MDL Court Clarifies Class Leadership in Clearview AI Biometric Privacy Case

Before the Thanksgiving holiday, the Northern District of Illinois issued an order clarifying who lead counsel is in the privacy-related multidistrict litigation against Clearview AI. The court said that the law firm Loevy & Loevy (L&L) rather than its former attorney Scott Drury is interim lead counsel after the lawyer and his former employer disputed the meaning of the court’s appointment order.

Last week’s order recounted that in March 2021 Judge Sharon Johnson Coleman appointed Scott Drury, counsel with L&L, to the role of interim lead counsel. On Sept. 23, 2022, after 18 months of litigation under this appointment, Drury terminated his employment with the firm to operate as a solo practitioner. “Drury notified the Court of this change on September 28, 2022 in a perfunctory change of address filing as opposed to alerting the Court of this major shift in the representation dynamics,” the opinion added.

After five L&L attorneys of record moved to withdraw their appearances for several clients, the court learned at a status hearing that the lawyers did not wish to withdraw, but did so at their clients’ request.

L&L then filed a motion for clarification as to whether Drury or the firm would continue as interim co-lead counsel. The filing argued that the feud between the firm and its former employee implicated the interests of the nationwide class and contended that Drury was putting his own economic interests above those of class members.

Drury filed a responsive brief, disputing the firm’s characterization of his intent and asserting that the court unequivocally chose him as co-lead counsel. He also alleged that the firm was not fit for the leadership role because its involvement was essentially his involvement.

The court convened oral argument on the matter and in last week’s opinion, sided with L&L and allowed it to continue to serve as interim lead counsel.

Judge Coleman opened her opinion by commenting that “[t]hough this matter has devolved into disarray, the issue before the Court is quite simple: who did the Court appoint as interim lead counsel, and may they continue as such?”

Though the court underscored attorney Drury’s relevant litigation experience, it said that had Drury sought the interim lead counsel position as a solo practitioner initially, the court would not have appointed him, as counsel selection depends on a host of other factors.

The opinion further found that L&L may procedurally remain as interim class counsel despite the fact that it does not represent a named plaintiff. Noting that the particular circumstance is “uncommon,” Judge Coleman concluded that it is not, however, unheard of.

Lastly, the court reminded the lawyers that it both retains the ability to amend the appointment order and that it will revisit the issue of lead counsel at the class certification stage. Judge Coleman then directed plaintiffs’ counsel to complete a number of tasks prior to the end of the year regarding division of labor and responsibilities going forward.