Retailers, including Kohl's, Walmart, The Home Depot and Best Buy, have been hit with new class action lawsuits under Illinois' biometrics privacy law, accusing them each of improperly working with embattled facial recognition database creator Clearview AI to combat shoplifting, mere days after a federal judge rejected plaintiffs' attempt to rope those retailers into a larger biometrics-related action against Clearview.
On August 12, attorney James C. Vlahakis, of the Sulaiman Law Group, of Lombard, filed lawsuits in Chicago federal court against the four retailers. The lawsuits could include classes of potentially many thousands of plaintiffs whose faces were captured on surveillance cameras in any stores operated by those four retail chains in Illinois, or compared by those retailers against millions of identified face scans maintained by Clearview in their databases.
The lawsuits allege the retailers improperly shared and obtained facial images of guests in their stores from Clearview. According to the lawsuit, the retailers allegedly accessed Clearview's databases, which featured images of people's faces that had been "scraped" from online sources. The lawsuit indicates the retailers allegedly did so to identify people on footage captured by store surveillance cameras, likely to help the retailers deter shoplifting.
The lawsuits assert the retailers were required under Illinois law to get permission from people before capturing or sharing their facial images, which the lawsuit said is considered a unique biometric identifer under the Illinois Biometric Information Privacy Act.
As in other BIPA-related actions, the plaintiffs are asking the court to award them millions of dollars in damages, as each violation of the BIPA law carries the possibility of $1,000-$5,000 per violation. The law has been interpreted to define individual violations as each time a company scans or shares biometric identifiers, such as face scans, without authorization.
The lawsuits followed quickly behind a decision by a federal judge to allow those retailers to avoid becoming entangled in a larger class action lawsuit against Clearview itself.
On July 7, plaintiffs in the action against Clearview asked U.S. District Judge Sharon Coleman for permission to amend their complaint under the BIPA law to allow them to use their current lawsuits against Clearview to go after the four retailers they accuse of improperly using Clearview’s face scan database.
Judge Coleman denied that request in an opinion filed Aug. 10.
Clearview has been in court since 2020, defending against a blitz of now consolidated class action lawsuits that all assert it “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.
The class action already accused Macy’s — as named representative on behalf of the putative defendant client class — of improperly buying access to Clearview’s facial image database to cross-reference its own surveillance footage on thousands of separate occasions. But in their July 7 motion the plaintiffs sought to add several defendants, including two Macy’s entities and Alberstons Companies, corporate parent of the Chicago area Jewel-Osco supermarket-pharmacy chain.
Because Macy’s didn’t object to the plaintiffs’ motion for leave to amend their complaint, Coleman explained, she would not object to the addition of Macy’s Retail Holdings and Macy’s Corporate Services as defendants.
However, the remaining potential retailer defendants have no corporate connection to Macy’s. Although they all are Clearview clients, Coleman wrote, “the deadline for joining new parties was Oct. 1, 2021, the date plaintiffs proposed in the parties’ March 2021 Joint Proposed Management and Discovery Plan. Plaintiffs, however, not only missed that deadline, but did not address the deadline until their reply brief, after the Clearview defendants pointed it out to the court.”
Clearview also pointed to a hard discovery deadline of Sept. 26, 2022, and said amending the complaint so closely to that date would constitute severe prejudice against them.
“Class plaintiffs have switched gears by first asserting that Macy’s would be the named representative for the defendant ‘Clearview Client Class,’ but now seek to add more retail defendants as the ‘Client Defendants,’ ” Coleman wrote. “Although plaintiffs’ attempt to amend their pleadings is not late in this overall litigation, it is late in relation to the upcoming fact discovery deadline.”
Of equal importance, Coleman continued, is the lack of explanation for why any of Macy’s entities would be inadequate as named representatives or why adding the retailers would be essential to the claims, given all of them were Clearview clients before they filed the May 2021 complaint. She also said the plaintiffs didn’t show how their BIPA claims, which have a one-year limitation, connect the new retailers and the original allegations. She said there is a similar flaw as relates to New York Civil Rights Act allegations.
Coleman said the plaintiffs suggested a denial might lead them to file separate complaints against the retailers, which they implied would complicate ongoing multi-district litigation, but she explained such attempts “may be difficult due to timeliness issues.”
However, the Sulaiman firm appears ready to put Coleman's qualms about timeliness to the test, with its lawsuits against the four retail giants.
The Sulaiman firm is not representing the clients suing Clearview directly.
The new lawsuits were filed on behalf of named plaintiffs Adrian Coss and Maribel Ocampo, who claim the retailers allegedly improperly captured and shared footage of them and their minor children with Clearview.
Plaintiffs in the mass action against Clearview 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.
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.