Vigil v. Take-Two Interactive Software, Inc.

235 F.Supp.3d 499

Ricardo VIGIL, et al., Plaintiffs,

v.TAKE–TWO INTERACTIVE SOFTWARE, INC., Defendant.

15–cv–8211 (JGK)

United States District Court, S.D. New York.

Signed January 27, 2017

Filed January 30, 2017

David Phillip Milian, Frank Hedin, John Christopher Carey, Carey Rodriguez Greenberg O'keefe, LLP, Miami, FL, for Plaintiffs.

Jed I. Bergman, Aaron Harvey Marks, Henry Bowen Brownstein, Kasowitz, Benson, Torres & Friedman, LLP, New York, NY, Derek Flores, Molly Russell, Robert M. Schwartz, Victor Jih, Irell & Manella LLP, Los Angeles, CA, Nathaniel Lipanovich, Irell & Manella LLP, Newport Beach, CA, for Defendant.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The advent of new technologies in the field of biometrics—the field of science relating to the identification of humans based upon unique biological traits, such as fingerprints, DNA, and retinas—has produced new ways of conducting commercial transactions. In 2008, to promote, regulate, and safeguard the use of biometrics in financial transactions, Illinois enacted the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. (the "BIPA"), which sets forth disclosure, consent, and retention requirements for private entities that collect, store, and disseminate biometric data.

The defendant, Take–Two Interactive Software, Inc. ("Take–Two"), is one such private entity that collects biometric data for use in its video games, "NBA 2K15" and "NBA 2K16." The plaintiffs, Vanessa Vigil and Ricardo Vigil, have brought this putative class action pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). More specifically, Ricardo Vigil bought and played NBA 2K15, and his sister Vanessa Vigil played his copy of that video game. The plaintiffs used a feature in the video game to scan their respective faces to create personalized virtual basketball players, exclusively for in-game play. Although the plaintiffs do not contend that their face scans have been disseminated, or used for any purpose, other than for playing the video game, for which they gave consent, the plaintiffs contend that Take–Two failed to comply with various provisions of the BIPA.

On January 15, 2016, Take–Two moved pursuant to Rule 12(b)(1), and Rule 12(b)(6), of the Federal Rules of Civil Procedure to dismiss the plaintiffs' claims. Subsequently, the Supreme Court issued Spokeo, Inc. v. Robin s , –––U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), which clarified that for an injury-in-fact to be "concrete," it must be "real, and not abstract," and that a "bare procedural violation" under a federal statute, "divorced from any concrete harm," that "may result in no harm," would not "satisfy the injury-in-fact requirement." Id. at 1549 (internal quotation marks omitted). By Order dated July 1, 2016, this Court ruled that the plaintiffs should be allowed to replead in light of Spokeo , and denied without prejudice to renewal Take–Two's pending motion to dismiss. See Dkt. 42. The plaintiffs filed their Second Amended Complaint, and Take–Two renewed its motion.

The parties subsequently submitted supplemental letters concerning the impact of Strubel v. Comenity Bank , 842 F.3d 181 (2d Cir. 2016), which interpreted Spokeo .

For the following reasons, Take–Two's motion to dismiss the Second Amended Complaint is granted.¹

I.

When presented with a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and a motion to dismiss on other grounds, the first issue is whether the Court has the subject matter jurisdiction necessary to consider the merits of the action. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n , 896 F.2d 674, 678 (2d Cir. 1990).

In defending against a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Schs. , 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id. ; see also Graubart v. Jazz Images, Inc. , No. 02–CV–4645 (KMK), 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See Anglo–Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek , 600 F.3d 171, 175 (2d Cir. 2010) ; APWU v. Potter , 343 F.3d 619, 627 (2d Cir. 2003) ; Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986). In so doing, the Court is guided by the body of decisional law that has developed under Rule 56 of the Federal Rules of Civil Procedure. Kamen , 791 F.2d at 1011 ; see also Aguilar v. Immigration & Customs Enf't Div. of the U.S. Dep't of Homeland Sec. , 811 F.Supp.2d 803, 821–22 (S.D.N.Y. 2011).

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden , 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc. , 282 F.3d 147, 153 (2d Cir. 2002).

II.

Illinois enacted the BIPA in 2008. The legislative findings accompanying the BIPA explain that the BIPA was passed, in part, because the Illinois legislature anticipated that commercial businesses would increasingly use biometric data, such as fingerprints, to facilitate financial transactions. 740 Ill. Comp. Stat. 14/5(a–b). As the Illinois legislature observed, biometric data are by definition unique, and thus—unlike a credit card number—cannot realistically be changed if they are subject to identity theft. See 740 Ill. Comp. Stat. 14/5(c). The Illinois legislature was concerned that the failure of businesses to implement reasonable safeguards for such data would deter Illinois citizens from "partaking in biometric identifier-facilitated transactions" in the first place, and would thus discourage the proliferation of such transactions as a form of engaging in commerce. 740 Ill. Comp. Stat. 14/5(e). The BIPA represents the Illinois legislature's judgment that the collection and storage of biometrics to facilitate financial transactions is not in-of-itself undesirable or impermissible; instead, the purpose of the BIPA is to ensure that, when an individual engages in a biometric-facilitated transaction, the private entity protects the individual's biometric data, and does not use that data for an improper purpose, especially a purpose not contemplated by the underlying transaction. See 740 Ill. Comp. Stat. 14/5(a–g).

Under the BIPA, a "biometric identifier" is "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry," while "biometric information" is information based on "biometric identifiers." 740 Ill. Comp. Stat. 14/10. Among other things, the BIPA includes a number of provisions to regulate the collection, dissemination, and storage of biometric identifiers and biometric information. First, Section 15(a) provides that:

A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first.

See 740 Ill. Comp. Stat. 14/15(a). Second, the BIPA requires private entities to "store, transmit, and protect from disclosure all biometric identifiers and biometric information using the reasonable standard of care within the private entity's industry," and to treat such identifiers and information as sensitive and confidential. 740 Ill. Comp. Stat. 14/15(e).

Third, Section 15(b) provides that a private entity that collects biometric identifiers or biometric information must (1) inform the subject in writing that a biometric identifier, or biometric information, is being collected; (2) inform the subject in writing of the purpose and length of the collection and storage; and (3) receive a written release from the subject. 740 Ill. Comp. Stat. 14/15(b). Fourth, Section 15(c) prohibits private entities from selling biometric identifiers...