A New York federal judge has refused to let a team of Chicago attorneys take the reins on a series of class action lawsuits filed against facial recognition data dealer Clearview AI, as the judge says the attempt is merely to allow those lawyers to control any resulting payday the lawsuits may generate.
On May 29, U.S. District Judge Colleen McMahon, who serves as chief judge for the Southern District of New York, in New York City, rejected a motion by attorneys for plaintiff David Mutnick to intervene in seven other class actions against Clearview now pending in New York federal court.
Mutnick is represented in the action by attorneys with the firm of Loevy & Loevy, of Chicago.
“The interest that Mutnick is really seeking to protect is an interest in controlling the fate of, and the fees to be earned in, several class actions that would, were they all in the same court, be consolidated and proceed under the leadership of one class representative’s lawyer,” Judge McMahon said.
She added parenthetically: “I am under no illusion that these cases are anything other than attorney-driven class actions.”
“He is using intervention as a vehicle to fight for control of what he anticipates will be a hotly contested lawsuit that will test the limits of a new and untried body of law – and assuming all of these cases end up in a single district (they may or may not), his lawyer is fighting for the right to be lead counsel.”
Since January, New York-based Clearview has been targeted by a series of class actions filed in Chicago and elsewhere, accusing it of violating people’s personal privacy rights. The company is accused of doing so by creating a database of images scraped from public websites to be sold to police, as well as to banks and retail theft prevention specialists.
The lawsuits assert the technology includes images of millions of Americans, regardless of their criminal past, and therefore amounts to what Mutnick’s suit described as “a massive surveillance state with files on almost every citizen, despite the presumption of innocence.”
Mutnick’s lawsuit principally alleged Clearview should be made to pay for allegedly violating the Illinois Biometric Information Privacy Act, by failing to notify the public of its actions, and by not providing notices and obtaining consent from those whose faces were scanned, stored and distributed. The lawsuit also alleged violations of federal law and the U.S. Constitution.
Mutnick’s lawyers have since asked a judge to issue a preliminary injunction against Clearview. Mutnick and Clearview remain embroiled in Chicago federal court on that injunction request, as well as a competing motion from Clearview to dismiss or transfer the case to New York.
In the weeks following, other actions have been filed in Illinois courts also leveling BIPA claims against Clearview.
However, other actions were also filed in other states, alleging violations under the Illinois BIPA and other states’ laws.
Six of those cases were removed to the federal court in New York City.
In late April, Mutnick filed a motion to intervene in New York, essentially seeking a chance to control the course of all proceedings against Clearview. Mutnick’s lawyers argue they should be able to do that, because they were the first to file suit against Clearview.
The judge noted Mutnick believes he should be able to control the cases “because his case and the Southern District (of New York) cases are ‘competing class actions, with overlapping classes, claims, parties, and legal and factual issues.’”
The judge, however, said Mutnick’s attempts to claim a stake in others’ lawsuits falls short, as his claims, while similar, are not identical enough to the other cases to allow him to claim control.
“The only such claim in which Mutnick has any interest is his own personal claim, which arises under the law of the state of Illinois,” McMahon wrote. “He has not the slightest interest in the claims that other plaintiffs in this Court … are asserting under the laws of Virginia and California; indeed, he arguably lacks standing to pursue those claims. And at this moment, he has no interest in the claim of any other Illinois plaintiff, either.”
Clearview is represented by the firm of Jenner & Block, of New York and Chicago.