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Plaintiffs Oppose Macy’s Bid to Certify Questions for Interlocutory Appeal in Clearview AI MDL

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The consumers who allege Macy’s Inc. used Clearview AI Inc.’s facial recognition technology biometric database to identify customers in its retail stores asserted Wednesday that the court’s refusal to dismiss their claims should not be given another look. Their opposition to Macy’s request to certify questions for immediate appeal argues that the court’s decision was well-founded and Macy’s “does not present any controlling and contestable question of law, the resolution of which would speed up this litigation.”

Macy’s attempt to exit the case dates to June 2021. In its dismissal motion, Macy’s raised standing and pleadings defenses. While the motion was pending, the retailer asked the court to stay discovery, arguing that the plaintiffs’ requests were burdensome in view of the fact that the court’s dismissal opinion could resolve some or all of the Illinois Biometric Information Privacy Act (BIPA) claims pending against it.

In late January, the court issued a ruling permitting nearly all the plaintiffs’ claims to proceed against Macy’s. The defendant responded with a motion to certify three questions for immediate appellate review concerning whether the court correctly answered several questions of “first impression.” The questions are:

1. Whether, in light of the U.S. Supreme Court’s decision in TransUnion, allegations of bare statutory violations of Illinois’ Biometric Information Privacy Act, unaccompanied by allegations of actual harm, confer Article III standing.

2. Whether, as a matter of law, a company’s use of a biometric database for loss prevention suffices to allege “profit” under Section 15(c) of BIPA.

3. Whether California and New York statutes and common law protect the same set of rights secured by BIPA.

In this week’s rebuttal, the plaintiffs argue that those questions do not meet the legal requirement for interlocutory certification. Concerning the standing question, the plaintiffs argue that they sufficiently alleged a concrete injury BIPA aims to protect against like the “loss of their power and ability to make informed decisions about the collection, storage, and use of their biometric information.” 

They assert that invoking TransUnion does not undermine the court’s ruling, but bolsters it because therein, the Supreme Court contemplated that intangible harm such as reputational damage and the disclosure of private information to be sufficient to confer standing in certain cases.

As for the BIPA Section 15(c) ruling, the plaintiffs made both a substantive argument and contended that Macy’s did not show any likelihood, let alone a substantial likelihood, that the court’s ruling would be reversed on appeal. “If the issue were to be certified, the Seventh Circuit would have to predict how the Illinois Supreme Court would decide the issue,” the opposition explained.

For the third question regarding state law, the plaintiffs again made both a merits argument and similar to their 15(c) contention, further reason that Macy’s has not demonstrated “a contestable issue” and that “certification will speed up this litigation.”  

The plaintiffs are represented by Loevy & Loevy, Bursor & Fisher P.A., Hedin Hall LLP, Neighborhood Legal LLC, Community Lawyers LLC, and Webster Book LLP. Macy’s is represented by Taft Stettinius & Hollister LLP.

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