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Macy’s Asks Court to Certify Questions for Appeal After Denial of MTD in Clearview AI Biometric Privacy MDL

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According to a motion filed last Thursday in the Northern District of Illinois, Macy’s Inc. has decided to appeal the court’s decision to keep it in a consumer privacy case concerning facial recognition company Clearview AI.

The apparel retailer requested the certification of three questions for immediate appellate review. In January, Judge Sharon Johnson Coleman ruled that claims against Macy’s could proceed despite its arguments that the plaintiffs had no standing to sue it.

The lawsuit against Macy’s stems from its alleged use of defendant Clearview AI Inc.’s database to search for individuals caught on camera in its retail stores. According to the plaintiffs, Macy’s utilized Clearview’s database more than 6,000 times to search for shoppers with matching facial geometry.

The court’s opinion dismissed only two state claims of many. In particular, the court found that the plaintiffs alleged concrete and particularized injury sufficient to confer standing except as to claims requiring that they show economic loss.

Last week’s motion says that the order has far-reaching implications for “hundreds of other companies that have allegedly contracted with Clearview and may soon be swept into this litigation.”

Macy’s asserts that the court’s findings on standing need to be addressed by the Seventh Circuit given the significance of the 2021 Supreme Court data privacy holding in TransUnion v. Ramirez. In relevant part, the defendant points to the high court’s determination that statutory violations without any actual harm caused by the defendant are not enough to confer Article III standing, at least in the context of Fair Credit Reporting Act claims.

“Reasonable minds can differ as to what TransUnion means for plaintiffs alleging BIPA claims without pleading actual harm,” the filing noted. It further stated that appellate clarification would help resolve the case against Macy’s and the hundreds of claims the plaintiffs seek to assert against the defendant class.

The motion requests that the court also certify the question of “[w]hether California and New York statutes and common law protect the same set of rights secured by BIPA.” Macy’s explains that the ruling could impose Illinois Biometric Information Privacy Act strictures on California and New York companies without the state legislatures or judiciaries ever creating those rights within their borders.

Macy’s is represented by Taft Stettinius & Hollister LLP. The plaintiffs are represented by lead counsel Loevy & Lovey and also Bursor & Fisher P.A., Hedin Hall LLP, and Neighborhood Legal LLC.

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