A Chicago attorney has responded to accusations his former firm leveled in federal court that he attempted to elbow his former firm out of leading a major biometrics class action settlement.
The dispute pits the Chicago firm of Loevy & Loevy against Scott Drury, a former assistant federal attorney, state lawmaker, candidate for attorney general and adjunct law professor at Northwestern University who resigned from the Loevy firm on Sept. 23.
Drury and Loevy have recently become embroiled in a dispute over who gets to represent a group of plaintiffs in a potentially massive class action against facial recognition tech firm Clearview AI. The lawsuit accuses the New York-based company of violating Illinois' Biometric Information Privacy Act when it scraped more than three billion photographs posted online, then used artificial intelligence algorithms to scan the facial geometry of people imaged in those photos, harvesting unique biometric identifiers to build databases it then sold to retailers, law enforcement agencies and others.
At stake is potentially millions of dollars in attorney fees, as Clearview appears open to discussing a settlement to resolve the claims.
Loevy & 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.” The firm said Drury’s resignation coincided “with discovery winding down and settlement negotiations picking up." Loevy & Loevy accused Drury of directing 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.
On Nov. 1, Drury filed an opposition to that motion in which he accused his former firm of making “false claims regarding Drury’s character and intent.” He noted the firm’s motion acknowledged Drury is “a skilled attorney” who put the most hours on the Clearview case and said forcing him from his position as a lead attorney would prejudice named plaintiffs and potential class members.
Loevy & Loevy asked Coleman to keep Drury on the plaintiffs’ team but argued having co-lead counsel would be impractical. In his motion, Drury said the firm “does not even know what this case is about,” asserting it misstated Clearview’s business model to be solely about mug shots, and further accused the firm of prejudicing the putative class by disclosing a consulting expert and “confidential settlement communications.”
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. According to Loevy & Loevy’s motion, Clearview reached 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.
Drury asked Coleman to grant Loevy & Loevy’s “various pending motions to withdraw” from representing the class and said she should “modify the order designating Drury as sole interim lead counsel and designate Joshua D. Arisohn of Bursor & Fisher, P.C., and Frank S. Hedin of Hedin Hall LLP as interim co-lead counsel along with Drury to allay any concerns the court may have regarding resources.”
Countering Loevy & Loevy’s position about its history, Drury said he proposed forming a division at the Loevy firm to focus on privacy litigation, during his interview process before joining the firm. He further said that although Coleman granted on Oct. 14 the firm’s request for leave to file a motion to intervene on behalf of class members who wanted it to remain class counsel, the Loevy firm never filed such a motion and instead asked Coleman to clarify an earlier order that would give it the desired outcome.
But Drury said even the order Loevy & Loevy sought to clarify proves Dury’s position. He cited a passage from the motion that said “from the outset, Drury has taken the lead in aggressively moving this litigation forward,” which included seeking an injunction that “resulted in defendants changing many of their business practices to avoid court-mandated changes.”
Drury also said Coleman had taken notice of his efforts to consolidate lawsuits naming Clearview as a defendant and to build coalitions among the many firms representing various plaintiffs. Drury acknowledged he had worked at Loevy & Loevy at the time of that designation order. But Drury said the order “gives no indication” that professional affiliation was a factor in his designation as interim lead counsel.
While further attesting to Loevy & Loevy’s experience with class litigation and a financial commitment to the Clearview lawsuit, he said “none of that experience involved privacy class actions beyond those filed as part of the privacy practice Drury founded and led” and that no one left at the firm has experience with BIPA or other data privacy violations.
Michael Kanovitz and Jon Loevy, of Loevy & Loevy, were part of the legal team representing about 45,000 truck drivers who sued railroad operator BNSF for alleged BIPA violations, which resulted in a jury award of at least $228 million. But Drury said the firm only got involved three years into the lawsuit, following denial of summary judgment. He also said the trucker case involved fingerprints, and the Clearview case involves facial geometry, a more technical issue.
Drury also said the firm has spent less than $33,000 and noted he assumed responsibility for an upcoming $50,000 in pending expert invoices, arranging for them to come due later in November, “hopefully after resolution of this dispute.” He further contended Loevy & Loevy rejected an opportunity to work with him, and other attorneys helping to lead the Clearview litigation, from the firms of Bursor & Fisher and Hedin Hall.
“Now that the motion has exposed L&L’s inadequacy in such a profound way, it is clear that L&L’s continued participation in the case would be detrimental," Drury wrote.