CHICAGO — A federal appeals panel affirmed a decision that U.S. Supreme Court precedent means plaintiffs have a pathway to keep lawsuits concerning Illinois’ biometric privacy law in Cook County Circuit Court, a legal venue regarded by many as plaintiff friendly.
The underlying lawsuit dates to early 2020 when 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 AI.
The class action is one of many alleging Clearview violated the Illinois Biometric Information Privacy Act. Plaintiffs could stand to collect damages of $1,000-$5,000 per violation under the law for allegedly improperly scanning, storing or distributing Illinois residents’ personal data such as fingerprints, retinal scans or facial geometry, among others.
U.S. Seventh Circuit Court of Appeals Judge David F. Hamilton
| law.columbia.edu
Most of the lawsuits have included claims under a specific BIPA provision requiring companies to obtain consent and provide various notifications to Illinoisans before scraping and using 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. Clearview largely succeeded in using claims under that provision to keep most of those lawsuits in federal court, transferring many to federal court in its home district of New York.
Coleman agreed with the plaintiffs’ reliance on the Supreme Court’s 2016 decision in the case known as Spokeo Inc. v Robins to defeat federal standing and send the case back to Illinois state courts, where the Illinois Supreme Court has ruled plaintiffs do not need to show they were ever actually harmed to bring a potentially massive class action lawsuit for alleged technical violations of the BIPA law.
Clearview appealed Coleman’s ruling to the U.S. Seventh Circuit Court of Appeals. Judge Diane Wood wrote the panel’s opinion, issued Jan. 14. Judges Frank Easterbrook and David Hamilton concurred. Hamilton also wrote a concurring opinion.
Wood wrote the question is a matter of standing, and said Clearview is “championing” the plaintiffs’ right to sue in federal court. She said Coleman was correct to determine the plaintiffs’ revised lawsuit, with a “much more modest” class definition, alleges only a statutory violation of BIPA and therefore is suitable for state court. Although Clearview’s appeal asked the panel to treat the complaint like those it successfully removed to federal court, it refused.
Plaintiffs, Wood wrote, “described only a general, regulatory violation, not something that is particularized to them and concrete. It is no secret to anyone that they took care in their allegations, and especially in the scope of the proposed class they would like to represent, to steer clear of federal court. But in general, plaintiffs may do this."
Wood referenced the 2013 Supreme Court opinion in Standard Fire Insurance Co. v Knowles, in which plaintiffs wanted to keep their complaint in an Arkansas state court by pledging to seek less than $5 million in damages. The court rejected that attempt, noting the class hadn’t been certified. The Clearview plaintiffs are different, Wood said, because they voluntarily offered a narrower class definition than what might have been possible.
“We have no reason to believe that the district court, acting on its own initiative, would certify a different and broader class; to that extent, the rule that the plaintiff controls her own case applies,” Wood wrote, adding the narrow litigation doesn’t prohibit other possible plaintiffs from filing a broader lawsuit, albeit one that might end up in federal court.
In his opinion concurring with Wood's, Judge Hamilton focused on “broader cautions about standing issues under consumer-protection statutes."
First, he noted misuse of biometric data is “an especially dangerous modern version” of identity theft, because even a compromised Social Security number can be replaced. But he also highlighted Spokeo, a Fair Credit Reporting Act lawsuit in which the court established standing requires concrete injuries, but “intangible injuries can nevertheless be concrete.”
“This Delphic instruction raised more questions than it answered,” Hamilton wrote, saying courts interpreting federal consumer protection laws have struggled with a lack of clarity.
Hamilton suggested Congress has the power to clearly delineate what legal injuries are suitable for which courts, or whether enforcement of certain statutes needs to be the purview of a federal agency. Hamilton further said other recent circuit appellate court opinions express similar concerns about a lack of clarity.
“Sooner or later, though, I hope, the Supreme Court will revisit the problem of standing in private actions based on intangible injuries under a host of federal consumer-protection statutes,” he wrote.
Clearview has been defended in the action by attorneys with the firm of Jenner & Block LLP, of Chicago.