On Monday in the Seventh Circuit, Clearview AI filed a motion asking the court to stay a mandate set to go into effect on Tuesday pending the filing and resolution of a petition for a writ of certiorari. The defendant explained that the “petition for certiorari will present substantial questions worthy of a grant of certiorari, and the balance of equities favors a stay.”
Clearview AI contended that “staying the mandate will prevent potentially wasteful state court litigation should certiorari be granted.” According to the motion, the appeal considered if the plaintiff, who alleged that the defendant sold access to her biometric information in violation of the Illinois Biometric Information Privacy Act (BIPA), “necessarily alleges an injury-in-fact for purposes of Article III standing.”
The plaintiff filed the putative class action lawsuit against Clearview AI last November in Illinois state court arguing that Clearview AI engaged in the “‘unlawful collection, capture, use, and storage of Plaintiffs’ biometric data’” in violation of Sections 15(a), (b), and (c) of BIPA.
The motion noted that shortly before Clearview AI sought to remove this lawsuit to federal court, it held in Bryant v. Compass Group USA, Inc. that “removal of a complaint alleging violations of Section 15(b) necessarily allege an injury-in-fact.” It explained that after the removal of the lawsuit, the plaintiffs voluntarily dismissed their claims and filed another putative class action only alleging violations of Section 15(c). Clearview removed this second lawsuit to federal court causing the plaintiffs to seek a remand which was granted because the plaintiffs narrowed their claim. The Seventh Circuit granted Clearview’s permission to appeal and the appellate panel affirmed the district court’s remand, stating that “allegations matter,” highlighting that the plaintiffs “had not expressly alleged they would suffer a concrete and particularized harm from the alleged statutory violation,” and that violations of Section 15(c) “do not necessarily cause concrete and particularized harms sufficient to give rise to Article III standing.”
The defendant averred that this instant action raises a substantial question that remained unsettled, warranting Supreme Court review. Specifically, according to Clearview AI, the petition raises the “question of when, under Spokeo, a statutory violation necessarily gives rise to a concrete and particularized injury-in-fact to establish Article III standing.” The Court reportedly noted that “Spokeo is far from clear on this point.”
Clearview AI explained that the Supreme Court “resolved that the violation of some rights ‘granted by statute can be sufficient … to constitute injury in fact,’ such that a plaintiff ‘need not allege any additional harm beyond the one [the legislature] has identified.’” However, the Supreme Court purportedly “provided few clues as to how to distinguish between statutory violations that necessarily give rise to concrete and particularized injuries and those that do not. As a result, lower courts have taken varying approaches to this inquiry since Spokeo.”
Consequently, the facial recognition company argued that the case should go to the Supreme Court because of the varying interpretive approach, additionally pointing to the Seventh Circuit’s admission that recent opinions “take Spokeo too far.”
Clearview AI also proffered that good cause exists for a stay in order to “prevent undue hardship and wasted resources.” In particular, Clearview AI highlighted the additional time and resources spent for both parties and the judicial system if the lawsuit is remanded to state court. Clearview AI claimed that “there is no significant prejudice to Plaintiffs if this case is stayed pending a Supreme Court decision,” pointing out that the plaintiffs have “carefully crafted their complaint to allege that they are not suffering any ongoing harm as a result of Clearview’s conduct.”
As a result, Clearview AI asked the Seventh Circuit to issue a stay on its mandate pending the Supreme Court’s resolution of Clearview AI’s writ of certiorari. Clearview AI is represented by Jenner & Block and Cahill Gordon & Reindel. The plaintiffs are represented by Miller Shakman Levine & Feldman; Forde & O’Meara; and Silver Golub & Teitell.
