Clearview A.I., the company that specializes in creating databases of people’s faces by scraping their images from photos posted online, will ask the U.S. Supreme Court to answer, once and for all, whether class actions brought under Illinois’ biometrics privacy law can belong in federal court, or if plaintiffs’ lawyers can creatively tailor their lawsuits to ensure they are heard in Illinois’ famously plaintiff-friendly county courtrooms.
On Feb. 22, New York-based Clearview filed a motion in the U.S. Seventh Circuit Court of Appeals, asking the appellate judges to place a hold on an order that would send at least one such class action back to Cook County court, while it petitions the nation’s highest court to take up the legal question that has vexed judges in Chicago and elsewhere.
For nearly a year, Clearview has battled class actions accusing the company of violating the Illinois Biometric Information Privacy Act (BIPA.)
While the law has been on the books since 2008, the BIPA law has been used by plaintiffs’ lawyers to bring thousands of class actions in Cook County Circuit Court and other courts in Illinois and elsewhere against businesses and employers of all types and sizes.
The lawsuits have heavily targeted employers that require employees to scan fingerprints or other so-called biometric identifiers to verify their identities when punching the clock at the beginning or end of work shifts, or when accessing sensitive or secure facilities, such as cash rooms at retail stores or drug closets at hospitals.
However, the law has also been used to target big tech companies. Facebook, for instance, has agreed to pay $650 million to settle a class action over its so-called photo tagging technology. The lawsuit accused the social media giant of improperly scanning, without authorization, the facial geometry of Facebook users and others in photos uploaded to their platform.
In 2020, Clearview came under fire for its use of technology that “scrapes” people’s facial images from photos posted to public websites, compiles the images into databases, and then makes those databases available to law enforcement and others.
Clearview also faces a series of similar class actions pending in federal court in New York.
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.
However, after Clearview succeeded in sending most of the lawsuits to federal court in New York, the lawyers leading the class action brought by Miller Shakman and Forde & O’Meara rewrote their action to avoid those specific kinds of claims. Rather, the lawsuit brought 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.”
That means the plaintiffs are not seeking damages for “actual injury” caused by Clearview’s alleged activities.
In its landmark 2016 decision known as Spokeo v Robins, the Supreme Court ruled, generally, plaintiffs need to demonstrate they suffered actual harm before being allowed to bring big class actions against businesses in federal court.
The question centers on the legal concept known as “standing” – essentially, whether a plaintiff has an actual claim for actual harm for courts to redress.
A bare violation of a technical provision of a law may not be enough to keep a class action lawsuit in federal court, the justices have ruled.
However, in 2019, the Illinois Supreme Court ruled Illinois courts have no such impediment, at least involving the BIPA law. Even a technical violation of the law’s notice and consent provisions could be enough to force a business to pay potentially crippling damages, should they be sued and lose in court. Plaintiffs do not ever need to prove they were actually harmed in any way from the collection of their biometric data, the state Supreme Court ruled.
State courts have also steadily dismantled defenses raised by businesses targeted under BIPA suits. That has prompted many companies to begin settling BIPA claims, with settlement amounts ranging from hundreds of thousands to millions of dollars, with plaintiffs’ attorneys usually claiming a third of any settlement funds.
With such sharp distinction in standing requirements, plaintiffs lawyers and defense lawyers have swapped their usual roles in federal court, with plaintiffs lawyers claiming their clients suffered no real injuries, and defense lawyers asserting the technical violations should be considered a concrete injury, under the Spokeo decision, allowing the cases to remain in federal court.
Federal courts in Illinois and elsewhere have varied in their answers to those legal questions.
After the Seventh Circuit Court of Appeals ruled the Thornley case belonged in Cook County court, Clearview asked the appellate court to put its remand order on hold. Clearview said it was appealing to the U.S. Supreme Court, asking it to clarify the question of standing under Spokeo, and unravel the tangle of varying decisions on what can and cannot be considered an actual injury sufficient to keep a lawsuit in federal court.
At a minimum, Clearview said it believed the U.S. Supreme Court could provide further clarity when it decides a different case. Known as Trans Union LLC v Ramirez, the high court is set to answer the question of whether federal law and court rules allow class actions “where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”
“The variety of approaches to applying Spokeo demonstrates that Supreme Court review of the issue to be raised in Clearview’s petition would be appropriate,” Clearview wrote in its Feb. 22 motion to the Seventh Circuit.
“What is more, the Supreme Court already has recognized that this area of law is in need of clarification.”
Further, Clearview said, allowing the case to return to Cook County court would only cause all sides to rack up costs and tax scarce court time and resources, when the entire matter could be upended by an answer from the Supreme Court.
The Seventh Circuit has not yet ruled on the motion. The court has given the plaintiffs until March 5 to file their reply.
Clearview is represented in the action by attorneys Clifford W. Berlow, David P. Saunders, Howard S. Suskin, Lee Wolosky and Andrew J. Lichtman, of the firm of Jenner & Block LLP, of Chicago and New York; and Floyd Abrams and Joel Kurtzberg, of Cahill Gordon & Reindel LLP, of New York.
Plaintiffs Thornley, Benjamin-Koller and Herrera are represented by attorneys David S. Golub, of Silver Golub & Teitell LLP, of Stamford, Conn.; David M. Feeney, of Miller Shakman; and Kevin M. Forde, Brian P. O’Meara and Kevin R. Malloy, of Forde & O’Meara.