Editor's note: This report has been revised from an earlier version to include a statement from attorney Scott Drury.
Loevy & Loevy, a Chicago law firm representing plaintiffs in some of the largest class actions under the state’s biometrics privacy law, is asking a judge to preserve a key client relationship because they said one of its former attorneys is working to exclude the firm from getting paid in connection with that litigation.
Earlier this month, the Loevy firm led a case to trial that secured a $228 million verdict in favor of about 45,000 truck drivers who sued railroad operator BNSF, over alleged violations of the Illinois Biometric Information Privacy Act. Attorneys Michael Kanovitz and Jon Loevy, of Loevy & Loevy, were part of the legal team representing the truckers. The verdict was the first of its kind in any of the thousands of BIPA-related class action lawsuits filed in state court in Illinois.
Scott Drury, formerly of Loevy & Loevy
Kanovitz, along with attorneys Scott Drury and Andrew Miller, also have worked with plaintiffs on a BIPA-related class action against tech firm Clearview AI. That action involves allegations the New York-based facial recognition technology company violated BIPA when it scraped more than three billion photographs posted online, then used artificial intelligence algorithms to scan facial geometry, harvesting unique biometric identifiers to build databases it then sold to retailers, law enforcement agencies and others.
In connection with that case, Kanovitz and Jon Loevy filed a motion Oct. 22 with U.S. District Judge Sharon Coleman seeking clarification “the court intended to appoint Loevy & Loevy as lead class counsel, as opposed to the individual lawyers who at the time worked at the firm.”
On Sept. 23, according to the motion, “with discovery winding down and settlement negotiations picking up,” Drury resigned from Loevy & Loevy and directed the firm to “immediately withdraw from the case. This was presumably so that any resulting attorneys’ fee would come to his new firm,” named Drury Law.
In a statement emailed to The Cook County Record, Drury responded to the Loevy & Loevy brief, saying: “I strongly dispute the various assertions made by my former firm in its motion. I look forward to filing my own robust response on November 1 as ordered by the Court, which will rebut the motion and set the record straight. At all times, I have represented the best interests of my clients and putative class members. Presently, it would not serve their best interests for me to try to condense or preview my response in a brief statement.”
The attorney fees at stake could be massive. Class actions against big tech companies for alleged BIPA violations on platforms like Google, Facebook and TikTok, have resulted in settlements ranging from $90 million to as much as $650 million. Attorneys have claimed from 15% to 35% of BIPA settlements in fees.
Attorneys that led a recent $100 million settlement with Google will receive $35 million in fees. And the lawyers in charge of the $650 million Facebook BIPA settlement walked away with $97.5 million.
It is unknown at this point how much Loevy & Loevy would receive from the $228 million verdict against BNSF, presuming the verdict is upheld on appeal.
Loevy & Loevy said it urged Drury to let it finish the BNSF trial before addressing the Clearview representation matter with Judge Coleman. But instead Drury allegedly responded by ordering all Loevy & Loevy lawyers to withdraw within 48 hours or he would initiate proceedings for disobeying client directive. Coleman conducted a hearing on the dispute Oct. 14, at which Loevy & Loevy said she clarified Drury’s role in the litigation as a former employee of the firm.
“The conclusion that Mr. Drury is putting his own economic self-interest above that of the class is unavoidable,” the firm stated. “Put simply, there is no universe where the class is better served by firing (Loevy & Loevy). … Drury’s ill-conceived power-grab should be rejected.”
Despite concerns about his tactics, Loevy & Loevy clarified it wasn’t seeking to have Drury tossed from the case. It called him “a skilled attorney who has been very involved in the litigation to date” and expressed hope Drury would continue the work done over the past two years under the firm’s senior partners. However, it continued, given the firm’s experience with BIPA litigation, including success in the BNSF trial, Loevy & Loevy insisted it remain lead class counsel.
The case against Clearview dates back to late 2019. At that time, Miller, who works in Loevy & Loevy’s privacy division, started investigating Clearview through use of Freedom of Information Act-obtained documents.The firm said that advance work made it positioned to file a lawsuit shortly after a January 2020 New York Times article on Clearview’s business practices.
Loevy was among several firms and legal organizations to sue Clearview over the alleged illegal face scans. Those similar cases have been consolidated by the court into a single class action proceeding.
Loevy & Loevy asserted Kanovitz was "instrumental in creating the complaint," and including "the novel and creative civil rights claims.”
In contrast, they said Drury was new to the firm when Miller began his work on Clearview.
Drury eventually was responsible for day-to-day litigation. Miller also has since left the firm, but the motion said he had “a lead role in drafting the motion and the reply in support of preliminary injunction.”
The firm further noted Drury wasn’t mentioned individually in its motion to be named interim lead class counsel, which Coleman approved in August 2020.
In February, Coleman rejected Clearview’s motion to dismiss the majority of the underlying complaint.
Loevy & Loevy said that led Clearview to reach out to Drury directly in July regarding settlement, including flying an attorney to Chicago for a meeting. Loevy & Loevy said it only learned of these conversations by speaking to Clearview’s lawyers after Drury’s resignation.
Clearview and its executives have been represented in the action by attorneys Precious S. Jacobs-Perry, Howard S. Suskin and Andrew J. Lichtman, of the firm of Jenner & Block, of Chicago and New York; and Floyd Abrams and Joel Kurtzberg, of Cahill Gordon & Reindel, of New York.
“Like all of the firm’s cases, this one was assigned to a firm attorney with primary responsibility, but the firm took seriously its appointment as lead class counsel and very much considered it a case of the firm,” Loevy & Loevy said in its motion. “And in any event, every hour Mr. Drury billed while on the firm’s payroll is an hour that belongs on the firm’s side of the ledger, not Mr. Drury’s.”
Drury came to Loevy & Loevy after three years in the Illinois House of Representatives and a failed bid in the 2018 Democratic primary to replace outgoing Attorney General Lisa Madigan. He has worked as an adjunct law professor at Northwestern University and previously worked as an assistant U.S. attorney.
In asking Coleman to clarify it, not Drury, is the formal lead Clearview class counsel, Loevy & Loevy said Drury persuaded another client to follow him to his new firm.
“That other client is the lead class member in seven different other class actions filed against IBM, Google, Amazon, Microsoft and others,” according to the motion. “By any fair accounting, that is a lot of complex class action lawsuits for a single lawyer to litigate against some of the biggest defense firms in the country. It would hardly be optimal for the Clearview class to be represented by a single lawyer whose attention will be so divided.”
Loevy & Loevy said it has already replaced Drury with Tom Hanson, “who has 20-plus years of relevant complex litigation experience” and further argue Drury had only “pretextual excuses” for his resignation. That said, “while there are obviously bad feelings about how this has gone down, L&L is committed to putting all of that to the side and continuing to work with Mr. Drury in the best interests of the class” so long as Drury isn’t named co-lead counsel. It accused him of “politicking to try to stay on as co-lead counsel as part of a newly-formed coalition” of firms that failed at earlier attempts to become class counsel.
“Even conceding that the new members of Mr. Drury’s apparent coalition are also undoubtedly very experienced, that hardly means that four leads is more optimal than one” according to the motion. “Negotiations and trials are particularly ill-suited for co-leadership where, as here, there are trust issues and prospects for power struggles. L&L is well qualified to serve as lead counsel, and based on the court’s comments at the prior hearing, that was the result the court intended.”
Jonathan Bilyk contributed to this report.