Clearview AI Asks Court to Take Second Look at Dismissal Order in Biometric Information Privacy MDL

Controversial facial recognition company Clearview AI has asked Judge Sharon Johnson Coleman to reconsider her Valentine’s Day order that denied their motion to dismiss eight counts of the biometric information privacy suit against them.

Monday’s motion filed by Clearview AI Inc., subsidiary Rocky Mountain Data Analytics LLC (RM), co-founders Hoan Ton-That and Richard Schwartz, and general counsel Thomas Mulcaire raised two challenges to the last month’s order, arguing that although reconsideration serves “the limited purpose of correcting ‘manifest errors of fact or law,’” their case qualifies.

The sprawling multidistrict litigation states Illinois Biometric Information Privacy Act (BIPA) and other privacy-related law claims against Clearview AI, a company that self-describes as “a revolutionary, all-in-one, facial recognition platform” designed to help law enforcement. In essence, the plaintiffs claim that Clearview improperly collected, stored, and used Illinois residents’ unique biometric identifiers, specifically their faceprints without consent and proper disclosure. 

According to Clearview, the Chicago, Illinois court found two bases for Article III standing in connection with the plaintiffs’ state law claims. The defendants challenged the court’s finding that “nonconsensual taking of plaintiffs’ private information is a concrete harm,” arguing that it is contrary to controlling precedent, including the Supreme Court’s recent holding Ramirez v. TransUnion.

Clearview also contested the court’s second rationale, that the plaintiffs sufficiently alleged that Clearview’s “disclosure of their private information without their consent caused them the concrete harm of violating their privacy interests in their biometric data.” According to the defendants, the court reached this conclusion by improperly relying on a demonstrably false allegation—that Clearview disclosed the plaintiffs’ facial vectors to third-parties without their consent. 

“The Court’s acceptance of this allegation as true was not inappropriate, since the Clearview Defendants’ motion to dismiss was a facial challenge requiring the Court to treat all well-pled allegations as true,” the motion said.

Clearview then took issue with the court’s waiver holdings as to Mulcaire and RM’s personal jurisdiction and government contractor defenses, claiming “manifest error.” As to the government-contractor defense, Clearview argued that it was timely because it could be raised at any time during dismissal briefing, despite the court’s finding that it was waived because it was “made for the first time in their reply brief.”

Finally, Clearview sought clarification as to whether Mulcaire has been dismissed in view of the parties’ apparently different interpretations of the motion to dismiss order.

The plaintiffs are represented by Loevy & Loevy, Bursor & Fisher P.A., Hedin Hall LLP, Neighborhood Legal LLC, Community Lawyers LLC, and Webster Book LLP.

Clearview is represented by Jenner & Block LLP and Cahill Gordon & Reindel LLP.