The ‘bizarre’ twist in Clearview AI’s promised SCOTUS petition in biometric privacy case

February 26, 2021

By Alison Frankel | Reuters (February 25, 2021) -- The facial recognition software company Clearview AI is willing to go all the way to the U.S. Supreme Court to prove that its alleged violation of Illinois’ biometric data privacy law inflicted a concrete injury on Illinois residents who brought a class action against the company.

Wait, what? A class action defendant is vowing to fight at the Supreme Court to prove that plaintiffs who aren’t even alleging an actual injury meet constitutional standing requirements?

That’s right: Clearview AI’s lawyers at Jenner & Block and Cahill Gordon & Reindel asked the 7th U.S. Circuit Court of Appeals this week to stay the issuance of its mandate in Thornley v. Clearview AI. Clearview said the appeals court should hold off because the company plans to file a petition asking the Supreme Court to clarify when an alleged statutory violation suffices to establish a plaintiff’s right to sue under Article III of the constitution.

You’re probably thinking that plenty of other class action defendants have asked the Supreme Court to revisit this question after the justices' enigmatic 2016 ruling in Spokeo v. Robins. But Clearview AI, to the best of my knowledge, is the first defendant to argue that the circuit court erred in its interpretation of Spokeo by holding that plaintiffs do not have standing to sue in federal court!

The plaintiffs in the Thornley case filed their class action in state court, alleging that Clearview AI violated a provision of the Illinois Biometric Information Privacy Act that prohibits private parties from profiting from the sale of biometric data. Clearview AI removed the case to federal court. But the 7th Circuit affirmed the trial court’s decision remanding the class action to state court, holding that the plaintiffs’ complaint was carefully crafted to allege only a general, regulatory violation – not a concrete injury that would give rise to a right to sue in federal court.

Clearview AI’s lawyers declined to comment. But based on its brief requesting a stay from the 7th Circuit, it appears that that company will argue at the Supreme Court that the alleged state court violation did, in fact, represent a concrete and individual injury. The stay motion suggested that the 7th Circuit’s holding to the contrary is in tension with 9th Circuit precedent upholding Article III standing for plaintiffs who have alleged a violation of a statute that “identifies a substantive right to privacy.”

“It’s bizarre,” said plaintiffs’ lawyer David Golub of Silver Golub & Teitell, who represents the class that filed the state-court case against Clearview AI. “Every class action defendant is on my side in this case.” In a phone interview, Golub laughed as he envisioned amicus briefs at the Supreme Court from the likes of the U.S. Chamber of Commerce and the American Enterprise Institute, backing his argument that the mere violation of procedural statute is not a concrete injury under the test for Article III standing.

“Given how strange an argument this is for a defendant to make, you have to wonder if they’re just trying to delay or buy time,” Golub said.

The 7th Circuit on Tuesday ordered Golub to file a response to Clearview AI’s stay motion (and temporarily put off issuance of the mandate until it resolves the motion). Golub said he will make a two-pronged case for issuing the mandate even if Clearview AI does seek Supreme Court review. For one thing, he said, the Supreme Court isn’t going to grant review of the 7th Circuit’s decision. The appeals court was simply interpreting a state law, Golub said, and moreover held specifically that the provision at issue does not involve a substantive right. So, in his view, there’s no issue meriting the Supreme Court’s attention.

Golub told me he will also tell the 7th Circuit that Clearview AI will suffer no irreparable harm if the state-court litigation proceeds as the company seeks Supreme Court review.

As Clearview AI said in its stay motion, the Supreme Court has already granted review this term to a case that implicates Article III standing and statutory violations, Transunion v. Ramirez. I reported earlier this month that the business lobby has turned out in force in Transunion to argue that plaintiffs don’t meet Article III standing requirements when their only injury is a statutory violation of a privacy law. I can’t wait to see the amicus response to Clearview AI’s promised petition.