The plaintiffs’ lawyers leading the massive biometrics class action against embattled facial recognition tech firm Clearview AI are seeking to greatly expand their case to include AT&T and major retailers including Walmart and Home Depot, who they accuse of improperly using Clearview’s database of “scraped” face images to identify people recorded by their store surveillance cameras, likely to combat shoplifting.
On July 7, plaintiffs in the mass action asked a federal judge for permission to amend their complaint to now go after the retailers under Illinois’ biometrics privacy law.
Potential new defendants in the case could include Walmart, Home Depot, AT&T, Best Buy, Kohl’s and Albertsons Companies, the parent company of Chicago area supermarket chain Jewel-Osco.
A copy of the amended complaint was obtained and published first by Law Street.
While the amended complaint was initially published on the federal court’s online docket, U.S. District Judge Sharon Johnson Coleman ordered the documents removed, for now, after Clearview indicated it would oppose the plaintiffs’ request to file an amended complaint.
In opposing the attempt to amend the lawsuit, Clearview described the plaintiffs’ move to add the retail defendants as “an act of transparent gamesmanship” with no “good faith basis.”
Clearview has been in court since 2020, defending itself against a blitz of class action lawsuits accusing the company of violating the Illinois Biometric Information Privacy Act.
The cases have been consolidated in Chicago federal court.
They all assert Clearview “covertly scraped billions of photographs of facial images from the internet and then used artificial intelligence algorithms to scan the face geometry of each individual depicted in the photographs to harvest the individuals’ unique biometric identifiers and corresponding biometric information.”
The action mainly centers on accusations against Clearview and its founder Hoan Ton-That and executive Richard Schwartz, both of New York.
However, the lawsuit as it now exists also leveled claims against retailer Macy’s.
The class action accuses Macy’s of improperly buying access to Clearview’s facial image database to cross-reference its own surveillance footage on thousands of separate occasions.
Judge Coleman specifically rejected Macy’s attempt to escape the lawsuit. In February, Coleman ruled Macy’s could be roped into the action against Clearview because Macy’s may have profited by using Clearview’s system “reducing the number of stolen goods.”
In their desired amended complaint, the plaintiffs sought to bring similar accusations against the other retailers.
In opposing the attempt to add the new retail defendants, Clearview argued Macy’s presence as a representative retail defendant should be sufficient.
Clearview said the plaintiffs have known for months, if not years, that large retailers, in addition to Macy’s, had used Clearview’s system.
Clearview claimed the plaintiffs missed by eight months a court imposed deadline for adding defendants.
Clearview said the attempt to add defendants is largely “strategic delay tactic” deployed by plaintiffs to extend an already “hotly contested” discovery process far into the future, to help plaintiffs “continue to search for ways to prove their case.”
They further assert the amended complaint, and its associated renewed discovery process, would impose significant costs on Clearview and other defendants, as the process drags on.
The judge has given the plaintiffs until July 21 to respond to Clearview’s arguments.
Clearview is represented by attorneys Lee Wolosky, Andrew J. Lichtman, Howard S. Suskin and
Precious S. Jacobs-Perry, of Jenner & Block, of Chicago; and Floyd Abrams and Joel Kurtzberg, of Cahill Gordon & Reindel, of New York.
Plaintiffs are represented by attorneys Mike Kanovitz and Scott R. Drury, of Loevy & Loevy, of Chicago; Scott A. Bursor and Joshua D. Arisohn, of Bursor & Fisher, of New York; Frank S. Hedin, of Hedin Hall, of San Francisco; Michael Drew, of Neighborhood Legal LLC, of Chicago; Michael Wood and Celetha Chatman, of Community Lawyers LLC, of Chicago; and Steven T. Webster and Aaron S. Book, of Webster Book, of Alexandria, Virginia.