Clearview AI Files Memorandum Opposing Reconsideration

Clearview AI, its founder Hoan Ton-That, and Richard Schwartz filed a memorandum on Friday in the Northern District of Illinois before Judge Sharon Johnson Coleman and Magistrate Judge Maria Valdez in opposition to the plaintiff’s motion to reconsider a stay order. The defendants stated that the court’s decision to grant the stay was reasonable and consistent with other cases.

Clearview AI was originally sued by David Mutnick in January, who claimed that the company violated his and similarly situated individuals’ privacy through their facial recognition database. They were accused of collecting images online without obtaining the subject’s permission to use their image in the database.

The court granted Clearview’s motion to stay on August 21, waiting for a decision from the Judicial Panel on the Multidistrict Litigation (JPML) regarding the defendants’ motion to transfer the consolidated class-action to the Southern District of New York. Afterward, the plaintiff filed a motion to reconsider, which alleged that the defendants’ motion to stay “did not include two ‘critical facts.’” However, the defendants have challenged this assertion, stating that the plaintiff “mischaracterizes both ‘facts.’”

The plaintiffs argued that the motion to stay “omits that Defendants’ transfer motion before the JPML is not included on the Panel’s docket for its upcoming September 24, 2020 hearing session” and that the “JPML will not address the motion until December 3, 2020 – at the earliest.” The defendants claimed that the plaintiff’s “prediction … is speculative and assumes the Panel will elect to hold oral argument,” however, the panel could address the motion without an oral argument with adequate facts and presented legal arguments. Moreover, an oral argument could be added before the December hearing.

Clearview also pointed out that the plaintiff could submit a statement to the Panel sharing these concerns, but the plaintiff has not done so. The defendants added that “a stay of a few months in order to avoid potentially inconsistent rulings as well as a waste of party and judicial resources is entirely appropriate in the context of a complex class action that may last for years.”

The plaintiffs claimed that the defendants’ motion “omits that they have not sought a parallel stay of the New York Litigation and that they do not intend to do so.” The defendants stated that this is false and they intend to ask Chief Judge McMahon to continue the stay at an upcoming teleconference, as the parallel suits in New York have already been held for three months.

Clearview argued that the plaintiffs in this litigation are “not subject to any alleged ongoing harm.” They claimed that the plaintiff “has not and cannot credibly allege that his image is even included in Clearview’s database.” Furthermore, Clearview stated that even if the plaintiff’s image is in the database he “suffers no legally cognizable ongoing harm from this.”

Additionally, Clearview argued that it is exempt from the Illinois Biometric Information Privacy Act (BIPA) because it is working with law enforcement and other government agencies. Again, Clearview claimed this illustrates that the plaintiff has not been harmed like in Terkel. While the plaintiffs critiqued the defendants for not pursuing a stay in the Thornley case, where a motion to remand is fully briefed, Clearview noted that in the suit the plaintiff did not seek a stay because it would raise an Article III standing issue. Clearview claimed that it did not think the law supported a stay in that specific suit.

Clearview also stated that a stay on the preliminary injunction would “preserve judicial resources.” Furthermore, Clearview claimed that the parties’ disagreement about BIPA highlighted the complexity of the suit and why it would benefit from a stay. As a result, Clearview stated that the court should deny the plaintiff’s motion to reconsider.

This is the latest activity in litigation against Clearview AI. Previously, Clearview’s motion to dismiss and motion to transfer in this case were denied.

Clearview is represented by Jenner & Block LLP. The plaintiff is represented by Loevy & Loevy.