Case: 1:21-cv-00135 Document #: 143 Filed: 07/27/21 Page 1 of 5 PageID #:3232
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`In re: Clearview AI, Inc., Consumer Privacy
`Litigation
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`Case No: 1:21-cv-135
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`Judge Sharon Johnson Coleman
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`Magistrate Judge Maria Valdez
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`DEFENDANT MACY’S RETAIL HOLDINGS, INC.’S MOTION FOR
`A STAY OF DISCOVERY PENDING RESOLUTION OF ITS MOTION TO DISMISS
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`Defendant Macy’s Retail Holdings, Inc. (“Macy’s”), through its attorneys, respectfully
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`asks this Court to stay all discovery, including responses to interrogatories and document requests,
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`and Rule 26(a)(1) initial disclosures, pending resolution of Macy’s motion to dismiss, filed on June
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`28, 2021 (Dkts. 111, 112-1) (the “Motion”). In support thereof, Macy’s states as follows:
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`1.
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`This multi-district litigation (“MDL”) has focused almost exclusively on the actions
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`of Clearview and its principals (collectively “Clearview”). Plaintiffs only recently brought Macy’s
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`into the MDL, alleging novel theories of liability based solely upon Macy’s contract with
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`Clearview. On June 28, 2021, Macy’s moved to dismiss all of Plaintiffs’ claims against it, raising
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`dispositive standing and pleadings defenses under Federal Rules of Civil Procedure 12(b)(1) and
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`12(b)(6). The Motion is currently pending before this Court, and is scheduled to be fully briefed
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`by August 27, 2021
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`2.
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`Macy’s seeks a stay of all discovery to allow this Court to rule upon the Motion
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`and address whether Macy’s should be dismissed from this case, under recent binding case law
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`from the United States Supreme Court and the Seventh Circuit on important issues related to
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`Article III standing and pleading standards, including cases in the context of BIPA. Granting a
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`stay will allow this Court to hear Macy’s arguments, and it will protect Macy’s from unfair
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`Case: 1:21-cv-00135 Document #: 143 Filed: 07/27/21 Page 2 of 5 PageID #:3233
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`prejudice in being forced to expend significant resources to respond in discovery to specious
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`claims involving Macy’s stores across several states that no Plaintiff has ever visited.
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`3.
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`Courts have broad discretion to grant a stay of discovery pending a motion to
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`dismiss. Sadler v. Retail Props. Of Am., Inc., No. 12 C 5882, 2013 WL 12333447, at *1 (N.D. Ill.
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`Sept. 27, 2013). And, in determining whether to grant a stay, a court should consider whether a
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`stay will: (1) “unduly prejudice or tactically disadvantage the non-moving party”; (2) “simplify
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`the issues in question and streamline the trial”; and (3) “reduce the burden of litigation on the
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`parties and on the court.” Id. Macy’s easily meets all three factors here.
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`4.
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`As to the first prong, there is no risk of undue prejudice to Plaintiffs. Macy’s has
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`only been a formal participant in this litigation since June 7, 2021, when it was served with copies
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`of the complaints filed in the underlying cases.1 This is a far cry from the nearly eighteen months
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`of litigation that has taken place between Plaintiffs and Clearview in this MDL and the underlying
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`Mutnick v. Clearview litigation (20-cv-512), filed on June 22, 2020. Plaintiffs also cannot allege
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`any prejudice by the fact that Clearview already commenced discovery. As explained below,
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`Plaintiffs’ claims against Clearview are very different than those against Macy’s, and thus they
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`will require different discovery. And, this Court’s discovery order regarding Clearview was
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`entered (1) in anticipation of a preliminary injunction motion against Clearview, which was never
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`filed against Macy’s (Dkts. 26–28); and (2) never challenged by Clearview, let alone on the
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`1 This MDL commenced on January 8, 2021, consolidating year-old cases against
`Clearview. (Dkt. 1.) To date, and unlike Macy’s, Clearview has not contested Plaintiffs’ standing
`in the litigation. On March 24, 2021, and in the context of an anticipated preliminary injunction
`motion, this Court entered a discovery order, which did not cover Macy’s, because Macy’s was
`not yet a named defendant in the MDL. (Dkt. 28.) Plaintiffs named Macy’s as a defendant on
`April 9, 2021. (Dkt. 29.) Macy’s immediately asserted that Plaintiffs lacked subject matter
`jurisdiction without the existence of an underlying case (see Dkts. 56–57), which motivated
`Plaintiffs to file underlying cases against Macy’s on May 25, 2021, and serve Macy’s on June 7,
`2021 (Dkt. 99). Macy’s filed the Motion on June 28, 2021. (Dkt. 111.) Thus, less than sixty days
`have passed since Macy’s was properly served, and less than a month since Macy’s filed the
`Motion.
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`2
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`grounds that Plaintiffs lacked Article III standing under recent binding case law. Finally, the
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`briefing schedule for the Motion will be completed by August 27, 2021, and was set in this manner
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`to accommodate Plaintiffs’ lead counsel’s family vacation in early August. (See Dkt. 135.) Thus,
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`Plaintiffs cannot argue any prejudice where this Court will be in a position to rule on the Motion
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`by September 2021, resulting in only a very brief delay of discovery, to the extent such discovery
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`is even necessary.
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`5.
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`As to the second prong, a stay of discovery will simplify the issues before this
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`Court. The litigation in this complex MDL is focused almost exclusively on the actions of
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`Clearview, its related companies, and its executives — as evidenced by the fact that Macy’s was
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`not even mentioned in any of the contentious briefing on Plaintiffs’ request for injunctive relief,
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`or in the several amicus briefs that have been filed with the Court. Further, Plaintiffs have alleged
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`novel theories of liability against Macy’s under a web of Illinois, California and New York state
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`law, most of which have nothing to do with biometric information. Eliminating these claims will
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`not only simplify the issues in this case, but also potentially eliminate the need for discovery related
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`to Macy’s stores in states across the country. Put another way, Macy’s asks this Court to
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`determine, through its ruling on the Motion, what the parameters of any discovery are. The
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`implications of this Court’s ruling could eliminate irrelevant but highly burdensome discovery on
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`Macy’s national operations.
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`6.
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`Furthermore, a stay is particularly warranted here because the Motion raises
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`threshold problems with Plaintiffs’ standing that could dispose of the claims against Macy’s
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`entirely. See Bilal v. Wolf, No. 06 C 6978, 2007 WL 1687253, at *1 (N.D. Ill. June 6, 2007) (“Stays
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`of discovery are not disfavored and are often appropriate where the motion to dismiss can resolve
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`the case — at least as to the moving party …, or where the issue is a threshold one, such as
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`jurisdiction … [or] standing ….”); accord Liggins v. Reicks, 3:19-CV-50303, 2021 WL 2853359,
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`3
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`at *1 (N.D. Ill. July 8, 2021). Because Plaintiffs’ standing to pursue their claims against Macy’s
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`remains in doubt, focusing on Macy’s potentially dispositive motion is especially likely to
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`“substantially streamline the proceedings.” Sterigenics U.S., LLC v. Kim, No. 19 C 1219, 2019
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`WL 10449289, at *2 (N.D. Ill. Mar. 8, 2019).
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`7.
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`As Macy’s explains at length in its Motion, Plaintiffs lack Article III standing
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`because they cannot allege any injury in fact that is fairly traceable to Macy’s and that can be
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`redressed through a decision against Macy’s. Whereas Plaintiffs allege that Clearview violated
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`BIPA by collecting biometric information through photographs on the internet without informed
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`notice and written consent, and then compiling it into a database (the “Clearview Database”);
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`Plaintiffs claim that Macy’s is liable under BIPA and a variety of other state laws merely for
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`contracting with Clearview. However, Plaintiffs do not allege that any of them actually entered a
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`Macy’s store, let alone a particular location, nor do Plaintiffs allege that Macy’s took and submitted
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`their photograph to Clearview for analysis. (See Dkts. 111, 112-1 (summarizing Plaintiffs’ claims
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`against Macy’s).) Thus, even accepting as true Plaintiffs’ scant allegations against Macy’s,
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`Plaintiffs have not alleged that Macy’s caused them the kind of “concrete injury” Article III
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`requires. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2206 (2021).
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`8.
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`Moreover, because the Motion challenges Plaintiffs’ Article III standing,
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`adjudication of this Motion is potentially dispositive as to not only Macy’s, but also other third-
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`party companies that Plaintiffs allege Macy’s somehow represents as a “class defendant.”
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`The Motion highlights the fact that the Consolidated Complaint does not come close to alleging
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`plausible claims against Macy’s, as Iqbal-Twombly requires, let alone contain the requisite
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`allegations for the certification of a defendant class. See Adams v. City of Indianapolis, 742 F.3d
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`720, 728 (7th Cir. 2014) (“A claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`4
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`alleged.” (quoting Iqbal v. Ashcroft, 556 U.S. 662, 678 (2009))).
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`9.
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` The final prong — the burden of litigation on the parties and the Court — weighs
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`heavily in favor of Macy’s. If a stay is not granted, Macy’s will suffer significant prejudice by
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`having to produce documents related to its operations in several states, across several stores, and
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`related to claims for which Plaintiffs have not demonstrated Article III standing and that ultimately
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`should be dismissed. See Sadler, 2013 WL 12333447, at *1 (“Granting the stay will reduce the
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`burden on the parties until the Court rules on the motions to dismiss. . . .”). On the other hand,
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`Plaintiffs cannot plausibly assert that they will be prejudiced by a brief stay of any discovery while
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`this Court considers Macy’s potentially dispositive Motion.
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`10.
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`For these reasons, Macy’s asks this Court to grant a stay of discovery pending this
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`Court’s consideration of and ultimate ruling upon the Motion, and for any other relief that this
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`Court deems proper.
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`Dated: July 27, 2021
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`Respectfully submitted,
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`/s/ Daniel R. Saeedi
`Daniel R. Saeedi (ARDC #6296493)
`dsaeedi@taftlaw.com
`Rachael L. Schaller (ARDC #6306921)
`rschaller@taftlaw.com
`Andrew S. Murphy (ARDC #6328808)
`amurphy@taftlaw.com
`TAFT STETTINIUS & HOLLISTER LLP
`111 E. Wacker Drive, 28th Floor
`Chicago, IL 60601
`Telephone: (312) 527-4000
`Fax: (312) 754-2373
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`Attorneys for Defendant
`Macy’s Retail Holdings, Inc.
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`5
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