Irell Secures Dismissal of Video Game Biometric Privacy Class Action

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January 2017

Irell & Manella LLP secured a dismissal with prejudice of a biometric privacy class action for New York-based Take-Two Interactive Software, a video game publisher and owner of the labels Rockstar Games and 2K.

In Fall 2015, players of Take-Two’s NBA 2K video game series filed a putative class action complaint in the Southern District of New York against the company alleging violations of the Illinois Biometric Information Privacy Act (BIPA), which regulates the collection and retention of Illinois residents’ biometric identifiers. The plaintiffs argued that Take-Two had failed to provide information required by BIPA when they used NBA 2K15’s “My Player” feature to scan their face and create an in-game avatar based on the scan. Under the statute, each violation carries a statutory award of $1,000 (or $5,000, if reckless or intentional). The damages exposure was in the hundreds of millions of dollars, if not much more.

Irell initially moved to dismiss, arguing that the plaintiffs lacked standing under both Article III of the U.S. Constitution and BIPA itself. After the motion had been fully briefed and argued, District Court Judge John G. Koeltl allowed the plaintiffs to amend their complaint and the parties to re-brief the motion in light of the Supreme Court’s summer 2016 decision in Spokeo, Inc. v. Robins. In the second round of briefing, Take-Two argued that Spokeo further supported its argument that the plaintiffs had not suffered a legally cognizable injury, as required by Article III and BIPA. In its January 27, 2017 opinion, the court agreed with Take-Two’s interpretation of both the Constitution and BIPA, dismissing the complaint, with prejudice.

The court’s decision is relevant to the numerous pending and forthcoming BIPA cases asserted against other technology and media companies, including photo-sharing and social media sites. As with most technologies, biometric technology is developing faster than the law. Illinois is one of the few states with statutes addressing it. Plaintiffs have invoked that state statute elsewhere around the country – it’s something of a “model act” for biometric privacy rights. 

The Irell team included Bobby Schwartz, Victor Jih, Nathaniel Lipanovich, Derek Flores and Molly Russell. Irell continues to represent Take-Two in the appeal, which is pending in the Second Circuit.

The case is Santana et al v. Take-Two Interactive Software, Inc. (1:15-cv-08211-JGK, Southern District of New York).