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Appeals court will not reconsider sending biometric privacy suit against Clearview AI back to state court

Plaintiff free to pursue argument with no federal standing

biometric facial recognition

The Seventh Circuit Appeals Court has declined to revisit a motion by Clearview AI to remand a biometric privacy suit against it, Law360 reports, rejecting the argument that consistency with previous interpretations of precedence on standing requires recognizing that concrete harms are entailed by the statutory violations the company is accused of.

The company made the request after the appeals court ruled that the plaintiffs are free to tailor their claims under Illinois’ Biometric Information Privacy Act (BIPA) to pursue a claim of a specific violation without addressing other sections of the Act.

The same three judges who made up the panel that ruled the course could be remanded to state court ruled on the re-argument request, with no other judge seeking a vote on the matter.

Clearview argues the decision conflicts with BIPA precedent and risks exacerbating inconsistent treatment of standing under Article III in different jurisdictions. Courts have previously found that where an alleged statutory violation inherently entails a concrete harm, plaintiffs have federal standing, according to the company’s lawyers.

The panel said in its initial ruling that federal standing is heavily dependent on the allegations of the specific case, referring to Fox v. Dakkota Integrated Systems LLC and Bryant v. Compass as providing clarity. Concurring with that ruling, Circuit Judge David Hamilton wrote that a review of the BIPA precedence does not show a predictable rule for determining plaintiffs’ standing in federal court.

How to deal with backwards standing arguments

The legal practice of plaintiffs not including claims that would establish standing in federal court is examined in a separate Law360 article.

The Seventh Circuit’s January ruling that Clearview appealed explicitly noted the unusual roles, with the plaintiff claiming no standing and the defendant arguing for her right to sue in federal court.

Clearview had successfully removed the suit to federal court under the Class Action Fairness Act, but the case was remanded for the lack of Article III standing rendering CAFA inapplicable.

The move is part of a trend which shows no sign of slowing, the authors write.

Plaintiffs in the case defined their proposed class as people “who suffered no injury” beyond statutory harms, and the Seventh Circuit ruled that if they are in good faith, plaintiffs are free to tailor their claims.

One approach defendants can take is to avoid standing as a threshold issue, and bring it forward during class certification, the article suggests. The case can be kept in federal court if any named plaintiff has standing, and because the same injury is required to be part of a class, attempts to remove it could block class certification. Federal courts are divided on the requirements of standing for absent class members.

Defendants can also argue that the plaintiffs claims grant standing, without admitting the harm actually occurred, which has been successful in biometric privacy case Miller v. Southwest Airlines Co., and a similar argument was used in Patel v. Facebook Inc.

They can also argue that if plaintiffs are allowed to deny standing and avoid a judgement on merits, they could be granted “an effectively limitless exception,” the Dechert LLP attorneys who penned the analysis write.

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