Case: 1:21-cv-00135 Document #: 193 Filed: 10/20/21 Page 1 of 66 PageID #:3804
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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-00135
`Judge Sharon Johnson Coleman
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`Magistrate Judge Maria Valdez
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`MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS STEVEN RENDEROS,
`VALERIA THAIS SUÁREZ ROJAS, REYNA MALDONADO, LISA KNOX, MIJENTE
`SUPPORT COMMITTEE, AND NORCAL RESIST FUND’S MOTION TO REMAND
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`Plaintiffs Steven Renderos, Valeria Thais Suárez Rojas, Reyna Maldonado, Lisa Knox,
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`Mijente Support Committee (“Mijente”), and NorCal Resist Fund (“NorCal Resist”) (collectively
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`hereinafter, “Plaintiffs”) respectfully submit this memorandum in support of their Motion to
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`Remand this action to Alameda County Superior Court.
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`INTRODUCTION
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`Clearview’s attempt to assert diversity jurisdiction fails on its face. Plaintiffs include
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`individuals who are Alameda County residents and community-based organizations with
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`hundreds of California members. They brought this state-law action to enjoin the Alameda Police
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`Department and District Attorney, Antioch Police Department, El Segundo Police Department
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`(collectively hereinafter, “California Defendants”), and Clearview AI, Inc. (“Clearview”) from
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`deploying an illicit domestic surveillance database created by illegally acquiring, storing, and
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`exploiting the likenesses of millions of Californians. This software places all California residents
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`in a perpetual police lineup without their authorization, and subjects people of color to a
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`substantially higher danger of being misidentified by law enforcement. For these reasons, several
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`cities in Alameda County passed legislation banning Clearview’s facial recognition technology.
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`The Alameda Police Department and District Attorney continued to use it anyway. Plaintiffs’
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`claims arise under California common law, California statutes, and the California Constitution
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`and involve parties that do business, operate, and reside in California. Clearview’s removal of
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`this case from state court was improper and undertaken in bad faith to delay and obstruct the
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`prosecution of Plaintiffs’ claims.
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`Under longstanding law in both this Circuit and the Ninth Circuit, “any doubt” regarding
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`federal jurisdiction should be resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d
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`908, 911 (7th Cir. 1993); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Here, complete
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`diversity does not exist because citizens of California appear on both sides of the “v.”
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`Clearview’s Notice of Removal also fails to establish any other legitimate grounds for removing
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`this case to federal court:
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`First, Clearview argues that California Defendants—none of which consented to
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`removal—were fraudulently joined. This assertion is baseless. All of these entities have deployed
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`Clearview’s domestic surveillance technology and are accountable for aiding and abetting
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`Clearview’s unlawful activities under basic common law principles. Under the guise of
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`fraudulent joinder, Clearview seeks to litigate misguided state-law legal theories that should be
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`tested by demurrer in state court, especially since they involve arguably novel applications of
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`state law.
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`Second, Clearview ignores actual fraudulent joinder jurisprudence and, instead, curiously
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`attempts to apply the standard for permissible joinder articulated in 28 U.S.C. § 1447(e),
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`asserting that § 1447(e) provides the relevant test because Plaintiffs dismissed and re-filed their
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`lawsuit. This ill-conceived theory has never been applied by any court and directly contravenes
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`the plain text of § 1447(e).
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`Third, Clearview proposes that the efficient way to proceed would be to “sever”
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`Plaintiffs’ claims for aiding and abetting Clearview’s illegal conduct and litigate them in state
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`court in Clearview’s absence, while the claims against Clearview proceed in Illinois. This is
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`legally and practically untenable. Further, the doctrine of “procedural misjoinder” is not a ground
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`for removal, only fraudulent joinder is. See, e.g., J.T. Assocs., LLC v. Fairfield Dev., L.P., No.
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`15-CV-04913-BLF, 2016 WL 1252612, at *3 (N.D. Cal. Mar. 31, 2016). In any event, there is
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`no misjoinder here because it is routine and efficient to sue tortfeasors jointly with those who aid
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`and abet them.
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`Because the Notice of Removal does not come close to overcoming the “strong
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`presumption” against removal, this case should be remanded to Alameda County Superior Court.
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`FACTUAL BACKGROUND
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`A.
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`The Parties
`1.
`Plaintiffs
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`The four individual Plaintiffs are all activists who live in or have ties to Alameda County,
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`California. Steven Renderos is the Executive Director of the Center for Media Justice.
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`(Declaration of Ellen V. Leonida (“Leonida Decl.”), Ex. 1 (“Compl.”) ¶ 12.) Plaintiff Valeria
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`Thais Suárez Rojas has worked as an advocate for immigrants’ rights at the California Immigrant
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`Youth Justice Alliance. (Id. ¶ 13.) Plaintiff Lisa Knox is the Legal Director of the California
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`Collaborative for Immigrant Justice. (Id. ¶ 14.) And Plaintiff Reyna Maldonado is an immigrant,
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`business owner, and former immigrants’ rights community organizer. (Id. ¶ 15.)
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` Plaintiff NorCal Resist is a California organization that advocates for immigration
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`reform and immigrants’ rights. It has 7,000 members in Northern California. (Id. ¶ 16.) Plaintiff
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`Mijente is a corporation that organizes around surveillance issues in the immigrant community
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`and has more than 300 California members, including 50 members in Alameda County. (Id. ¶ 17)
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`2.
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`Defendants
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`Defendant Clearview is a Delaware corporation with its principal place of business in
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`New York, New York. Clearview is registered as a data broker in, and conducts business
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`throughout, California. (Compl. ¶¶ 19, 21.) Multiple people associated with Clearview, including
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`co-founder Hoan Ton-That, have longstanding ties to the alt-right, a far-right ideology espousing
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`the belief that white identity is under attack. (Id. ¶ 20.) People associated with Clearview have
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`expressed animosity toward immigrants and endorsed racism and violence. (Id.)
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`Defendants El Segundo and Antioch Police Departments have purchased licenses from
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`Clearview and have run searches on its database in California, targeting California residents. (Id.
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`¶¶ 21, 24-25.) Defendants Alameda County District Attorney and Alameda Police Department
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`have also run hundreds of searches on Clearview, despite the City of Alameda’s ban on facial
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`recognition technology. (Id. ¶¶ 22-23, 73.) Each time these agencies upload an image to
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`Clearview’s database to run a search, Clearview retains the images and corresponding biometric
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`information in its database for future searches. (Id. ¶¶ 37, 73.)
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`B.
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`Plaintiffs’ Claims
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`Clearview engages in the widespread collection of California residents’ images and
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`biometric information (including Plaintiffs’), without notice or consent, by illicitly scraping
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`images from websites and platforms owned and operated by California companies, such as
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`Facebook. (Compl. ¶ 21.) It continues to do so despite numerous cease and desist letters from
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`those companies. (Id. ¶ 32.) Clearview has promoted and sold licenses for its faceprint database
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`throughout the State, in part by offering trial uses to government entities (including California
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`Defendants). (Id. ¶¶ 21-25.)
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`Plaintiffs have posted pictures of themselves on social media and frequently express
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`views critical of police and ICE practices. (Id. ¶¶ 12-17.) As a result of Defendants’ unlawful
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`actions, Plaintiffs have suffered multiple injuries, including, at least: expenditure of resources to
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`understand the extent of Clearview’s misappropriation of their and their members’ identities,
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`images, likenesses, and biometric data; loss of their property rights in their own identities,
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`images, likenesses, and biometric data; mental anguish as a result of the invasions of their
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`privacy; and fear that they and their communities and families will be targeted for their political
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`speech, associations, affiliations, and/or immigration status. (Id. ¶ 70.) Further, when Plaintiffs
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`learned that the Alameda County District Attorney and Alameda City Police Department have
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`used Clearview in violation of Alameda’s ban on use of facial recognition technology, Plaintiffs
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`were distressed, anxious about their ability to speak out about social issues, and concerned about
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`their increased risk of being targeted, harassed, and surveilled as a result of their advocacy
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`efforts. (Declaration of Reyna Maldonado ¶¶ 6-7; Declaration of Lisa Knox ¶¶ 7-8.)
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`Plaintiffs bring three causes of action against Clearview: (1) common law appropriation
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`of likeness, for collecting, using, and selling Plaintiffs’ identities without their knowledge or
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`consent; (2) violation of Plaintiffs’ right to privacy under California Constitution art. 1, section 1;
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`and (3) unfair and unlawful business practices, in violation of California Business & Professions
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`Code §§ 17200 et seq. Plaintiffs bring two causes of action against California Defendants: (1)
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`aiding and abetting Clearview’s tortious conduct; and (2) violating the liberty of speech
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`guaranteed to Plaintiffs by Article I, section 2(a) of the California Constitution.
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`C.
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`Procedural History
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`Plaintiffs filed a lawsuit against Clearview in Alameda County Superior Court on March
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`9, 2021, alleging appropriation of Plaintiffs’ likenesses, violation of their rights to privacy, and
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`unlawful and unfair business practices. (See Renderos et al. v. Clearview AI, Inc. et al.,
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`RG21091138 (Alameda Sup. Ct.).) On April 6, 2021, a month after that lawsuit was filed,
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`BuzzFeed News published an investigative report revealing that California Defendants were
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`among over 1,800 public agencies that had run searches on Clearview. The article publicly
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`revealed for the first time that individuals employed by the City and County of Alameda
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`continued to use Clearview even after the City of Alameda had banned the use of facial
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`recognition. (See Renderos et al. v. Clearview AI, Inc. et al., Case No. 21-cv-04572 (N.D. Cal),
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`Dkt. No. 1-4, ¶ 10.)
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`Two days later, on April 8, 2021, Plaintiffs filed an amended complaint adding causes of
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`action against California Defendants based on the Buzzfeed News article that had been published
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`two days before. (Id. at ¶¶ 10, 73.) On April 8, 2021, the same day that Plaintiffs filed the
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`amended complaint, but before they were able to serve Defendants with the amended complaint,
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`Clearview filed a notice of removal—removing the case to the Northern District of California.
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`(Renderos et al. v. Clearview AI, Inc. et al., Case No. 4:21-cv-02567-DMR (N.D. Cal), Dkt. No.
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`1.) On April 13, 2021, Clearview filed a Notice of Potential Tag-Along with the United States
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`Judicial Panel on Multidistrict Litigation (“JPML”) to add the lawsuit to the consolidated
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`consumer class action against Clearview pending in this Court (the “MDL”). On April 15, 2021,
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`Plaintiffs dismissed that lawsuit without prejudice.
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`Plaintiffs filed their present lawsuit against Clearview and California Defendants in
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`Alameda County Superior Court on April 22, 2021. (See Compl., Renderos et al. v. Clearview
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`AI, Inc. et al., RG21096898 (Alameda Sup. Ct.).) Clearview filed the Notice of Removal on
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`June 14, 2021, removing the lawsuit to the Northern District of California. (Leonida Decl., Ex. 2
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`(“Notice”)). Clearview did this without contacting or obtaining the consent of California
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`Defendants. (Leonida Decl., Ex. 3). On June 16, 2021, Clearview again filed a Notice of
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`Potential Tag-Along Action. (MDL No. 2967, Dkt. No. 63.) Plaintiffs objected to the JPML’s
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`subsequent Conditional Transfer Order on several grounds, including Clearview’s improper
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`removal of Plaintiffs’ state-court action and Plaintiffs’ pending motion for remand in the
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`Northern District of California. (Id., Dkt. No. 86). On October 5, 2021, the JPML overruled
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`Plaintiffs’ objections, noting among other things that this Court could hear Plaintiffs’ remand
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`motion. (Dkt. No. 184 at 2.)
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`ARGUMENT
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`The well-pleaded complaint rule “makes the plaintiff the master of the claim; he or she
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`may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams,
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`482 U.S. 386, 392 (1987). Accordingly, there is a “strong presumption” against removal and in
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`favor of remand. Asperger v. Shop Vac Corporation, 524 F. Supp. 2d 1088, 1091 (S.D. Ill.
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`2007). “[A] case should be remanded if there is doubt as to the right of removal in the first
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`instance.” Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976); see also Doe,
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`985 F.2d at 911 (“Any doubt regarding jurisdiction should be resolved in favor of the states.”);
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`Zimmer as Tr. for Nelson v. Trinity Med. Ctr., Inc., No. 18-CV-2987, 2018 WL 11219941, at *1
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`(N.D. Ill. June 29, 2018) (Coleman, J.) (“Removal statutes . . . are to be construed narrowly and
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`against removal.”); PIRC, LLC v. Qorvis Commc’ns, LLC, No. 10-CV-08298, 2011 WL 245581,
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`at *1 (N.D. Ill. Jan. 25, 2011) (Coleman, J.) (noting that “doubts concerning removal are
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`resolved in favor of remand”); Majewski v. Dick’s Sporting Goods, Inc., No. 20-CV-6906, 2021
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`WL 76819, at *3 (N.D. Ill. Jan. 8, 2021) (Seeger, J.) (“‘[A] plaintiff’s choice of forum is
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`presumed valid, and the [c]ourt must resolve any doubts about jurisdiction in favor of remand.’ []
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`If in doubt, the case will go back to state court.”) (citations omitted).
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`I.
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`CALIFORNIA DEFENDANTS ARE NOT FRAUDULENTLY JOINED
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`Clearview’s argument that California Defendants were fraudulently joined is meritless.
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`(See Notice ¶¶ 21-26.) As the Seventh Circuit has explained, a “defendant faces a ‘heavy burden’
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`to demonstrate that the joinder is fraudulent.” Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d
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`752, 764 (7th Cir. 2009) (citation omitted); Majewski, 2021 WL 76819 at *3 (“The climb is
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`steep, and the burden is heavy.”). Fraudulent joinder is “difficult to establish” because “a
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`defendant must demonstrate that, ‘after resolving all issues of fact and law in favor of the
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`plaintiff, the plaintiff cannot establish a cause of action against the in-state defendant.’” Schur,
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`577 F.3d at 764 (citing Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992)); see also
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`Hauck v. ConocoPhillips Co., Civ. No. 06-135-GPM, 2006 WL 1596826, at *4 (S.D. Ill. 2006)
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`(defendant bears the burden of “affirmative proof of fraudulent joinder” that must be “clear and
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`convincing”) (citations omitted). “Framed a different way, the district court must ask whether
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`there is ‘any reasonable possibility’ that the plaintiff could prevail against the non-diverse
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`defendant.” Schur, 577 F.3d at 764 (citing Poulos, 959 F.2d at 73).
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`Clearview falls far short of meeting its heavy burden here. Clearview cannot prove that
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`there is no “reasonable possibility” that Plaintiffs could prevail on either their aiding and abetting
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`or constitutional claims against California Defendants, particularly because the claims involve
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`complex questions of state law. See id. (explaining that the court must look to state law to
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`determine whether the plaintiff has “any reasonable possibility” of success). On the contrary,
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`California Defendants are liable to Plaintiffs on multiple theories, including aiding and abetting
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`Clearview’s tortious conduct and violating Plaintiffs’ rights under the California Constitution.
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`A.
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`Clearview Cannot Prove that No State Court Could Find the California
`Defendants Liable for Aiding and Abetting Clearview’s Tortious Conduct
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`Clearview cannot meet its heavy burden of proving that California Defendants were
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`fraudulently joined. The Complaint alleges that Clearview engaged in tortious conduct through,
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`inter alia, its unauthorized access, use, and sale of Plaintiffs’ photographs and biometric data,
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`which infringes on Plaintiffs’ privacy interests and interests in control of their identities,
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`likenesses, and personal data, and violates their right to privacy under the California
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`Constitution. (See, e.g., Compl. ¶¶ 63-72). The Complaint further alleges that California
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`Defendants aided and abetted Clearview’s unlawful activities. (See, e.g., Compl. ¶¶ 73-75, 93-
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`95.)
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`While Clearview argues at length that the aiding and abetting claims against California
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`Defendants are not meritorious because Plaintiffs fail to state an underlying claim against
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`Clearview (See Notice ¶¶ 37-54), it points to no California decision in support of this assertion.
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`Moreover, Clearview’s argument invites the Court to conduct a more “searching” inquiry into
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`the merits of Plaintiffs’ claim than is permissible here. See Schur, 577 F.3d at 764. Clearview’s
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`voluminous arguments serve only to demonstrate that the issues in this case are novel, complex
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`questions of state law that should be adjudicated in state court. (See Notice ¶¶ 52-54
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`(acknowledging novel state-law questions).) Finally, Clearview is simply incorrect that Plaintiffs
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`have failed to state an underlying claim against Clearview.
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`Under California common law, the right against appropriation of likeness has four
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`elements: “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s
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`name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and
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`(4) resulting injury.” Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983) (citations
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`omitted). These elements are easily met here because Clearview has captured Plaintiffs’
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`identities and biometric information without Plaintiffs’ consent, and is selling its database to
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`others, including California Defendants, causing Plaintiffs’ economic loss and mental distress.
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`(Compl. ¶¶ 63-75.)
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`Because it is the home of the movie industry, California courts have applied common law
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`misappropriation of likeness claims broadly, and—contrary to Clearview’s assertion—have not
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`limited them to “merchandising” cases. (See Notice ¶¶ 41-43.) Rather, this cause of action
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`protects a person’s name and likeness against “appropriation, for the defendant’s advantage.”
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`Eastwood, 149 Cal. App. 3d at 416 (citations omitted). None of the cases relied upon by
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`Clearview is to the contrary. Timed Out, LLC v. Youabian, Inc., the sole state court case cited by
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`Clearview for this proposition, holds only that California’s right of privacy is assignable; while
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`that case involved “merchandising,” the court did not address, much less hold, that this common
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`law right is limited to merchandising cases. 229 Cal. App. 4th 1001, 1006-1008 (2014).
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`Clearview also misstates the holding of Maloney v. T3Media, 853 F.3d 1004 (9th Cir. 2017).
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`(See Notice ¶ 42.) Maloney held that the plaintiffs’ state-law claims were preempted by the
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`Copyright Act; it did not, as Clearview claims, hold that merchandising is the “core” of
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`California’s right of publicity.1 At best, Clearview’s merchandising argument demonstrates that
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`the reach of California’s misappropriation of likeness tort is unsettled and should thus be decided
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`by a California court.
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`Plaintiffs separately state a claim against Clearview for violating Plaintiffs’ privacy rights
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`under Article 1, § 1 of the California Constitution. A cause of action under the California
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`Constitution for invasion of privacy requires: “(1) the identification of a specific, legally
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`protected privacy interest,” (2) a reasonable expectation of privacy under the circumstances
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`presented, and (3) a “sufficiently serious” intrusion upon the privacy interest by the defendant.
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`Hill v. Nat’l Collegiate Athletic Assn., 7 Cal. 4th 1, 35-37 (1994). California has recognized two
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`broad categories of legally protected privacy interests: “(1) interests in precluding the
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`dissemination or misuse of sensitive and confidential information (‘informational privacy’); and
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`(2) interests in making intimate personal decisions or conducting personal activities without
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`observation, intrusion, or interference (‘autonomy privacy’).” Id. at 35.
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`Plaintiffs have a legally protected informational privacy interest in precluding Clearview
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`from permanently storing their sensitive information—such as their associations, participation in
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`protests, political advocacy, and critiques of law enforcement—in its database and disseminating
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`it to the police and prosecutors. Plaintiffs also have a reasonable expectation of privacy under
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`these circumstances. Clearview’s data harvesting violates the terms of use of many websites
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`from which it collects data. (Compl. ¶ 32.) Moreover, Clearview obtains and sells data captured
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`in private social media postings and in the background of photos taken by others. (Compl. ¶¶ 31,
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`39.)
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`1 The language quoted by Clearview from Maloney was actually attributable to Hilton v.
`Hallmark Cards, 599 F.3d 894, 910. See Maloney, 853 F.3d at 1010. Hilton also does not hold
`that merchandising is necessary for a misappropriation of likeness claim. 599 F.3d at 910.
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`Because Plaintiffs’ claims against Clearview are viable, so are Plaintiffs’ aiding and
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`abetting claims against California Defendants. Under California law, a party is liable for aiding
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`and abetting a tort if it “(a) knows the other’s conduct constitutes a breach of duty and gives
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`substantial assistance or encouragement to the other to so act or (b) gives substantial assistance
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`to the other in accomplishing a tortious result and the person’s own conduct, separately
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`considered, constitutes a breach of duty to the third person.” Casey v. U.S. Bank Nat. Assn., 127
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`Cal. App. 4th 1138, 1144 (2005) (citation and internal alterations omitted).
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`The City of Alameda banned law enforcement from using facial recognition technology,
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`including Clearview, in 2019. That same year, California instituted a moratorium on police use
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`of facial recognition technology in body cameras. The reasoning of the California Legislature
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`mirrors the concerns of the Plaintiffs in this case:
`- Facial recognition and other biometric surveillance technology
`pose unique and significant threats to the civil rights and civil
`liberties of residents and visitors.
`- The use of facial recognition and other biometric surveillance
`is the functional equivalent of requiring every person to show a
`personal photo identification card at all times in violation of
`recognized constitutional rights.
`- This technology also allows people to be tracked without
`consent. It would also generate massive databases about law-
`abiding Californians, and may chill the exercise of free speech
`in public places.
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`2019 California Assembly Bill No. 1215, California 2019-2020 Regular Session.
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`California Defendants can be held liable to Plaintiffs for aiding and abetting Clearview’s
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`tortious conduct, especially in light of the State of California and City of Alameda prohibitions
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`of facial recognition software. California Defendants provided substantial assistance to
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`Clearview’s tortious conduct by uploading photographs to Clearview’s database, subscribing to
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`Clearview, paying for Clearview, and promoting the use of Clearview by their employees.
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`(Compl. ¶¶ 10, 73-74, 93-95.) Because there is at least a “reasonable possibility” that a
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`California state court would find that a cause of action for aiding and abetting an intentional tort
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`exists against California Defendants, Clearview cannot meet the heavy burden of proving
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`fraudulent joinder. See Schur, 577 F.3d at 764.
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`B.
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`California Defendants Infringed on Plaintiffs’ Liberty of Speech
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`Clearview cannot meet its heavy burden of proving fraudulent joinder for the separate
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`and independent reason that it cannot show that there is no possibility that a state court would
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`hold the California Defendants liable for infringement of Plaintiffs’ liberty of speech. Article I,
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`section 2(a) of the California Constitution provides: “Every person may freely speak, write and
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`publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law
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`may not restrain or abridge liberty of speech or press.” “In the domain of these indispensable
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`liberties, whether of speech, press, or association, the decisions of [the California Supreme]
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`Court recognize that abridgement of such rights, even though unintended, may inevitably follow
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`from varied forms of governmental action.” White v. Davis, 13 Cal. 3d 757, 767 (1975) (quoting
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`NAACP v. Alabama 357 U.S. 449, 461 (1958)). “Freedoms such as these are protected not only
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`against heavy-handed frontal attack, but also from being stifled by more subtle governmental
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`interference.” Id. at 767 (quoting Healy v. James, 408 U.S. 169, 183 (1972)). California
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`Defendants violated and continue to violate these rights because “covert police surveillance and
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`intelligence gathering may potentially impose a significant inhibiting effect on the free
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`expression of ideas.” Id. at 768.
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`Clearview’s arguments that Plaintiffs cannot state a claim for violating Article 1, section
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`2(a) are incorrect. It first argues that there is no private right of action for damages without
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`compliance with the California Tort Claims Act (“CTCA”). (Notice ¶ 39.) The CTCA does not
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`apply where, as here, Plaintiffs seek injunctive relief, not money damages. Harris v. State Pers.
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`Bd., 170 Cal. App. 3d 639, 643 (1985), disapproved of on other grounds by Coleman v. Dep’t of
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`Pers. Admin., 52 Cal. 3d 1102 (1991).
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`Clearview further argues that Plaintiffs’ claim for injunctive relief is not viable because
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`Plaintiffs fail to allege that California Defendants “literally restrain or abridge” their free speech.
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`Case: 1:21-cv-00135 Document #: 193 Filed: 10/20/21 Page 13 of 66 PageID #:3816
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`(Notice at ¶ 56.) A violation of section 2(a) does not, however, require a “literal” restraint on
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`speech. See, e.g., White, 13 Cal. 3d at 772 (stating that police surveillance activity is likely to
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`chill speech under both federal and state constitutions). Moreover, Clearview’s argument relies
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`on a misinterpretation of McAllister v. Los Angeles Unified School Dist., 216 Cal. App. 4th 1198,
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`1217. The Court of Appeal in McAllister merely held that a violation of section 2(a) did not
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`warrant reinstatement of a government employee. Id. (“The Constitution, section 2(a) cannot be
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`read to support a cause of action for injunctive relief where an individual is seeking to be rehired
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`by her employer. Without specific precedent that the Constitution, section 2(a) supports a cause
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`of action for such an employment-related injunction, we decline to create authority for such an
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`action.”). McAllister’s holding is thus inapposite here because Plaintiffs seek an injunction
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`outside of the employment context.
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`In contrast, the California Supreme Court has expressly recognized the “potentially grave
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`threat to freedom of expression” and “a substantial probability that . . . alleged covert police
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`surveillance [would] chill the exercise of” freedom of speech. White, 13 Cal. 3d at 761.
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`Clearview’s actions here—i.e., selling Plaintiffs’ biometric information to law enforcement
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`agencies who may use it to identify and locate them, their families, and others with whom they
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`associate—have a significant and unconstitutional chilling effect on Plaintiffs’ liberties of speech
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`and association that the California Constitution protects.
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`C.
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`California Defendants Did Not Assent to Removal
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` Clearview’s Notice is also defective because it does not represent that all (or any)
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`California Defendants consented to removal, and in at least one case, Clearview even failed to
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`provide notice of its intent to remove. (Leonida Decl., Ex. 3.) It is well established that in a case
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`involving multiple defendants, “it may not be removed unless all the defendants consent to
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`removal.” Denton v. Universal Am-Can, Ltd., No. 12 C 3150, 2012 WL 3779315, at *2 (N.D. Ill.
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`Aug. 30, 2012); see also 28 U.S.C § 1446(b)(2)(A) (when a case is removed under section
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`1441(a), “all defendants who have been properly joined and served must join in or consent to the
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`removal of the action”) (emphasis added). To the extent Clearview contends that its misguided
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`fraudulent joinder argument relieved it of complying with this requirement, this argument fails.
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`As discussed above, no California Defendants are, in fact, fraudulently joined; Clearview’s
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`failure to obtain the consent of California Defendants provides a separate and independent reason
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`why removal was improper here.
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`D.
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`The Standard for Fraudulent Joinder, Not 28 U.S.C. § 1447(e), Applies Here
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`Because Clearview cannot satisfy the removal standards under longstanding law in both
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`this Circuit and the Ninth Circuit, it argues that 28 U.S.C. § 1447(e) provides the relevant
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`standard for analysis of joinder under the ill-conceived theory that the Complaint is
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`“constructively an amendment.” (Notice ¶¶ 12, 23.) Clearview cites no case that has applied such
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`a theory, which is plainly contrary to the statute upon which Clearview relies.
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`Section 1447(e) provides that “[i]f after removal the plaintiff seeks to join additional
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`defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder,
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`or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e) (emphasis
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`added). Section 1447(e) is plainly inapplicable here because Plaintiffs do not seek to join any
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`additional defendants to this case; the Complaint already includes claims against four California
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`Defendants. (See Compl.)
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`The two primary cases cited by Clearview lend no support to its argument. (See Notice
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`¶¶ 23-24.) Tellingly, the court in Welk v. GMAC did not apply § 1447(e) in its analysis of
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`whether the plaintiffs’ addition of a non-diverse defendant defeated diversity jurisdiction; it
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`applied the fraudulent joinder doctrine. See 850 F. Supp. 2d 976, 995 (D. Minn. 2012) (“The
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`joinder of a nondiverse defendant is not fraudulent where ‘there is arguably a reasonable basis
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`for predicting that the state law might impose liability based upon the facts involved.’”) (citation
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`omitted). Likewise, Greer v. Lockheed Martin did not involve a motion to remand, but a
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`plaintiff’s motion to amend the complaint after the case had already been removed to federal
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`court. See No. CV 10-1704 JF HRL, 2010 WL 3168408, at *1 (N.D. Cal. Aug. 10, 2010). In
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`sum, Clearview’s own authorities demonstrate the inapplicability of § 1447(e) here.
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`II.
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`“PROCEDURAL MISJOINDER” PROVIDES NO BASIS FOR REMOVAL
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`Clearview’s argument that California Defendants were “procedurally misjoined” and that
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`this provides a basis for removal (Notice ¶¶ 63-66) is incorrect for at least two reasons. First, this
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`doctrine does not apply in the context of removal. Second, even if it did apply, no parties have
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`been misjoined here.
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`As a threshold matter, only the doctrine of fraudulent joinder—rather than “procedural
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`misjoinder” or “fraudulent misjoinder”—can provide an exception to the diversity requirement.
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`Reeves v. Pfizer, Inc., 880 F. Supp. 2d 926, 927 (S.D. Ill. 2012) (discussing the difference
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`between fraudulent joinder and “fraudulent