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7th Circ. Won’t Revisit Clearview BIPA Suit Remand

February 17, 2021 

By Morgan Conley | Law360 (February 16, 2021) — The Seventh Circuit on Tuesday stood by its ruling affirming that a biometric privacy lawsuit brought by Illinois residents against facial recognition technology company Clearview AI should play out in state court.

The appeals court will not revisit a unanimous opinion last month that determined Illinois residents carefully and permissibly tailored their allegations to avoid litigating their suit in federal court. The three judges on the panel that issued the opinion voted to deny the company’s rehearing request, and no other judge sought a vote on a request for the full court to consider the ruling, according to Tuesday’s order.

The residents, Melissa Thornley, Deborah Benjamin-Koller and Josue Herrera, have accused Clearview AI of unlawfully profiting from pictures it scanned on the internet but did not allege they suffered a concrete injury that would give them Article III standing to proceed in federal court.

The Illinois residents’ attorney, David Golub of Silver Golub & Teitell, told Law360 on Tuesday that the denial of rehearing doesn’t come as a surprise.

“There’s really no federal issue in this case,” he said. “The case belongs in state court where the courts have said it should go.”

In a petition for panel rehearing or rehearing en banc filed less than two weeks after the opinion, Clearview urged the circuit court to determine the panel incorrectly found no federal standing for their claim. The company argued that the ruling conflicts with case precedent regarding the Illinois Biometric Information Privacy Act “and risks deepening the inconsistent application of” the U.S. Supreme Court’s Robins v. Spokeo decision outlining the requirements for Article III standing.

The company argued that courts interpreting Spokeo have found Article III standing where plaintiffs allege concrete harms from statutory violations, and where an alleged statutory violation inherently entails a concrete and particularized harm, which Clearview argues is the case in the present dispute.

The Seventh Circuit declined to revisit its ruling to the contrary.

The January decision examined a plaintiff’s standing to proceed federally on a claim under section 15(c) of BIPA, which blocks private entities from sharing or profiting from the biometric information they collect without consent.

The panel noted at the time that circuit BIPA precedent, including the court’s Bryant v. Compass Group and decisions in which judges found standing for Fox’s claims under section 15(a) of BIPA but not Bryant’s, show that federal standing for essentially any BIPA claim depends heavily on the allegations in the complaint at issue.

In a special concurrence to the January opinion, Circuit Judge David Hamilton pointed out that reviewing Seventh Circuit precedent regarding BIPA standing fails to reveal a “consistently predictable rule or standard” when determining whether a plaintiff’s suit can proceed in federal court.

Clearview’s alleged violation of BIPA section 15(c) is the sole claim in the three Illinois residents’ suit. On behalf of a proposed class of affected Illinois residents, they allege Clearview violated the law by selling access to a database of biometric facial scans containing their biometric identifiers and information to businesses in Illinois.

The facial recognition company removed the residents’ suit to federal court after they launched it in state court in May, but the residents asked the district court to remand it since it didn’t allege an Article III injury. The lower court granted their request in October, saying a plaintiff “is the master of her own complaint” and that the residents had made a permissible strategic decision to narrowly tailor their allegations.

The Seventh Circuit’s decision affirming that finding means the three residents’ suit will not play out alongside a series of lawsuits consolidated in multidistrict litigation in the Northern District of Illinois. Those suits claim Clearview’s database is full of billions of facial data points “scraped” from images posted to platforms such as FacebookInstagram and Twitter. Uploading a photo to the database allows users to identify private citizens and gives them access to all the personal details Clearview has obtained, according to the suits.

Counsel for Clearview didn’t immediately respond to a request for comment Tuesday.

The residents are represented by David Golub of Silver Golub & Teitell LLP, Daniel Feeney of Miller Shakman Levine & Feldman LLP and Kevin Forde, Brian O’Meara and Kevin Malloy of Forde & O’Meara LLP.

Clearview is represented by Clifford Berlow, David Saunders, Howard Suskin, Lee Wolosky and Andrew Lichtman of Jenner & Block LLP and Floyd Abrams and Joel Kurtzberg of Cahill Gordon Reindel LLP.

The case is Melissa Thornley et al. v. Clearview AI Inc., case number 20-3249, in the U.S. Circuit Court of Appeals for the Seventh Circuit.

–Additional reporting by Celeste Bott and Lauraann Wood. Editing by Gemma Horowitz.