18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 671 LMRA, as resolution of the claims would require interpretation of the CBA. Defendant asserted that the CBA’s provisions, and particularly its management rights clause, must be interpreted to determine whether the Union agreed to allow Defendant to implement its attendance-tracking system without providing individual notices or securing individual consents from its employees. Id . at *10. Plaintiff asserted that her BIPA claim did not require the Court to interpret the provisions of the CBA because no provision mentioned biometric attendance-tracking practices. The Court reasoned that Plaintiff was a unionized worker who used her fingerprints to clock-in and clock-out of work, and she was "subject to a CBA, which included a management rights provision," and thus the rights “would require interpretation of the CBA, at the very least its management rights clause." Id. at *11. Accordingly, the Court concluded that since Plaintiff’s BIPA claim was completely preempted by § 301 of the LMRA, the complaint presented a federal question and therefore the motion for remand should be denied. Further, since Plaintiff’s complaint contained no allegations that would allow the Court to treat her BIPA claims as § 301 claims, or evidence that she had exhausted her administrative remedies, the Court determined that the complaint must be dismissed under Rule 12(b)(1). Accordingly, the Court denied Plaintiff’s motion to remand and dismissed the complaint. In Re Facebook Biometric Information Privacy Litigation, 2021 U.S. Dist. LEXIS 36801 (N.D. Cal. Feb. 26, 2021). Plaintiffs, a group of Facebook users, filed a class action alleging that Defendant collected and stored their biometric data without obtaining prior notice or consent as required by the Illinois Biometric Information Privacy Act (“BIPA”). Specifically, Plaintiffs’ case related to Defendant’s photo “tag suggestions” program, which automatically identified people’s faces in photos uploaded to Facebook. Id. at *6. According to Plaintiffs, the program’s alleged collection and retention of users’ facial templates violated the BIPA. Plaintiffs secured class certification, and after disputing several contentious legal issues, the parties eventually agreed to settle the case on a class-wide basis for $650 million. Plaintiffs then filed a motion for approval of the class action settlement, which the Court granted. Plaintiffs also filed a motion for an award of attorneys’ fees and costs, which the Court granted with certain modifications. As to the settlement itself, the Court noted that, in light of the large class size, “the parties rose to the occasion and proposed an array of innovative ways to reach class members.” Id . at *15. To that end, the Court pointed out that Plaintiffs provided class notice via email, Facebook notifications, newspaper publications, and a website dedicated to the class action settlement. The Court also applauded Plaintiffs’ efforts in working directly with Google to ensure that email notices avoided recipients’ spam folders, resulting in a 99.9% delivery success rate. Id. at *16. Moreover, the Court found that Plaintiffs’ counsel handled this complex action in a skilled and experienced manner, and that “the reaction of the class to this proposed settlement has been extraordinarily positive.” Id. at *29. In terms of the relief provided to the class, three objectors argued for the insufficiency of the settlement amount on the basis that the BIPA provides for damages between $1,000 and $5,000 per violation, whereas the $650 million settlement fund provided only $345 per claimant. The Court rejected the objectors’ arguments. It held that the objectors did not account for the factual disputes Plaintiffs would have faced had they proceeded to trial. To that end, the Court highlighted disputes regarding Article III standing, whether Defendant obtained user consent, and whether Defendant had a good faith belief that its actions were legal under the BIPA. Id. at *21-22. With respect to attorneys’ fees, Plaintiffs sought a fee award of $110 million, or approximately 16.9% of the total settlement fund. The Court acknowledged “the skill, dedication, and hard work” done by Plaintiffs’ counsel, but nevertheless found their requested fee to be excessive as “a matter of fairness and proportion.” Id. at *34. Plaintiffs contended that their requested fee fell below the 25% benchmark for common fund cases, but the Court reasoned that an action with a recovery as large as Plaintiffs’ recovery in this case must be considered outside of the typical fee benchmark. The Court instead awarded Plaintiffs 15% of the total settlement award and confirmed that this figure was reasonable after a lodestar cross check. Finally, Plaintiffs sought $7,500 incentive awards for each of the three named Plaintiffs, but the Court found $7,500 to be excessive in comparison to the amounts received by other class members and accordingly reduced the request to $5,000 per Plaintiff. In sum, the Court granted Plaintiffs’ motion for final approval of the class action settlement and awarded attorneys’ fees with slight modifications. Editor ’ s Note: The attorneys’ fee award of $97.5 million was one of the largest of 2021. In Re TikTok, Inc. Consumer Privacy Litigation, 2021 U.S. Dist. LEXIS 188949 (N.D. Ill. Sept. 30, 2021). Plaintiffs, a group of app users, filed a class action alleging that Defendants’ short-form video platform unlawfully collected their biometric and other personal data in violation of the Illinois Biometric Information Privacy Act