California Plaintiffs Ask for Remand After JPML Consolidates Case with Clearview AI MDL

Four California residents and two community organizations have asked a Chicago, Illinois court overseeing the multidistrict consumer privacy litigation against facial recognition company Clearview AI Inc. to remand their case to Alameda County Superior Court. Wednesday’s motion claims that Clearview improperly removed their case to federal court in June.

The instant complaint was filed in April 2021 by the plaintiffs, self-described as frequent critics of police and U.S. Immigration and Customs Enforcement practices. They name several northern California law enforcement agencies as defendants in addition to Clearview AI Inc. and related individuals and entities.

Their suit takes aim at Clearview’s ostensibly illegal photographic database, which it created by “acquiring, storing, and exploiting the likenesses of millions of Californians.” The complainants claim that Clearview’s business threatens them and others by “plac[ing] all California residents in a perpetual police lineup without their authorization, and subjects people of color to a substantially higher danger of being misidentified by law enforcement.”

The motion explains that the operative complaint, the latest of several iterations, was filed after BuzzFeed News released an investigative report finding that the defendant law enforcement agencies were among over 1,800 public agencies that ran searches on Clearview. The plaintiffs contend that the article illuminated, for the first time, that individuals employed by the City and County of Alameda continued to use Clearview even after the city prohibited the use of facial recognition technology.

This week’s motion comes after the Judicial Panel on Multidistrict Litigation (JPML) consolidated the case with the privacy class action. In that decision, issued earlier this month, the panel rejected the California plaintiffs’ contentions about the dissimilarity of the suits and other objections such as Clearview’s allegedly improper removal and the plaintiffs then-pending motion for remand in the Northern District of California.

Now, the plaintiffs argue that Clearview has failed to establish that removal was proper under any of the arguments it advanced. The plaintiffs first assert that the California defendants were not fraudulently joined. “Clearview cannot prove that there is no “reasonable possibility” that Plaintiffs could prevail on either their aiding and abetting or constitutional claims against California Defendants, particularly because the claims involve complex questions of state law,” the motion says.

The plaintiffs also claim that “procedural misjoinder” provides no basis for removal. They dually assert that the doctrine is inapplicable in the context of removal, and even if it did apply, no parties have been misjoined.

The plaintiffs are represented by Braunhagey & Borden LLP and Just Futures Law.