Basic Information

1. Why did I get this Notice?

A Court authorized this Notice because you have the right to know about the proposed Settlement of this class action lawsuit and about all of your rights and options before the Court decides whether to grant final approval of the Settlement. You may be eligible to receive a payment as part of the Settlement. This Notice explains the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.

Judge Raymond W. Mitchell of the Circuit Court of Cook County, Illinois is overseeing this class action. The case is known as Miracle-Pond, et al. v. Shutterfly, Inc., Case No. 2019-CH-07050 (Cir. Ct. Cook Cty.) (the “Action”). The people who filed this lawsuit are called the “Plaintiffs” and the company they sued, Shutterfly, Inc., is called the “Defendant.”

2. What is this lawsuit about?

The Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”), prohibits private companies from obtaining, collecting, storing, or using a person’s biometric identifiers and/or biometric information (collectively, “biometrics”), such as a scan of face geometry, without first providing such individual with certain written disclosures and obtaining written consent. BIPA also requires that private companies that possess biometrics publish a publicly available retention schedule.

The Plaintiffs claim that Shutterfly violated BIPA by obtaining, collecting and storing Illinois residents’ biometrics through the process of using facial recognition software to group similar faces together in photographs that have been uploaded by the same Shutterfly user, a feature called Face Grouping, without adequate prior notice and consent. 

Shutterfly denies any wrongdoing and denies all other claims made in the Action. No court or other entity has made any judgment or other determination of any wrongdoing or that Shutterfly violated the law. By entering into the Settlement, Shutterfly is not admitting that it did anything wrong.

3. Why is this a class action?

In a class action, one or more people called the “Class Representatives” sue on behalf of all people who have similar claims. Together all of these people are called a Class or Class Members. One court resolves the issues for all Class Members, except for those Class Members who exclude themselves from the Class.

The Class Representatives in this case are the Plaintiffs: Vernita Miracle-Pond and Samantha Paraf.

4. Why is there a Settlement?

The Plaintiffs and Shutterfly do not agree about the claims made in this Action. The Action has not gone to trial and the Court has not decided in favor of the Plaintiffs or Shutterfly. Instead, the Plaintiffs and Shutterfly have agreed to settle the Action. That way both sides avoid the cost and risks of trial, and Class Members will get Settlement benefits now rather than years from now, if at all. The Plaintiffs and the attorneys for the Class (“Class Counsel”) believe the Settlement is best for all Class Members because of the risks and uncertainty associated with continued litigation and the nature of the defenses raised by Shutterfly.

Who Is Included In The Settlement?

5. How do I know if I am part of the Settlement?

You are a Class Member, and you are affected by this Settlement, if you are an Illinois resident and appear in a photograph maintained on Shutterfly at any time between June 11, 2014 and the date of Final Approval (defined below). If you received this notice by e-mail or U.S. mail, you may fit this description, and you may submit a Claim Form. If you did not receive this notice by e-mail or U.S. mail, but believe you fit this description, you may also submit a Claim Form.

Note: If you are a Shutterfly account holder, you should have received an email to the email address associated with your Shutterfly account.

6. Are there exceptions to being included in the Settlement?

Yes, the Settlement does not include: (1) any Judge, Magistrate, or mediator presiding over this Action and members of their families, (2) Defendant, Defendant’s subsidiaries, parent companies, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest, (3) Class Counsel, and (4) the legal representatives, successors or assigns of any such excluded persons.

7. What if I am still not sure whether I am part of the Settlement?

If you are still not sure whether you are a Class Member, you may email the Settlement Administrator at info@ShutterflyBIPASettlement.com or call the Settlement Administrator’s toll-free number at 1-833-760-0656.

The Settlement Benefits

8. What does the Settlement provide?

Shutterfly has agreed to create a Settlement Fund totaling $6,750,000, if the Settlement is approved by the Court. The following payments will come out of this fund: Settlement Payments as a result of Approved Claims made by Class Members, Settlement Administration Expenses, any Court-approved Service Awards to the Class Representatives, and any Court-approved attorneys’ fees and expenses to Class Counsel.

In addition, Shutterfly has agreed to provide a notice to Class Members whom Shutterfly can reasonably and reliably identify as Shutterfly account holders (“Class Member Users”). The notice will disclose the data collected for Face Grouping, the purpose(s) of collecting the data, and the length of term of the collection. The notice will provide a mechanism for Class Member Users to choose whether to keep the Face Grouping feature “on” or set the feature to “off” for their account.

In addition, Shutterfly will publish a supplemental retention schedule and guidelines for permanently destroying Face Grouping data created for Illinois Shutterfly users within three (3) years of their last interaction with Shutterfly.

9. How much will my payment be?

If you are a member of the Class you may submit a Claim Form to receive a portion of the Net Settlement Fund. The Net Settlement Fund is the portion of the Settlement Fund that remains after Settlement Administration Expenses, any Court-approved Service Awards to the Class Representatives, and any Court-approved attorneys’ fees and expenses to Class Counsel are deducted. The amount of your payment will depend on how many Class Members file valid claims and the amount of fees, costs, expenses, and awards deducted from the fund. Each Class Member who submits a valid claim will receive a proportionate share of the Net Settlement Fund.  For example, in the event the Net Settlement Fund equals $4 Million, and 30,000 Class Members submit a claim, the amount of the Claim per person will be approximately $134. The Settlement Website will periodically be updated to provide the estimated payment amount based on the number of participating Class Members.

10. How can I get a payment?

If you are a Class Member and you want to receive a payment, you must complete and submit a valid Claim Form no later than September 14, 2021. Claim Forms can be found and submitted online or through the mail. To submit a paper copy of the Claim Form, you may click HERE to find a printable pdf; you may email the Settlement Administrator at info@ShutterflyBIPASettlement.com to request one be mailed to you; or you may call the Settlement Administrator’s toll-free number at 1-833-760-0656.

We encourage you to submit your claim electronically. Not only is submitting online easier and more secure, but it is completely free and takes only minutes. You will also be able to select the option of receiving your payment by check or electronically through Zelle, PayPal, Venmo, Digital MaserCard, and direct deposit.

11. When will I get my payment?

It may take more than one year for the Court to decide whether to approve the Settlement and for the Settlement to become final. Please be patient and check the Settlement website for updates. No benefits will be provided until the Court has approved the settlement and any appeals have been resolved. The “Effective Date,” as explained more fully and defined in the Settlement Agreement, will then have been reached.

Based on your selection on the Claim Form, you should receive a payment from the Settlement Administrator within 45 days after the Settlement has been finally approved and/or after any appeal process is complete, whichever occurs later. The hearing to consider final approval of the Settlement is scheduled for September 8, 2021. Even if the Court approves the Settlement there may be appeals. It is always uncertain whether and when appeals can be resolved, and resolving them can take time, perhaps more than a year.

All checks will expire and become void 90 days after they are issued. If appropriate, funds remaining from the initial round of uncashed checks or returned electronic payments may be used for a second distribution to participating Class Members and/or may be donated to one or more charity(ies) agreed on by the Parties and approved by the Court.

The Settlement Website will be updated to inform Class Members of the progress of the Settlement. Please be patient.

12. What happens if my contact information changes after I submit a claim?

If you change your mailing address or email address after you submit a Claim Form, it is your responsibility to inform the Settlement Administrator of your updated information. You may notify the Settlement Administrator of any changes by completing the online form, by calling 1-833-760-0656, emailing info@ShutterflyBIPASettlement.com, or by writing to:

Miracle-Pond, et al. v. Shutterfly, Inc.,
Case No. 2019-CH-07050 (Cir. Ct. Cook Cty.)
P.O. Box 3395
Baton Rouge, LA 70821

The deadline to submit a Claim Form is September 14, 2021.

Remaining In The Settlement

13. What am I giving up to stay in the Class?

Unless you exclude yourself, you are choosing to remain in the Class. If the Settlement is approved and becomes final, all of the Court’s orders will apply to you and legally bind you. You will not be able to sue, continue to sue, or be part of any other lawsuit or Arbitration proceeding against Shutterfly and any of the Released Parties about the claims made in this case and released by the Settlement.

The specific rights you are giving up are called Released Claims (see next question).

14. What are the Released Claims?

If you are a Class Member, and you do not exclude yourself from the Settlement, and the Settlement becomes final, you will be releasing Shutterfly and any of the Released Parties from any liability regarding any and all claims associated with this case, as explained in the Settlement Agreement. You will give up your right to be part of any other lawsuit against Shutterfly and any of the Released Parties regarding the claims resolved by this Settlement and released by the Settlement Agreement. The specific claims you will release are described in sections 1.25-1.27 and 11.1-11.4 of the Settlement Agreement. A copy of sections1.25-1.27 and 11.1-11.4 of the Settlement Agreement, which sets out the claims released by you, if you are a Class Member, is attached to the Class Notice as Exhibit A.

The Lawyers Representing You

15. Do I have a lawyer in this case?

Yes, the Court has appointed the law firms of Ahdoot & Wolfson, PC, Carey Rodriguez Milian, LLP, and Carlson Lynch, LLP as Class Counsel to represent you and the Class for the purposes of this Settlement. You may hire your own lawyer at your own cost and expense if you want someone other than Class Counsel to represent you in this Action.

16. How will Class Counsel be paid?

Pursuant to the Settlement Agreement, Class Counsel will file a motion asking the Court to award them attorneys’ fees not to exceed 35% of the Settlement Fund (or $2,362,500.00), plus reasonable costs and expenses incurred by Class Counsel. They will also ask the Court to approve $5,000 Service Awards to each of the Class Representatives for participating in this Action and for their efforts in achieving the Settlement. The Court may award less than these amounts.

Class Counsel’s application for attorneys’ fees, costs, and expenses, and application for Service Awards will be made available on the Settlement Website fourteen (14) days before the deadline for you to comment or object to the Settlement.

Excluding Yourself From The Settlement

If you are a Class Member and want to keep any right you may have to sue or continue to sue Shutterfly on your own at your own expense based on the claims raised in this Action or released by the Released Claims, then you must take steps to get out of the Settlement. This is called excluding yourself from – or “opting out” of – the Settlement.

17. How do I get out of the Settlement?

To exclude yourself from the Settlement, you must submit a request in writing to exclude yourself from the Settlement. The request must be in writing and identify the case name Miracle-Pond, et al. v. Shutterfly, Inc., Case No. 2019-CH-07050 (Cir. Ct. Cook Cty.); state your name and address; be physically hand- signed by you; and must also contain a statement to the effect that “I hereby request to be excluded from the proposed Settlement Class in Miracle-Pond, et al. v. Shutterfly, Inc., Case No. 2019-CH-07050 (Cir. Ct. Cook Cty.).” You must either mail your request to be excluded from the Settlement Class to the post office box address below, or submit your request to be excluded through the link on the Settlement Website, or attach your exclusion request to an email to the following email address established for the purpose of accepting exclusions: Exclusions@ShutterflyBIPASettlement.com. To be valid, your exclusion must be received by the Settlement Administrator electronically, or if mailed to the address below postmarked, no later than August 16, 2021:

Miracle-Pond, et al. v. Shutterfly, Inc.,
Case No. 2019-CH-07050 (Cir. Ct. Cook Cty.)
P.O. Box 3395
Baton Rouge, LA 70821

You cannot exclude yourself by telephone. And you cannot exclude any other Class Member.

18. If I exclude myself, can I still get any of the Settlement benefits?

No. If you exclude yourself, you are telling the Court that you do not want to be part of the Settlement. You can only receive any of the Settlement benefits described in this notice if you stay in the Settlement.

19. If I do not exclude myself, can I sue Shutterfly for the same thing later?

No. Unless you exclude yourself, you give up any right to sue Shutterfly or any of the Released Parties for the claims made in this case and released by the Settlement.  You must exclude yourself from this Action to start or continue with your own lawsuit or be part of any other lawsuit against Shutterfly or any of the Released Parties. If you have a pending lawsuit, speak to your lawyer in that case immediately.

Object To Or Comment On The Settlement

20. How do I tell the Court that I do not like the Settlement?

If you are a Class Member, you can tell the Court that you do not agree with all or any part of the Settlement. You can give reasons why you think the Court should not approve the Settlement. To object, on or before August 16, 2021, you must mail or hand-deliver your written objection to the Settlement to Class Counsel and Counsel for Shutterfly at the addresses set forth below, and file, mail or hand-deliver your objection simultaneously to the Court, at the address below.

Your objection must (i) include your full name, current  address, email address and telephone number, as well as the name, email address and telephone number of all attorneys representing you (if any); (ii) contain your original signature and the signature of your attorneys, if any; (iii) state whether you object to the Settlement, in whole or in part; (iv) set forth a statement of the legal and factual basis for your objection; (v) include a list of all cases, by name and case number, in which you and/or your counsel has filed or in any way participated—financially or otherwise—in objecting to a class action settlement in the previous five (5) years; and (vi) provide copies of any documents that you wish to submit in support of your position.

Clerk of the Circuit Court of Cook County – Chancery Division

Class Counsel Counsel for Shutterfly

Richard J. Daley Center, 8th Floor
50 West Washington Street
Chicago, Illinois 60602

 

c/o Shutterfly BIPA Settlement
P.O. Box 3395
Baton Rouge, LA 70821
info@ShutterflyBIPASettlement.com
Mayer Brown LLP
c/o Mathew D. Provance
71 S. Wacker Drive
Chicago, Illinois 60602
21. What is the difference between objecting and requesting exclusion?

Objecting is simply telling the Court you do not like something about the Settlement. You can object only if you stay in the Class (that is, do not exclude yourself). Requesting exclusion is telling the Court you do not want to be part of the Class or the Settlement. If you exclude yourself, you cannot object to the Settlement because it no longer affects you.

The Final Approval Hearing

22. When and where will the Court decide whether to approve the Settlement?

The Court will hold a Final Approval Hearing on September 8, 2021 at 11:00 a.m. before the Honorable Raymond W. Mitchell in Room 2601 at the Richard J. Daley Center, 50 West Washington Street, Chicago, Illinois 60602. This hearing may be held remotely at the Court’s discretion. Check the settlement website for updates.

At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate and decide whether to approve: the Settlement; Class Counsel’s application for attorneys’ fees, costs and expenses; and the Service Awards to the Class Representatives. If there are objections, the Court will consider them. The Court will also listen to people who have asked to speak at the hearing.

Note: The date and time of the Final Approval Hearing are subject to change by Court Order. Any changes will be posted at the Settlement Website.

23. Do I have to come to the Final Approval Hearing?

No. Class Counsel will answer any questions the Court may have. However, you are welcome to attend at your own expense. If you send an objection, you do not have to come to Court to talk about it. As long as you mail your written objection on time the Court will consider it.

24. May I speak at the Final Approval Hearing?

Yes. If you wish to, you may attend and speak at the Final Approval Hearing, whether or not you intend to object to the Settlement. If you, or your attorney, wish to appear and speak at the Final Approval Hearing, you must do the following prior to August 16, 2021 (1) mail or hand-deliver to the Court a “Notice of Intention to Appear”  in the Action to the address set forth in Question 20, above; (2) provide copies of any exhibits or documents that you intend to present or use at the hearing; (3) provide a list of all witnesses that you intend to call to give evidence at the hearing; (4) take all other actions or make additional submissions as may be ordered by the Court; and (5) mail or hand-deliver any notice and any exhibits, lists or documents, to Class Counsel and Counsel for Shutterfly at the addresses set forth in Question 20, above.

Your Notice of Intention to Appear must be received at the addresses set forth in Question 20, no later than fourteen (14) days prior to the Final Approval Hearing.  Please note that if you do not file a Notice of Intention, you may still appear at the Final Approval Hearing and request to address the Court.

If You Do Nothing

25. What happens if I do nothing at all?

If you are a Class Member and do nothing, you will not get any benefits from this Settlement. But, unless you exclude yourself, you will not be able to sue, or continue to sue, Shutterfly – as part of any other lawsuit – about the same legal claims that are being resolved by this Settlement.

Getting More Information

26. How do I get more information?

This Notice summarizes the proposed Settlement. Complete details are provided in the Settlement Agreement. The Settlement Agreement and other related documents are available by emailing info@ShutterflyBIPASettlement.com, by calling 1-833-760-0656, or by writing to Miracle-Pond, et al. v. Shutterfly, Inc., Case No. 2019-CH-07050, P.O. Box 3395, Baton Rouge, LA 70821. In the event of any conflict between this Notice and the Settlement Agreement, the Settlement Agreement shall be binding. Publicly filed documents can also be obtained by visiting the office of the Clerk of the Circuit Court of Cook County – Chancery Division, Richard J. Daley Center, 50 West Washington Street, Chicago, Illinois 60602, between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding Court holidays.

If you have questions you may contact Class Counsel at:

Ahdoot & Wolfson, PC
c/o Shutterfly BIPA Settlement
P.O. Box 3395
Baton Rouge, LA 70821
info@ShutterflyBIPASettlement.com

Carey Rodriguez Milian, LLP
c/o Shutterfly BIPA Settlement
P.O. Box 3395
Baton Rouge, LA 70821
info@ShutterflyBIPASettlement.com
Carlson Lynch, LLP
c/o Shutterfly BIPA Settlement
P.O. Box 3395
Baton Rouge, LA 70821
info@ShutterflyBIPASettlement.com

 

PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE.

THE COURT CANNOT ANSWER ANY QUESTIONS.