 14/5(d)-(e), (g). Thus, BIPA was not intended to stop all use of biometric technology; 13 instead, it set a standard for the safe collection, use, and storage of biometrics, including 14 protecting against the public’s main fear that their biometric data would be widely 15 disseminated. Section 15(c) achieves that goal by prohibiting a market in the transfer of 16 biometric data, whether through a direct exchange—sale, lease or trade—or some other 17 transaction where the product is comprised of biometric data. 18 To that end, Plaintiffs are correct that BIPA, and § 15(c) in particular, aims to 19 “eliminate the incentive” behind marketing biometric data. (See Pls. Supp. Br. at 2-3 20 (citing Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1247 (7th Cir. 2021) (analyzing 21 standing under § 15(c)).) But Plaintiffs’ argument goes astray when it assumes that BIPA 22 sought “to eliminate the incentive for private entities to collect, possess or disseminate ORDER - 8 1 biometrics” in any fashion. (Id. at 2.) Not so, as BIPA’s legislative intent makes clear. 2 See 740 ILCS 14/5(a). Instead, BIPA sought to control the unauthorized collection, 3 possession or dissemination of biometric data, and § 15(c) operates to remove one main 4 incentive of sharing biometric data—to exchange it for some benefit.4 Indeed, Plaintiffs’ reading of § 15(c)—prohibition of any use of biometric data 5 6 that brings a benefit—would lead to absurd results that contravene BIPA itself. As 7 acknowledged by Plaintiffs in oral argument, § 15(c) is a flat-out prohibition. See 740 8 ILCS 14/15(c). In other words, unlike the collection, possession or dissemination of 9 biometric data, no private entity may “otherwise profit” from biometric data even if they 10 inform and obtain permission from the subject. Compare, e.g., 740 ILCS 14/15(d) 11 (allowing dissemination of biometric data with consent from subject), with 740 ILCS 12 14/15(c) (containing no exceptions). Taken to its logical end, Plaintiffs’ reading of 13 § 15(c) would prohibit the sale of any product containing biometric technology because 14 any such feature had to be developed or built with biometric data. (See Compl. ¶¶ 15, 15 24-25 (describing how all facial recognition technology utilizes biometric data).) For 16 instance, a company could not sell biometric timekeeping systems—or any product with 17 a biometric feature—because it was presumably developed using biometric data. 18 // 19 20 21 22 Although dicta, Thornley makes clear that it interpreted § 15(c) to “prohibit[] the operation of a market in biometric [data],” not all technology based on biometric data. 984 F.3d at 1247. Analogizing to other laws such as those prohibiting the sale of migratory birds, the Seventh Circuit recognized that these laws aim to “eliminate the market for such material.” Id. In other words, the law removes an incentive behind the dissemination of these materials to control the spread of that material. The same holds true here. By prohibiting for-profit transactions involving biometric data, BIPA aims to control the spread of biometric data. 4 ORDER - 9 1 Similarly, no company could use that biometric timekeeping system because it uses 2 employees’ biometric data to streamline operations and decrease costs. Nothing—not 3 BIPA’s statutory language, its stated intent, or any authority analyzing § 15(c)—supports 4 such a broad reading.5 5 At oral argument, Plaintiffs relied on the exemptions laid out in § 25 of BIPA as a 6 limiting principle, but that section does not resolve the absurdity discussed above. 7 Section 25 provides limited scenarios that are exempt from BIPA. See 740 ILCS § 14/25. 8 For instance, the act shall not apply “to a financial institution or an affiliate of a financial 9 institution that is subject to Title V of the federal Gramm-Leach Bliley Act of 1999” or to 10 “a contractor, subcontractor, or agency of a State agency or local unit of government 11 when working for that [entity].” Id. 14/25(c), (e). But this provision does not reach the 12 scenarios discussed above, where a private entity necessarily uses biometric data—even 13 if lawfully obtained—to develop biometric technology. Nor does § 25 alter the intent 14 expressed in § 5 that BIPA did not intend to stop all use of biometric technology, 15 especially those that BIPA recognized as potentially beneficial. See 740 ILCS 14/5. 16 Adopting Plaintiffs’ reading would do just that. 17 // 18 // 19 20 21 22 5 Courts that have opined on the scope of § 15(c) in the context of standing have generally rejected such a broad reading. For instance, in Hazlitt v. Apple Inc., --- F.3d ----, 2020 WL 6681374 (S.D. Ill. 2020), the court noted that “by its plain language,” § 15(c) does not prohibit “the general sales of devices equipped with facial recognition technology.” Id. at *7. Similarly, in Vigil, the court explained that “otherwise profiting” is best read as “a catchall for prohibiting commercially transferring biometric [data],” which does not reach the sale of a product with a biometric-related feature. 235 F. Supp. 3d at 512 n.9. ORDER - 10 1 Reading § 15(c) to prohibit for-profit transactions of biometric data also comports 2 with the one court to have analyzed § 15(c)’s reach. In Flores v. Motorola Solutions, 3 Inc., No. 1:20-cv-01128, 2021 WL 232627 (N.D. Ill. Jan. 8, 2021), plaintiffs alleged that 4 the defendant used biometric data to develop a database that allowed customers to search 5 for facial matches. Id. at *3. Thus, using the product—“compar[ing] novel images to the 6 database images to find facial matches”—necessarily allowed customers to gain access to 7 the underlying biometric data. See id. In other words, without the identified biometric 8 data, there would be no product to speak of. See id. Concluding that “biometric data is a 9 necessary element to Defendant’s business model,” the court declined to say that this 10 activity does not constitute “otherwise profiting from” biometric data. Id. Flores 11 illustrates one example of how a company could “otherwise profit” from biometric data 12 without directly selling it: by creating technology that is so intertwined with the biometric 13 data that marketing the technology is essentially disseminating biometric data for profit. 14 Flores is directly analogous to the allegations here. Plaintiffs allege that amongst 15 its many uses of facial recognition technology, Amazon’s Rekognition “allows users to 16 match new images of faces with existing, known facial images ‘based on their visual 17 geometry.’” (Compl. ¶ 55.) Rekognition, and its face-matching feature, is then 18 incorporated into many other Amazon products. (Id. ¶ 56.) Amazon’s customers, 19 including law enforcement agencies, utilize Rekognition to “monitor individuals they 20 consider ‘people of interest’” in their criminal investigations. (Id. ¶ 57.) Like in Flores, 21 these allegations support the inference that the biometric data is itself so incorporated into 22 Amazon’s product that by marketing the product, it is commercially disseminating the ORDER - 11 1 biometric data. (See id. ¶¶ 55-57); see 2021 WL 232627, at *3. These allegations also 2 support the inference that Amazon received some benefit from the biometric data through 3 increased sales of its improved products. (See Compl. ¶ 65.) It is certainly possible that 4 with further factual development, it is discovered that Amazon does not so integrate 5 biometric data, or the Diversity in Faces database in particular, into its products. But at 6 this stage, because Plaintiffs’ factual allegations allow for the reasonable inference that 7 selling Amazon’s products necessarily shares access to the underlying biometric data in 8 exchange for some benefit to Amazon, the court concludes that Plaintiffs have 9 sufficiently stated a claim under § 15(c). See 2021 WL 232627, at *3. 10 B. Unjust Enrichment 11 As the court articulated in its previous order, Amazon challenges Plaintiffs’ unjust 12 enrichment claim as insufficiently pleaded under Washington law, but Plaintiffs maintain 13 that the claim is sufficiently pleaded under Illinois law. (3/15/21 Order at 21.) The court 14 concluded that under step one of Washington’s two-step approach to choice-of-law 15 questions, an actual conflict between Washington and Illinois law exists over whether 16 Plaintiffs must plead that they suffered an economic expense distinct from a privacy 17 harm. (Id. at 21-22.) Because an actual conflict exists, the court must, at step two, 18 determine which state has the “most significant relationship” to the instant claim. (Id. at 19 22.) Washington’s “most significant relationship” test also consists of two steps. Coe v. 20 Philips Oral Healthcare Inc., No. C13-0518MJP, 2014 WL 5162912, at *3 (W.D. Wash. 21 Oct. 14, 2014). First, the court considers the states’ relevant contacts to the cause of 22 action. Johnson v. Spider Staging Corp., 555 P.2d 997, 1000-01 (Wash. 1976). Second, ORDER - 12 1 if those contacts are evenly balanced, the court considers “the interests and public 2 policies of [the two] states and . . . the manner and extent of such policies as they relate to 3 the transaction in issue.” Id. at 1001. 4 At the outset, the parties disagree on which contacts should guide the analysis. 5 Amazon argues that Restatement § 221 governs restitution claims, such as Plaintiffs’ 6 unjust enrichment claim. (Def. Supp. Br. at 5.) Plaintiffs urge for application of 7 Restatement § 152, which governs invasion of privacy claims, or alternatively, 8 Restatement § 145, which applies generally to torts. (Pls. Supp. Br. at 7.) The court 9 determines that § 221 is most applicable here. The commentary to § 221 plainly states 10 that it “applies to claims, which are based neither on contract nor on tort, to recover for 11 unjust enrichment.” Restatement (Second) of Law on Conflict of Laws § 221(1) cmt. a. 12 Although Plaintiffs are correct that the underlying issues involve privacy, Plaintiffs do 13 not, as in their cited authority, bring an invasion of privacy tort claim. (See Pls. Supp. Br. 14 at 8); see, e.g., Cooper v. Am. Exp. Co., 593 F.2d 612, 612 (5th Cir. 1979) (invasion of 15 privacy claim); York Grp. Inc. v. Pontone, No. 10-cv-1078, 2014 WL 896632, at *33 16 (W.D. Pa. Mar. 6, 2014) (tortious surveillance claim). Indeed, Plaintiffs provide no 17 authority applying §§ 152 or 145 to an unjust enrichment claim. (See Pls. Supp. Br.) 18 Restatement § 221 provides that: 19 In actions for restitution, the rights and liabilities of the parties with respect to the particular issue are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. 20 21 // 22 ORDER - 13 1 Restatement (Second) of Law on Conflict of Laws § 221(1). Section 6, in turn, identifies 2 the following principles as relevant to the choice-of-law analysis: 3 (a) (b) (c) 4 5 (d) (e) (f) (g) 6 The needs of the interstate and international systems, The relevant policies of the forum, The relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, The protection of justified expectations, The basic policies underlying the particular field of law, Certainty, predictability and uniformity of result, and Ease in the determination and application of the law to be applied. 7 Restatement (Second) of Law on Conflict of Laws § 6(2). In applying these principles of 8 § 6, the following contacts should be taken into account: 9 (a) 10 11 (b) (c) 12 (d) 13 (e) 14 The place where a relationship between the parties was centered, provided that the receipt of enrichment was substantially related to the relationship, The place where the benefit or enrichment was received, The place where the act conferring the benefit or enrichment was done, The domicil, residence, nationality, place of incorporation and place of business of the parties, and The place where a physical thing, such as land or a chattel, which was substantially related to the enrichment, was situated at the time of the enrichment. 15 Restatement (Second) of Law on Conflict of Laws § 221(2). The court’s approach is not 16 merely to count contacts but rather to consider which contacts are the most significant 17 and where those contacts are found. Johnson, 555 P.2d at 1000. 18 Three of these contacts identified by § 221 are neutral in the unique circumstances 19 presented by this case and thus have little bearing on the court’s choice-of-law analysis. 20 The parties’ relationship is not centered in any one place, as Plaintiffs did not directly 21 // 22 ORDER - 14 1 interact with Amazon or its products.6 (See Compl. ¶¶ 60-63; 68-71); see Veridian Credit 2 Union v. Eddie Bauer, LLC, 295 F. Supp. 3d 1140, 1154 (W.D. Wash. 2017) (finding this 3 factor to bear “little, if any, weight” when parties did not contract with one another). 4 Second, there is no “physical thing, such as land or a chattel,” related to the enrichment. 5 Restatement (Second) of Law on Conflict of Laws § 221(2)(e). Instead, Plaintiffs’ 6 allegations revolve around the benefits obtained from intangible notions of biometric data 7 and facial recognition technology. Thus, this factor, too, is neutral. 8 9 Lastly, the place where the benefit was received is also neutral. Amazon is based in Washington and thus would have received benefits in Washington from increased 10 product sales. (Compl. ¶ 8; see Def. Supp. Br. at 7.) However, Plaintiffs also allege that 11 Amazon incorporates its facial recognition technology into its “largest consumer products 12 and services around the world” and thus allows the reasonable inference that Amazon 13 received benefits in many places. (Compl. ¶ 56.) Moreover, Amazon is “the largest 14 provider of facial recognition technology to law enforcement agencies,” including ICE, 15 the FBI, and more than 1,300 law enforcement agencies across the country. (Id. ¶ 57.) 16 Thus, Amazon’s nation-wide reach, as alleged, supports the inference that the place 17 where the benefit was received may span many states. (See id.) Thus, although usually 18 of greatest importance when there is no relationship between the parties, this factor also 19 // 20 21 22 6 The enrichment Amazon allegedly received was unjust specifically because of the lack of relationship with Plaintiffs, as the unjustness stems from the lack of consent from Plaintiffs in Illinois. Thus, it is unclear whether this first factor, which is identified as the contact “given the greatest weight,” would ever be applicable in cases such as these. See Restatement (Second) of Law on Conflict of Laws § 221(2) cmt. d. ORDER - 15 1 does not weigh strongly in favor of one state over another. See Restatement (Second) of 2 Law on Conflict of Laws § 221(2)(d) (assigning this factor “little or no weight” when 3 place where benefit was received “bears little relation to the occurrence . . . or where this 4 place cannot be identified”). 5 The two remaining factors lean towards application of Illinois law. The place 6 where the act conferring the benefit occurred will be given “[p]articular weight” if it 7 differs from the place where the benefit was received or if the place where the benefit 8 was received cannot be identified. Restatement (Second) of Law on Conflict of Laws 9 § 221(2) cmt. d. Plaintiffs conferred the benefit in Illinois, as they and all putative class 10 members are Illinois residents who uploaded Illinois-created content in Illinois. (Compl. 11 ¶¶ 6-7, 66-70, 74-77, 83.) Although there are other acts in the chain of events leading to 12 Amazon benefiting off of Plaintiffs’ biometric data, including actions Amazon allegedly 13 took itself (see Def. Supp. Br. at 7), the core of the benefit lies in Plaintiffs providing 14 images of their faces—albeit unknowingly—that ultimately improved Amazon’s products 15 (see Compl. ¶¶ 62-65, 114-17). Thus, this factor, which is assigned particular weight 16 given the neutrality of the place where the benefit was received, counsels application of 17 Illinois law. See Restatement (Second) of Law on Conflict of Laws § 221(2) cmt. d. 18 Moreover, the domicil and place of business of the parties tip towards Illinois. 19 Although Amazon is headquartered in Washington (id. ¶¶ 8-9), “[t]he fact that one of the 20 parties is domiciled in a particular state is of little significance” alone, see Veridian, 295 21 F. Supp. 3d at 1154; see also Restatement (Second) of Law on Conflict of Laws § 221(2) 22 cmt. d (“The fact . . . that one of the parties is domiciled . . . in a given state will usually ORDER - 16 1 carry little weight of itself.”). Instead, the importance of these locations “depends largely 2 upon the extent to which they are grouped with other contacts.” Restatement (Second) of 3 Law on Conflict of Laws § 221(2) cmt. d. Here, several contacts are grouped in Illinois: 4 Plaintiffs are domiciled there, the benefiting act (the sharing of facial images) was done 5 there, and Amazon presumably conducts business there related to the enrichment at issue. 6 See id. (“The state where these contacts are grouped is particularly likely to be the state 7 of the applicable law if . . . the benefiting act was done there.”); (Compl. ¶¶ 6-7, 58-63, 8 68-71.) Aside from Amazon’s headquarters, the allegations largely do not concern 9 Washington. (See Compl.) Accordingly, this factor favors application of Illinois law. 10 In sum, and in light of the guidance that the court is to evaluate these contacts with 11 respect to the particular issues presented, the court concludes that Illinois has the most 12 significant relationship to this occurrence. See Restatement (Second) of Law on Conflict 13 of Laws § 221. Of particular significance is the place of the benefiting act and the 14 grouping of Plaintiffs’ domicile, residence and Amazon’s business in that place: Illinois. 15 See id.; (Compl. ¶¶ 6-7, 54-57, 66-70, 74-77.) The remaining contacts are neutral or 16 carry little weight to the court’s analysis. 17 The conclusion that Illinois has the most significant relationship here is bolstered 18 by consideration of the underlying principles of § 6. First, the consideration of the two 19 states’ relevant policies leans towards Illinois. See Restatement (Second) of Law on 20 Conflict of Laws § 6(b)-(c). While Amazon is correct that Washington has its own 21 biometrics statute that differs from BIPA (see Def. Supp. Br. at 8-9), that difference in 22 itself encourages the application of Illinois law for Plaintiffs and a putative class who are ORDER - 17 1 all Illinois residents. Illinois made clear through BIPA that it has substantial interest in 2 protecting its residents’ biometric data, even if the harm is inflicted by an out-of-state 3 corporation. See In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 4 1169-70 (N.D. Cal. 2016). Indeed, Illinois’s recognition of both the role of major 5 national corporations as well as the unknown nature of the full ramifications of biometric 6 technology underscores Illinois’s great interest in protecting its citizenry against a 7 multitude of harms stemming from a privacy violation, including if a corporation unjustly 8 enriches itself off of Illinois residents’ biometric data. See 740 ILCS 14/5(b), (f). 9 Washington’s interest, on the other hand, is relatively insignificant in comparison, as 10 illustrated by the lack of Washington’s connection to the majority of substantive 11 allegations in Plaintiffs’ complaint. See McNamara v. Hallinan, No. 2:17-cv-02967- 12 GMN-BNW, 2019 WL 4752265, at *6 (D. Nev. Sept. 30, 2019) (finding state’s lack of 13 significance to substantive allegations suggests that its public policy interest is minimal). 14 Certainty, predictability and uniformity of result, as well as the ease in the 15 determination of the law to be applied, tip towards Illinois as well. See Restatement 16 (Second) of Law on Conflict of Laws § 6(f)-(g). In cases involving privacy, the 17 Restatement recognizes that both these values are furthered by choosing the state where 18 the invasion of privacy occurred, as that location “will usually be readily ascertainable.” 19 Cf. Restatement (Second) of Law on Conflicts of Law § 152 cmt. b (analyzing § 6 20 principles). That is especially true here, as this court and others have opined on the 21 difficulty of pinpointing where events occurred in BIPA cases. (See 3/15/21 Order at 22 6-7); see, e.g., Rivera v. Google Inc., 238 F. Supp. 3d 1088, 1101-02 (N.D. Ill. 2017). ORDER - 18 1 Moreover, uniformity concerns for the multitude of cases brought by Illinois residents 2 across the country again counsel application of Illinois law. See Vance v. IBM Corp., No. 3 20 C 577, 2020 WL 5530134, at *5 (N.D. Ill. Sept. 15, 2020) (“IBM”) (applying Illinois 4 law to IBM’s actions). 5 Amazon relies largely on protection of its justified expectations that Washington’s 6 biometrics law would apply. (Def. Supp. Br. at 8-9.) But in restitution cases, the 7 protection of justified expectations “plays a less important role in the choice-of-law 8 process with respect to some of the areas covered by the field of restitution” because “the 9 purpose of restitution is to do justice to the parties after an event whose occurrence one of 10 the parties, at least, will usually not have foreseen.” Restatement (Second) of Law on 11 Conflict of Laws § 221(1) cmt. b. Even if justified expectations carried greater 12 importance, Amazon’s expectation of relying on Washington law when it is a national 13 corporation and does extensive business nationwide is outweighed by Illinois residents’ 14 justified expectation that their state’s laws will protect their privacy interests, especially 15 as their relevant actions do not reach into Washington. (See Compl. ¶¶ 55-57, 66-68, 16 74-76.) Thus, this principle does not dictate the application of Washington law. 17 Assuming, arguendo, that the foregoing contacts were evenly balanced, the court 18 would still apply Illinois law under the second step of Washington’s choice-of-law 19 analysis. “If the contacts are evenly balanced, the second step of the analysis involves an 20 evaluation of the interests and public policies of the concerned states to determine which 21 state has the greater interest in determination of the particular issue.” Zenaida-Garcia v. 22 Recovery Sys. Tech., 115 P.3d 1017, 1020 (Wash. 2005). This second step “turns on the ORDER - 19 1 purpose of the law and the issues involved.” Veridian, 295 F. Supp. 3d at 1155. As 2 discussed above, Illinois has the paramount interest in applying its law here. Application 3 of its unjust enrichment law, which recognizes privacy harms, aligns with and strengthens 4 Illinois’s general regulatory scheme regarding privacy interests. See IBM, 2020 WL 5 5530134, at *5. Although applying Washington unjust enrichment law would not cause 6 Illinois to suffer “a complete negation of its biometric privacy protections,” the court 7 concludes that applying Washington law would cause Illinois to suffer greater 8 impairment of its policies than if the other state’s law is applied. See In re Facebook, 185 9 F. Supp. 3d at 1170. Having determined that Illinois law applies to Plaintiffs’ unjust enrichment claim, 10 11 the remainder of the analysis becomes straightforward. As the court previously 12 articulated, under Illinois law, “the assertion that plaintiffs are ‘exposed to a heightened 13 risk of privacy harm’ and ‘have been deprived of their control over their biometric data’ 14 sufficiently states an unjust enrichment claim.” (3/15/21 Order at 21-22 (quoting IBM, 15 2020 WL 5530134, at *5).) Because Plaintiffs have so pleaded (see Compl. ¶ 114), they 16 have sufficiently stated a claim for unjust enrichment under Illinois law.7 17 // 18 // 19 20 21 22 7 Amazon makes two additional arguments for dismissal: (1) that the unjust enrichment claim must be dismissed because the BIPA claims should be dismissed; and (2) that unjust enrichment is not available as Plaintiffs have a statutory remedy. (MTD at 22-23.) The court does not address the first argument because Plaintiffs’ BIPA claims survive. (See 3/15/21 Order.) As for the second argument, Plaintiffs may set forth an unjust enrichment claim alternatively, and thus dismissal is not warranted. See Fed. R. Civ. P. 8(e)(2); Quadion Corp. v Mache, 738 F. Supp. 270, 278 (N.D. Ill. 1990). ORDER - 20 1 In sum, the court determines that Illinois has the most significant relationship with 2 the occurrence here under both the contacts analysis laid out in Restatement § 221 and 3 the general principles listed in § 6. Moreover, even if the contacts were balanced, Illinois 4 has the greater interest in determining this particular issue. Applying Illinois law, 5 Plaintiffs have sufficiently pleaded their unjust enrichment claim, and Amazon’s 6 remaining arguments are unavailing. Thus, the court denies Amazon’s motion to dismiss 7 Plaintiffs’ unjust enrichment claim. 8 9 10 11 IV. CONCLUSION For the foregoing reasons, the court DENIES the remainder of Amazon’s motion to dismiss (Dkt. # 18). Dated this 14th day of April, 2021. 12 13 A 14 JAMES L. ROBART United States District Judge 15 16 17 18 19 20 21 22 ORDER - 21
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