Judge Peterson noted that Amazon could not refute the amended complaint’s allegations by referencing its customer agreements. The court must assume the complaint’s factual allegations are true at this stage and draw reasonable inferences in the plaintiff’s favor.
Mayhall’s complaint alleges that AWS collected and stored players’ biometric data, used to generate avatars for NBA 2K players, without proper disclosure or consent. The amended complaint further asserts that Amazon actively obtained and disseminated this biometric data without informing users, retaining the data even after gameplay ended.
The judge also recommended rejecting Amazon’s claim to immunity under the Communications Decency Act, clarifying that the complaint addresses Amazon’s failure to comply with BIPA, which imposes duties to disclose and obtain consent before collecting or using biometric information.
Mayhall is represented by Jason T. Dennett and Cecily C. Jordan of Tousley Brain Stephens PLLC, Kevin P. Green of Goldenberg Heller & Antognoli PC, and Christian G. Montroy of Montroy Law Offices LLC. Amazon and AWS are represented by Brian D. Buckley of Fenwick & West LLP and Elizabeth B. Herrington of Morgan Lewis & Bockius LLP.
