A Chicago federal judge has refused to stop plaintiffs from bringing their biometric privacy class action against facial recognition tech company Clearview A.I. back to Cook County court, saying the plaintiffs’ lawyers have the right to manipulate their claims to make sure the case stays in their chosen court system.
This spring, attorneys with the firms of Miller Shakman Levine & Feldman LLP and Forde & O’Meara LLP, both of Chicago, along with the firm of Silver Golub & Teitell LLP, filed a class action complaint against New York-based Clearview.
The lawsuit accused Clearview of violating the Illinois Biometric Information Privacy Act.
The class action is one among several others targeting Clearview for allegedly violating the Illinois BIPA law. Under that law, plaintiffs could stand to collect damages of $1,000-$5,000 per violation for improperly scanning, storing or distributing Illinois residents’ so-called biometric identifiers. These could include fingerprints, retinal scans or facial geometry, among others.
The law has particularly been used in recent years by plaintiffs’ lawyers to bring thousands of lawsuits against employers in Illinois, typically for requiring employees to scan their fingerprints to establish their identity when punching in and out of work shifts.
However, the law has also fueled a number of lawsuits against so-called Big Tech firms, including Facebook and Google, among others.
When applied to even small employers, total claims can reach into the hundreds of thousands of dollars, and for tech giants, claims can total in the billions of dollars.
Nearly all of the lawsuits targeting Clearview have accused the company of improperly “scraping” and storing images of people pictured in photographs posted online. Clearview then would convert those photos into biometric facial scans and sell those scans for use by law enforcement and others, according to court filings.
Most of the lawsuits have included claims under a specific provision of the BIPA law that allegedly would otherwise require companies to obtain consent and provide various notifications to Illinoisans before scraping and using their photographs.
Federal courts have interpreted this kind of claim as a claim for actual injury, which, under U.S. Supreme Court precedent, means the claims can belong in federal court.
To date, Clearview has largely succeeded in using the claims under that provision to keep most of those lawsuits in federal court, and transferring many to federal court in its home district of New York.
However, in the most recent lawsuit, those kinds of claims were not added. Rather, the lawsuit brings only one claim, under a different provision of the BIPA law, which merely makes it illegal for companies to “sell, lease, trade, or otherwise profit from a person’s biometric identifier or biometric information.”
Under this provision, the plaintiffs are not seeking damages for “actual injury” caused by Clearview’s alleged actions.
While the Supreme Court has ruled such lawsuits have no place in federal court, they can be pursued under Illinois law.
Specifically, the Illinois Supreme Court has ruled class actions can proceed against companies under the BIPA law, whether or not plaintiffs can show they were ever actually harmed by scans, storage or distribution of their biometric information.
Clearview cried foul, asserting this kind of streamlined claim was a manipulation of the law, specifically to avoid allowing Clearview to get the case out of Cook County courts, which have a reputation as one of the most plaintiff-friendly court venues in the U.S.
U.S. District Judge Sharon Johnson Coleman, however, said the plaintiffs are within their rights to fine tune their lawsuits in this manner.
“Plaintiffs purposely narrowed their claim to the general prohibition of Clearview selling and profiting from plaintiffs’ biometric data and filed their lawsuit in state court where such actions are allowed…,” Judge Coleman wrote.
She remanded the case to Cook County Circuit Court.
This most recent lawsuit was filed on behalf of named plaintiffs Melissa Thornley, Deborah Benjamin-Koller and Josue Herrera, all identified as residents of Cook County.
The lawsuit seeks to expand the action to include potentially millions of other Illinois residents, whose photos may have been allegedly scraped by Clearview from 2016-2020.
Clearview has been defended in the action by attorneys with the firm of Jenner & Block LLP, of Chicago.