SAN FRANCISCO (CN) — A federal judge on Tuesday scolded a law firm for using “deceptive and misleading” tactics to get Illinois Facebook users to opt out of a historic $650 million settlement over the social network’s alleged misuse of facial recognition technology.
New York-based law firm Levi & Korsinsky started posting advertisements in Illinois residents’ Facebook feeds last week, according to Gregory Nespole, a partner at the firm who defended the ad campaign during a virtual court hearing Tuesday.
On Friday, attorneys for a class of Illinois Facebook users asked for a temporary restraining order to stop the firm from posting “deceptive” ads. The Facebook ads stated that Illinois residents “may be entitled to hundreds of thousands in compensation” and invited users to “sign up for a claim in 2 minutes.”
The ads were posted before all notices of the settlement and official claims process were rolled out in the form of emails, print and online ads, Facebook news feed posts and Facebook “jewel” alerts. While some emails were sent to class members starting Friday, the remaining settlement notices are scheduled to go out by Wednesday, the deadline imposed by the court.
During a video-conference hearing Tuesday, co-lead class counsel Jay Edelson said the ads confused class members into thinking Levi & Krosinsky’s opt-out solicitations were part of the court-approved settlement process.
“It’s kind of the worst thing that can happen is we have class members who are not sure what the legitimate process is,” Edelson complained.
Levi & Korsinsky pulled the ads on Friday after a motion for a court order to make the firm take down the ads was filed.
Nespole told U.S. District Judge James Donato that his firm did not intend to deceive class members, but he acknowledged his firm could have used “more artful language” instead of using the term “claim by itself” in the ads.
Still, Nespole insisted the ad was not misleading or deceptive because “an opt-out is also a claim.”
U.S. District Judge James Donato disagreed.
“It looks like it was artful in that it was meant to mislead and deceive people,” Donato said.
“You made it a hook,” Donato continued. “Get that hook into someone’s gullet by a trick or fraud, by being misleading or confusing, that’s just wrong.”
The judge ordered Nespole’s firm to work with attorneys for Facebook and the plaintiff class to draft an email notice to about 3,000 people who saw the ads and signed up to be represented by Levi & Korsinsky as opt-out plaintiffs.
Donato said the email notice should explain to class members that “this is not how you file a claim. If you elect to opt out, you will not receive a check from the settlement.”
If the lawyers cannot agree on language for the email notice, Donato said he will get involved and settle the dispute.
Nespole assured the court that his firm will not make further attempts to communicate with the 3,000 opt-out plaintiffs until the official settlement notice process is complete.
The $650 settlement resolves claims that Facebook mapped Illinois users’ faces for its “Photo Tag Suggest” function starting in 2011 without consent and without telling users how long their data would be stored in violation of the Illinois Biometric Information Privacy Act of 2008.
In July, Facebook agreed to boost the settlement from $550 million to $650 million after Donato suggested in June that he found the prior deal inadequate.
The Illinois privacy law carries civil penalties of $1,000 for each negligent violation and $5,000 for each knowing violation. With a class of millions of Illinois Facebook users, damages could have reached up to $35 billion.
In its now-removed Facebook ad, Nespole’s law firm told users that “Illinois residents could be entitled to up to $5,000 each time a company performs facial recognition on your photograph without written consent.”
Each class member will receive about $200 to $400 under the terms of the $650 million Facebook settlement.
Class members can now file claims through the official settlement website.
The deadline to file claims or opt out is Nov. 23. A final settlement approval hearing is scheduled for Jan. 7, 2021.
This settlement will not end all of Facebook’s legal troubles over alleged privacy violations. In August, a class action filed in San Mateo County Superior Court claimed the company harvested 100 million Instagram users’ biometric facial data without their consent. Last week, another class action filed in San Francisco federal court claimed Facebook has accessed Instagram users’ smartphone cameras without their consent while the app is open in order to, among other things, monitor real-time reactions to advertisements.