Case: 1:21-cv-00135 Document #: 184 Filed: 10/05/21 Page 1 of 4 PageID #:3776
`Case MDL No. 2967 Document 95 Filed 10/05/21 Page 1 of 4
`Presiding: Judge Sharon Johnson Coleman
`Magistrate Judge: Maria Valdez
`Filed Date: 10/5/2021
`Case No: 1:21-cv-5286
`ph
`
`UNITED STATES JUDICIAL PANEL
`on
`MULTIDISTRICT LITIGATION
`
`IN RE: CLEARVIEW AI, INC.,
`CONSUMER PRIVACY LITIGATION
`
`MDL No. 2967
`
`TRANSFER ORDER
`
`Before the Panel: Plaintiffs in the action listed on Schedule A move under Panel Rule 7.1
`
`to vacate our order that conditionally transferred their action (Renderos) to the Northern District
`of Illinois for inclusion in MDL No. 2967. Defendant Clearview AI, Inc. (Clearview) and interim
`class counsel in MDL No. 2967 oppose the motion to vacate. Defendants Alameda County District
`Attorney, Alameda Police Department, El Segundo Police Department, and Antioch Police
`Department (the municipal defendants) did not respond to the motion to vacate.1
`
`After considering the argument of counsel, we find that this action involves common
`questions of fact with the actions transferred to MDL No. 2967, and that transfer under 28 U.S.C.
`§ 1407 will serve the convenience of the parties and witnesses and promote the just and efficient
`conduct of the litigation. The actions in MDL No. 2967 involve common factual questions arising
`from allegations that the Clearview defendants improperly collected, captured, obtained,
`distributed, and profited off of citizens’ biometric data. See In re Clearview AI, Inc., 509 F. Supp.
`3d 1368 (J.P.M.L. 2020).
`
`In opposing transfer, plaintiffs argue Renderos is outside the MDL’s scope because it
`includes individual claims against four municipal defendants, is focused on fear of police action
`chilling protected speech activities, does not seek class certification, and seeks injunctive relief.
`They also argue federal jurisdiction is lacking and transfer would cause plaintiffs inconvenience
`and prejudice. We do not find these arguments persuasive.
`
`While the Renderos complaint has an emphasis on law enforcement agencies and the
`
`chilling of plaintiffs’ constitutionally protected speech and protest activities, and it names as
`defendants municipal entities not currently included in the MDL, the Panel has held that “transfer
`does not require a complete identity of parties or factual issues when, as here, the actions arise
`from a common factual core.” In re Eliquis (Apixaban) Prods. Liab. Litig., MDL No. 2754, 2017
`WL 6569794, at *2 (J.P.M.L. May 30, 2017). Like the MDL No. 2967 plaintiffs, the Renderos
`plaintiffs allege that Clearview (1) “scrapes” individuals’ images from the internet, (2) uses
`
`See Panel Rule 7.1(d) (“Failure to respond to a CTO shall be treated as that party’s
`1
`acquiescence to it.”). The Alameda County District Attorney and Antioch Police Department
`initially opposed transfer but later withdrew their opposition.
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`

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`Case: 1:21-cv-00135 Document #: 184 Filed: 10/05/21 Page 2 of 4 PageID #:3777
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`artificial intelligence software to analyze the images and create faceprints, (3) created a
`searchable database allowing users to identify individuals by uploading a photograph, and (4)
`failed to obtain individuals’ consent to use their images. These common factual issues
`and the attendant overlapping discovery are likely to be complex, and coordination of this
`common discovery will provide efficiencies for the parties and the courts. Additionally,
`Renderos shares legal questions with the MDL No. 2967 actions. The MDL No. 2967
`consolidated complaint includes a California subclass and, like in Renderos, a claim under
`California’s Unfair Competition Law and other California law claims. The MDL No. 2967
`plaintiffs seek damages, but they also, like the Renderos plaintiffs, seek injunctive relief.
`
`Plaintiffs incorrectly argue that Clearview is the only defendant in MDL No. 2967. In fact,
`the MDL No. 2967 amended consolidated class action complaint names as a defendant Macy’s,
`Inc., as well as a defendant class comprised of similar private entities who obtained access to
`and used the Clearview database. This class by definition does not include the municipal
`defendants named in Renderos, but the question of Clearview database users’ liability already
`is at issue in the MDL No. 2967 actions. Plaintiffs argue that their action is unique because it
`is not a class action, but “[i]t is not unusual for individual claims to proceed in an MDL with
`class claims, as all parties can benefit from discovery regarding a common factual core.” In re
`Portfolio Recovery Assocs., LLC, Tel. Consumer Protection Act Litig., MDL No. 2295, ECF
`No. 55, at 1 (J.P.M.L. June 8, 2012).
`
`The Panel long has held that jurisdictional objections do not present an impediment to
`transfer, as plaintiffs can present pending remand motions to the transferee judge.2 See, e.g., In re
`Prudential Ins. Co. of Am. Sales Practices Litig., 170 F. Supp. 2d 1346, 1347-48 (J.P.M.L. 2001).
`This is so “even where, as here, plaintiffs assert that the removals were patently improper.
`‘Section 1407 does not empower the MDL Panel to decide questions going to the jurisdiction or
`the merits of a case, including issues relating to a motion to remand.’” In re Ford Motor
`Co. DPS6 PowerShift Transmission Prods. Liab. Litig., 289 F. Supp. 3d 1350, 1352 (J.P.M.L.
`2018) (quoting In re Ivy, 901 F.2d 7, 9 (2d Cir. 1990)).
`
`Plaintiffs also argue that transfer will be inconvenient and impose an undue hardship on
`them and the California based municipal defendants. In deciding transfer, the Panel “look[s] to
`the overall convenience of the parties and witnesses, not just those of a single plaintiff or
`defendant in isolation.” See In re Watson Fentanyl Patch Prods. Liab. Litig., 883 F. Supp. 2d
`1350, 1351-52 (J.P.M.L. 2012). Here, the overall interests of convenience and efficiency
`will be served by transferring Renderos, as the action shares significant factual questions
`with the actions in the MDL, and likely will benefit from the common discovery and the
`transferee judge’s expertise on the issues. Furthermore, none of the municipal defendants now
`object to transfer.
`
`Panel Rule 2.1(d) expressly provides that the pendency of a conditional transfer order does
`2
`not limit the pretrial jurisdiction of the court in which the subject action is pending. Between the
`date a remand motion is filed and the date that transfer of the action to the MDL is finalized, a
`court generally has adequate time to rule on a remand motion if it chooses to do so.
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`

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`IT IS THEREFORE ORDERED that the action listed on Schedule A is transferred to the
`Northern District of Illinois and, with the consent of that court, assigned to the Honorable
`Sharon Johnson Coleman for inclusion in the coordinated or consolidated pretrial proceedings.
` PANEL ON MULTIDISTRICT LITIGATION
`
` Karen K. Caldwell
`Chair
`
`Catherine D. Perry
`Matthew F. Kennelly
`Roger T. Benitez
`
`Nathaniel M. Gorton
`David C. Norton
`Dale A. Kimball
`
`

`

`Case: 1:21-cv-00135 Document #: 184 Filed: 10/05/21 Page 4 of 4 PageID #:3779
`Case MDL No. 2967 Document 95 Filed 10/05/21 Page 4 of 4
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`IN RE: CLEARVIEW AI, INC.,
`CONSUMER PRIVACY LITIGATION
`
`MDL No. 2967
`
`SCHEDULE A
`
`Northern District of California
`
`21-cv-5286
`
`RENDEROS, ET AL. v. CLEARVIEW AI, INC., ET AL., C.A. No. 3:21-04572
`
`