EAST ST. LOUIS — A Southern Illinois federal judge will allow Meta to ask a federal appeals panel if its Facebook Messenger program can be subject to litigation over a biometric privacy law.
Two families have been trying to sue Meta over its Messenger and Messenger Kids software, alleging violations of the Illinois Biometric Privacy Information Act (BIPA) in connection with the ability to superimpose so-called augmented reality filters and effects over users’ faces during video conversations. Meta has repeatedly insisted its Terms of Service agreement includes a choice of law provision that means users consent to their relationship with the company being governed under California law.
In an opinion filed May 15, U.S. District Judge Nancy Rosenstengel — having already denied a motion for summary judgment based on the same question — agreed to allow Meta to take its contentions on that point to the U.S. Seventh Circuit Court of Appeals.
Rosenstengel said she acknowledged that had she enforced the provision, the lawsuit likely would have ended. And although she found the provision unenforceable, on the grounds it contradicted fundamental Illinois policy “and Illinois has a materially greater interest” in the lawsuit than California, she will allow a Seventh Circuit panel to review her Feb. 20 summary judgment denial.
She reached that decision by weighing Meta’s request against four factors: Is there a legal question, would that answer control the outcome, can the matter be contested and will a resolution move the case along more expediently?
She said the issue must check each box.
While asserting she believes her February opinion is correct, Rosenstengel acknowledged she “encountered a ‘conflict’ in Seventh Circuit precedent regarding how to properly analyze the enforceability of a choice of law provision under Illinois’ choice of law rules.”
A 1996 Seventh Circuit opinion, Stromberg Metal Works v. Press Mechanical, “held that if the disputed issue is one that could be resolved by contract, then Illinois courts would ‘stop’ the analysis and enforce the agreed-to choice of law clause,” she wrote. “Meta insists that Stromberg is the ‘beginning and the end’ of the choice of law analysis because, assuming plaintiffs could have contractually waived their BIPA rights, it mandates the enforcement of the California choice of law provision.”
However, a 2004 ruling, Smurfit Newsprint v. Southeast Paper Manufacturing, “explained that governing law provisions are only ‘generally’ enforceable, subject to an ‘exception’ ” like the one Rosenstengel found in the Meta lawsuit regarding public policy and which state has a more significant interest.
“Assuming plaintiffs could have contractually waived their BIPA rights, Stromberg would prohibit the court from considering what Smurfit appears to mandate,” Rosenstengel wrote. “And for the reasons offered in the (Feb. 20) order, the court believed that Smurfit offered the analytical framework most closely aligned with that of the Illinois Supreme Court. Whether this decision was correct is one that the Seventh Circuit can decide quickly without extensive study of the record.”
She further said the court’s answer will control, either by barring the claims from advancing or because the response “would fundamentally alter the choice of law inquiry.” She then agreed the matter is contestable, reflecting on her own attempt to resolve conflict over which case to follow, and said it’s possible an appeal will speed up the litigation.
“If the Seventh Circuit accepts Meta’s petition for interlocutory review and reverses the (Feb. 20) order, then the resolution of this action would be expedited because the application of California’s substantive law would likely end the case,” Rosenstengel wrote. “If the Seventh Circuit declines to hear the petition, however, or if it affirms the (Feb. 20) order, then the proceedings would indeed be delayed because they will be on pause while the Seventh Circuit takes a look. So, the court cannot guarantee that an interlocutory appeal would speed up the litigation.”
Still, she said, the possibility the Seventh Circuit’s answer brings the lawsuit to a quick close is enough to answer the final criterion in Meta’s favor. As such, she certified a question: “Whether, under the choice of law rules of Illinois, courts must consider Illinois’ public policy and its interest in the case before enforcing a choice of law provision calling for the application of a foreign state’s law.”
Plaintiffs are represented in the case by attorney Ryan A. Keane and others with the firms of Keane Law, of St. Louis; and Goldenberg Heller & Antognoli, of Edwardsville.
Meta is represented in the case by attorneys from the firms of Gibson Dunn & Crutcher, of New York and Los Angeles; and Latham & Watkins, of Chicago.
