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Clearview AI to face consolidated biometric data privacy suit in Illinois in partial victory

Busy year for BIPA clarifies litigation landscape

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Clearview AI is facing a multidistrict data privacy suit over its sale of biometric services in Illinois, after having its request to combine suits against it in that state and New York granted. The company had requested the case be heard in New York, however.

The Judicial Panel on Multidistrict Litigation approved the multidistrict litigation (MDL), saying it covers nine different suits, and possibly one more, a suit against Macy’s. Both Macy’s, which is the sole defendant in its case, and Clearview, agree that it should not be combined with the others.

“These actions share factual questions arising from allegations that the Clearview defendants improperly collected, captured, obtained, distributed, and profited off of citizens’ biometric data,” the panel wrote in its decision.

The case has been assigned to Judge Sharon Johnson Coleman of the Northern District of Illinois, who recently ruled that the case does not have standing in federal court.

The statute of limitations in BIPA will be clarified by a pair of upcoming decisions, causing U.S. District Judge Franklin Valderrama to order a stay in proceedings against Vivid Seats brought by a former employee, Law360 writes. A decision from the 7th Circuit could result in the case’s dismissal, or impact the class size.

Valderrama also rejected a motion from Vivid to dismiss the suit, though the motion can be refiled after the stay is lifted.

Honors and dubious distinctions

Judge Coleman had remanded an Illinois suit against Clearview to Cook County Circuit Court, which along with Madison and St. Clair counties has been declared the eighth worst “judicial hell-hole” in the country by the American Tort Reform Association, as Illinois Policy reports.

The Association puts the blame squarely on the state legislature, saying that the excessive litigation costs the state 100,000 jobs and nearly $10 billion, citing a study by the Perryman Group.

In addition to biometrics lawsuits, asbestos liability is identified as a top source of litigation.

As every year, the Illinois Trial Lawyers Association rejected the report as “a public relations stunt” bankrolled by big businesses to protect negligent behavior.

Edelson PC has been declared ‘Class Action Group of the Year 2020’ for its role in the Facebook settlement by Law360.

The company says an investigative approach to finding cases is behind its success, which also includes a $925 million jury verdict, and a $45 million settlement with DeVry University in a false advertising suit.

The Facebook settlement is also one of five BIPA cases that marked major developments during the year, according to another Law360 article.

“For a statute that’s been around for years, suddenly it’s everywhere. You don’t want to be caught unaware,” said Jeff Rosenthal, a Blank Rome LLP attorney who leads the firm’s biometric privacy team. “2020 was a really important year in this area of law.” Rosenthal’s associate in Blank Rome’s biometric privacy team David Oberly wrote about the impact of the Facebook settlement in a Biometric Update guest post earlier this year.

Other major cases include the 7th Circuit Appeals Court ruling in Bryant v. Compass that collecting biometric data from workers without their informed consent establishes standing in federal courts.

One claim in a suit under Illinois Biometric Information Privacy Act (BIPA) against Compass, meanwhile, has been dismissed without prejudice, according to Law360. The decision hardly counts as a win for the biometric vending machine company, as it is made in recognition of Compass’ failure to provide biometric data retention and destruction guidelines, as required by BIPA.

“One cannot fail to comply with guidelines that do not exist,” U.S. District Court Judge Virginia M. Kendall ruled.

Kendall rejected Compass’ other dismissal arguments, including that they are past their eligible time period, and that BIPA is “special legislation” prohibited by the state constitution.

A recent decision in Raven Fox et al. v. Dakkota Integrated Systems by the 7th Circuit Appeals Court clarified that the data retention schedule violation remanded back to state court in the Bryant case was a mere procedural violation, whereas the violation of the full range of 15(a) duties by Dakkota led to the data’s unlawful retention, according to that suite, giving the claim federal standing.

The rejection of the argument in McDonald v. Symphony Bronzeville Park LLC that workers’ compensation pre-empts BIPA was also among the top five impactful cases for the biometric data privacy statute, along with a pair of cases showing collective bargaining agreements can pre-empt BIPA.

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