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Clearview AI seeks biometric privacy claim consolidation, new BIPA cases brought and defenses considered

Clearview AI seeks biometric privacy claim consolidation, new BIPA cases brought and defenses considered

Clearview AI is asking to have 11 biometric privacy class action suits combined with each other, and another suit by the Vermont Attorney General TJ Donovan and the ACLU, after federal judges in New York and Illinois have resisted venue changes, Law.com reports.

The company wants all of the suits, mostly brought under Illinois’ Biometric Information Privacy Act (BIPA), to be heard in New York, and have asked the Judicial Panel on Multidistrict Litigation (JPML) to intervene.

“Without centralization,” writes Clearview attorney Lee Wolosky of Jenner & Block in the motion, “Chief Judge McMahon and Judge Coleman would need to separately resolve the motions addressing identical factual and legal issues, which is a waste of judicial and party resources, and creates a significant risk of inconsistent rulings, especially given the novelties and complexities of data privacy law generally and facial-recognition technology in particular.”

Plaintiff’s lawyers in five of the actions in New York expressed support for the motion, based on a “growing number of non-Illinois residents pursuing non-Illinois state claims against Clearview.” Lawyers in five other actions cite progress in the Illinois process as a reason for keeping them there.

McMahon, the presiding judge in New York, ruled that plaintiff David Mutnick has no standing in New York, and suggested that his attorney is attempting to establish a position as lead council if the cases are consolidated. The hearings in both states have been stayed pending the multidistrict decision, which Law.com reports is first likely to be heard on December 3.

As Law Street reports, plaintiffs argued against the stay.

New claims filed

A motion to dismiss claims against the Par-A-Dice Hotel Casino under BIPA has been dismissed, as a U.S. District Judge ruled that the plaintiffs had met the conditions for standing, Reuters reports.

A new potential class-action claim has also been brought against supermarket chain Kroger by a former employee alleging the retailer failed to meet the informed consent requirements created by its use of biometric facial recognition, according to Law360. The publication also writes that Trump Hotel Chicago likewise is accused of failing to receive written permission from employees to operate a biometric time and attendance system, or provide a retention schedule for the data collected. Topgolf is facing a similar potential class-action for its biometric fingerprint time and attendance system, per Law Street. Whether that case should be heard in federal or state court is in dispute based on differences in standing between the jurisdictions, and how they would affect the potential damages involved.

Attorneys point out two possible defenses against biometric privacy claims

Momentum in BIPA cases has shifted towards defendants this year, Blank Rome attorneys write for Bloomberg Law, and the firm recommends that unionized employers build conditions to pre-empt claims around biometrics practices into their collective bargaining agreements.

A case brought against Sky Chefs is the latest to be dismissed based on a pre-emption challenge, at least the fourth one this year alone, demonstrating steps certain employers can take to protect themselves against BIPA claims.

A pair of attorneys from Patterson Belknap Webb & Tyler LLP write for JD Supra that the “fool me once” principle that applies to false advertising claims could also apply to biometric privacy claims under BIPA. The principle asserts that an injury based on disclosure rules cannot arise from interactions after the plaintiff has been made aware of the process the disclosure is required for.

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