MDL Court: Clearview AI Biometric Privacy Plaintiffs May Not Add Retailer Defendants

Judge Sharon Johnson Coleman responded to the plaintiffs’ request to add AT&T, Kohl’s, Walmart, Best Buy, Albertson’s, and The Home Depot to a class of retailer defendants who used Clearview AI’s facial recognition software to identify unknown people. The opinion said the plaintiffs “switched gears” at too late a stage in the litigation considering the upcoming fact discovery deadline.

The case centers on Clearview’s purported privacy rights violations and its use of biometric information without individuals’ knowledge and consent in violation of the Illinois Biometric Information Privacy Act (BIPA). The plaintiffs also assert statutory and common law claims under Virginia, California, and New York law.  

Previously, the plaintiffs added Macy’s as a defendant and the court twice refused to dismiss allegations against it over its use of Clearview’s database.

Last month, the plaintiffs proposed adding the other retailers. In this week’s opinion the court noted that the deadline for joining new parties was Oct. 1, 2021. Clearview argued that adding the retailers would severely prejudice it considering the September 26 fact discovery deadline, which the court confirmed “is a hard deadline.”

The court reasoned that the plaintiffs did not explain how their BIPA claims against the new defendant retailers relate back to the date of the original pleadings as required by the Federal Rules of Civil Procedure or their New York Civil Rights Act claims which have a one-year statute of limitations.

“Nevertheless, plaintiffs now argue that if the Court does not grant them leave to add these defendants, they will file separate complaints against the additional named defendants causing multiple inefficiencies in this MDL and possible future tag-along cases,” the court added. Judge Coleman noted that while the plaintiffs may do so, their new suits may face timeliness issues.

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