N.D. Ill. Court Forecloses Macy’s Interlocutory Appeal in Clearview AI MDL

Last Friday, the judge overseeing the multidistrict litigation proceeding against Clearview AI, and a multitude of defendants, including “Clearview Client Class” member Macy’s Inc. denied the retailer’s request to certify questions for immediate appeal. Macy’s failed to make the requisite showing as to each of its three proposed questions, Judge Sharon Johnson Coleman opined two months after largely denying Macy’s motion to dismiss.

The plaintiffs alleged that Macy’s purchased access to Clearview’s biometric database to recognize people whose images appeared in surveillance camera footage from Macy’s retail stores. The defendant is allegedly one of approximately 200 in the Clearview Client Class, defined as non-governmental entities who purchased or used Clearview’s database to run biometric searches at a time when one or more of the named plaintiffs’ data was stored by Clearview.

Their first amended complaint brought claims under the Illinois Biometric Information Privacy Act (BIPA) for obtaining their metrics without notice or consent, from profiting from those biometrics, and under California and New York statutory and common law.

Macy’s contested the court’s January dismissal ruling by asking it to reconsider three key questions. The plaintiffs opposed and, last week, Judge Coleman refused to certify the questions for appeal.

At the outset of her discussion, Judge Coleman opined that “requests for interlocutory appeal are for exceptional circumstances.” She addressed each of the three questions in turn, beginning with 

 Macy’s request for reconsideration of the court’s standing determination on grounds that a Supreme Court case changed the goal posts. The court declined this arguing, finding that the TransUnion holding “does not change the Seventh Circuit’s BIPA precedent.”

Next, the opinion disposed of Macy’s second question, again ruling that it did not involve a question of law as required by the interlocutory appeal statute. Because the court did not construe the meaning of “profit” as contained in one of the plaintiffs’ BIPA causes of action, and only addressed “whether plaintiffs had plausibly alleged Macy’s profited from plaintiffs’ biometric information” Macy’s raised an illegible question, Judge Coleman said.

Finally, Macy’s requested that the court certify a question in relation to plaintiffs’ California and New York claims, asking “whether California and New York statutes and common law protect the same set of rights secured by BIPA.” The opinion said that the court never addressed or concluded that those claims protect the same set of rights afforded by BIPA.

“As such, Macy’s contention that plaintiffs’ New York and California claims are really BIPA claims incognito is not a question of law for interlocutory appeal,” the court concluded.

The plaintiffs are represented by Loevy & Loevy, Bursor & Fisher P.A., Hedin Hall LLP, Neighborhood Legal LLC, Community Lawyers LLC, and Webster Book LLP. Macy’s is represented by Taft Stettinius & Hollister LLP.