Court Clarifies But Declines to Reconsider Dismissal Order in Clearview AI MDL

On Monday, the Northern District of Illinois issued an order clarifying its previous order partly dismissing the biometric privacy case. The defendants argued that the court failed to consider arguments about whether certain defendants should be dismissed from the case and whether the plaintiffs lacked standing to pursue their claims, however, the court turned down both contentions.

The Illinois Biometric Information Privacy Act (BIPA) class action alleges that the artificial intelligence and facial recognition technology company combed the internet for billions of photos of individuals to create a biometric database. Using the database, paying customers like newly added defendants Best Buy, Macy’s, and Albertson’s, could upload a photo to the database to determine the identity of a previously unknown individual without their consent.

In February, the court permitted some claims to move forward. It also kept defendant Thomas Mulcaire and Rocky Mountain Data Analytics LLC, Clearview’s general counsel and subsidiary, in the case.

The defendants argued that Mulcaire and Rocky Mountain should have been excused from the case, yet the court failed to consider certain personal jurisdiction arguments. They also questioned the ruling as to personal jurisdiction and standing, arguing that the court misinterpreted the holding of Ramirez v. TransUnion

In this week’s opinion, Judge Sharon Johnson Coleman reiterated that the personal jurisdiction arguments were raised too late and did not afford the plaintiffs an opportunity to respond or were not fully developed. As to the Transunion ruling, the court declined to reconsider its prior decision and explained why the Supreme Court case did not mandate a different finding.

Judge Coleman said that the Clearview defendants were wrong to analogize to a 2021 Seventh Circuit decision, “because in that matter the plaintiffs purposely brought bare BIPA claims with no allegations of injuries to avoid federal court jurisdiction.” Furthermore, the court continued, “defendants’ reliance on TransUnion for the proposition that a victim of a privacy harm can only suffer an injury-in-fact for Article III standing if the victim’s information is disseminated to a third-party is also unavailing.”

The court explained that unlike the law underlying the Transunion action which the Supreme Court analogized to defamation, the Seventh Circuit has said that BIPA violations are akin to a different kind of claim, common law privacy torts.

Lastly, Judge Coleman reminded the parties of the purpose of motions for reconsideration and said that any further one must first secure the court’s approval.

The plaintiffs are represented by interim lead counsel Loevy & Loevy, as well as  Bursor & Fisher P.A., Hedin Hall LLP, Neighborhood Legal LLC, Community Lawyers LLC, and Webster Book LLP.

Clearview is represented by Jenner & Block LLP and Cahill Gordon & Reindel LLP.