Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 1 of 12 PageID #:5730
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
`
`
`
`)
`
`
`
`
`
`In re Clearview AI, Inc., Consumer Privacy
`)
`Litigation,
`
`
`
`
`)
`
`
`
`
`
`
`)
`)
`)
`
`Case No. 21-cv-135
`
`Judge Sharon Johnson Coleman
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`Plaintiffs brought a first amended consolidated class action complaint in this multi-district
`
`litigation that alleges claims against defendant retailer Macy’s Retail Holdings, LLC (“Macy’s”) under
`
`the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”), along with claims
`
`under California and New York law. Before the Court is Macy’s motion to dismiss brought
`
`pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the
`
`Court grants in part and denies in part Macy’s motion. Specifically, the Court grants Macy’s motion
`
`as to Count Ten, which alleges a claim under California’s Unfair Competition Law, as well as
`
`plaintiffs’ unjust enrichment claim based on New York common law in Count Fifteen. The Court
`
`denies the remainder of Macy’s motion.
`
`Background
`
`
`The Court presumes familiarity with its prior rulings in this multi-district litigation. In their
`
`complaint, plaintiffs contend that the Clearview defendants covertly scraped billions of photographs
`
`of facial images from the internet and then used artificial intelligence algorithms to scan the face
`
`geometry of each individual depicted in the photographs to harvest the individuals’ unique biometric
`
`identifiers and corresponding biometric information. Plaintiffs further assert that the Clearview
`
`defendants created a searchable database containing their biometrics that allowed users to identify
`
`unknown individuals merely by uploading a photograph to the database. The database can be
`
`searched remotely by licensed users of the Clearview web application.
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 2 of 12 PageID #:5731
`
`Defendant Macy’s is a private corporation that purchased access to the Clearview database
`
`and the biometrics contained therein to identify people whose images appeared in surveillance
`
`camera footage from Macy’s retail stores. Plaintiffs assert that Macy’s utilized Clearview’s database
`
`over 6,000 times, each time uploading an image to the database to search for a match. Furthermore,
`
`plaintiffs contend that Macy’s is similarly situated to other database users which comprise the
`
`Clearview Client class:
`
`All non-governmental, private entities – including publicly-traded companies – who
`purchased access to, or otherwise obtained, the Biometric Database and then utilized
`the database to run biometric searches at a time when the Biometrics of one or more
`of the named Plaintiffs had already been captured, collected or obtained, and
`subsequently stored, by the Clearview Defendants.
`
`In their complaint, plaintiffs bring a BIPA claim against Macy’s under 740 ILCS 14/15(b),
`
`
`
`which prohibits private entities from collecting, capturing, purchasing, receiving through trade, or
`
`otherwise obtaining a person’s biometric identifiers or information without first providing notice
`
`and consent. Similarly, plaintiffs bring a BIPA claim under 740 ILCS 14/15(c), which prohibits
`
`private entities from selling, leasing, trading, or profiting from a person’s biometric identifiers or
`
`information. Plaintiffs also bring statutory and common law claims against Macy’s under California
`
`and New York law.
`
`Legal Standards
`
`A Rule 12(b)(1) motion challenges federal jurisdiction, and the party invoking jurisdiction
`
`bears the burden of establishing the elements necessary for subject matter jurisdiction, including
`
`standing. Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1244 (7th Cir. 2021); International Union of
`
`Operating Eng’rs v. Daley, 983 F.3d 287, 294 (7th Cir. 2020). Under Rule 12(b)(1), the Court accepts
`
`the well-pleaded factual allegations as true and construes all reasonable inferences in the plaintiff’s
`
`favor when a defendant has facially attacked standing. Prairie Rivers Network v. Dynegy Midwest
`
`Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021).
`
`
`
`2
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 3 of 12 PageID #:5732
`
`A motion to dismiss brought pursuant to Rule 12(b)(6) for failure to state a claim tests the
`
`sufficiency of the complaint, not its merits. Skinner v. Switzer, 562 U.S. 521, 529, 131 S.Ct. 1289, 179
`
`L.Ed.2d 233 (2011). When considering dismissal of a complaint, the Court accepts all well-pleaded
`
`factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Erickson v.
`
`Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). To survive a motion
`
`to dismiss, plaintiff must “state a claim for relief that is plausible on its face.” Bell Atlantic Corp. v.
`
`Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint is facially plausible
`
`when the plaintiff alleges enough “factual content that allows the court to draw the reasonable
`
`inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
`
`129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
`
`Discussion
`
`Article III Standing
`
`Macy’s first argues that the Court does not have subject matter jurisdiction by challenging
`
`plaintiffs’ Article III standing to bring their BIPA 15(b) and 15(c) claims as alleged in Counts One
`
`and Three of the first amended consolidated class action complaint. “Article III of the Constitution
`
`limits the federal judicial power to deciding ‘Cases’ and ‘Controversies’” and “as an essential part of
`
`a federal court’s authority under Article III, [the] standing doctrine ensures respect for these
`
`jurisdictional bounds.” Prairie Rivers Network, 2 F.4th at 1007. To establish standing under Article
`
`III, a plaintiff must show: (1) he suffered an injury-in-fact; (2) that is fairly traceable to defendant’s
`
`conduct; and (3) that is likely to be redressed by a favorable judicial decision. Protect Our Parks, Inc. v.
`
`Chicago Park Dist., 971 F.3d 722, 729 (7th Cir. 2020) (Barrett, J.).
`
`In its motion, Macy’s contends that plaintiffs cannot establish Article III standing because
`
`they have failed to sufficiently allege a concrete and particularized injury-in-fact. To determine
`
`whether the disclosure of plaintiffs’ private information without their consent caused a sufficiently
`
`
`
`3
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 4 of 12 PageID #:5733
`
`concrete harm to support standing, the Court looks to both history and the judgment of Congress
`
`for guidance. Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett, J.). The
`
`historical inquiry asks, “whether the asserted harm has a ‘close relationship’ to a harm traditionally
`
`recognized as providing a basis for a lawsuit in American courts—such as physical harm, monetary
`
`harm, or various intangible harms.” TransUnion, LLC v. Ramirez, 141 S.Ct. 2190, 2200 (2021). As the
`
`TransUnion Court explained, “[v]arious intangible harms can also be concrete” including
`
`“reputational harms, disclosure of private information, and intrusion upon seclusion.” Id. at 2204.
`
`Here, plaintiffs have sufficiently alleged that defendant’s use of their private information
`
`without the opportunity to give their consent as required under BIPA 15(b) caused them the
`
`concrete harm of violating their privacy interests in their biometric data. See Bryant v. Compass Group
`
`USA, Inc., 958 F.3d 617, 627 (7th Cir. 2020) (defendants “inflicted the concrete injury BIPA
`
`intended to protect against, i.e. a consumer’s loss of the power and ability to make informed
`
`decisions about the collection, storage, and use of her biometric information.”). Therefore, plaintiffs
`
`have sufficiently alleged a concrete injury-in-fact for Article III standing purposes.
`
`Likewise, plaintiffs have sufficiently stated a concrete injury-in-fact under BIPA 15(c) by
`
`alleging that Macy’s profited from using the Clearview database to prevent losses and improve
`
`customer experience, and, that as a result of Macy’s use, plaintiffs’ biometric information was
`
`compromised. Contrary to Macy’s argument that it merely uploaded photographs onto the
`
`Clearview database, plaintiffs allege that Macy’s purchased, obtained, accessed, and used the
`
`biometrics in the database and profited from that conduct. Meanwhile, Macy’s reliance on the
`
`Seventh Circuit’s decision in Thornley is misplaced because in that matter, the plaintiffs purposely
`
`avoided federal court jurisdiction by bringing bare BIPA 15(c) claims alleging that they were not
`
`injured as a result of any BIPA violations. See Thornley, 984 F.3d at 1246; Thornley v. Clearview AI, Inc.,
`
`No. 20-cv-3843, 2020 WL 6262356, at *2 (N.D. Ill. Oct. 23, 2020) (Coleman, J.) (“Plaintiffs
`
`
`
`4
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 5 of 12 PageID #:5734
`
`purposely narrowed their claim to the general prohibition of Clearview selling and profiting from
`
`plaintiffs’ biometric data and filed their lawsuit in state court where such actions are allowed without
`
`the constraints of Article III standing.”); see also Rosenbach v. Six Flags Enter. Corp., 129 N.E.3d 1197,
`
`1207, 432 Ill.Dec. 654, 664 (Ill. 2019) (“an individual need not allege some actual injury or adverse
`
`effect, beyond violation of his or her rights under the Act, in order to qualify as an ‘aggrieved’
`
`person.”). Such is not the case here.
`
`The Court turns to the other factors of Article III standing, namely, that the injuries alleged
`
`are fairly traceable to Macy’s conduct and that the injuries are likely to be redressed by a favorable
`
`judicial decision. In its motion, Macy’s argues that the relief plaintiffs seek has no bearing on their
`
`need to protect their biometric information because Macy’s does not “possess” this information.
`
`Viewing the allegations in plaintiffs’ favor, they have alleged that Macy’s has done more than merely
`
`possess their photos, including that Macy’s used the Clearview database to obtain the biometrics of
`
`millions of Illinois residents for comparing the data against the photographs Macy’s uploaded. With
`
`these allegations in mind, Macy’s cannot point the finger at the Clearview defendants and then
`
`ignore its own conduct in using the Clearview database. Moreover, “the prospect of statutory
`
`damages shows that such an injury is redressable.” Bryant, 958 F.3d at 621. Macy’s Article III
`
`standing argument fails.
`
`Rule 12(b)(6) Challenges to BIPA Claims
`
`
`Macy’s challenges plaintiffs’ BIPA claims under Rule 12(b)(6) arguing plaintiffs have failed to
`
`adequately allege these claims under the federal pleading standards per Iqbal and Twombly. First,
`
`Macy’s argues plaintiffs have failed to sufficiently allege their BIPA 15(b) claim because they do not
`
`allege the who, what, where, when, or how of this claim. From Macy’s argument, it appears Macy’s
`
`is arguing that plaintiffs must fulfill the heightened pleading standard under Rule 9(b), see Mamalakis
`
`v. Anesthetix Mgmt. LLC, 20 F.4th 295, 301 (7th Cir. 2021), which is simply not the case. Meanwhile,
`
`
`
`5
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 6 of 12 PageID #:5735
`
`the basis of plaintiffs’ BIPA 15(b) claim is that Macy’s accessed and obtained plaintiffs’ biometric
`
`information without plaintiffs’ knowledge and consent each time Macy’s sought to identify an
`
`individual by uploading photos to the Clearview database. In other words, Macy’s actively
`
`purchased access to obtain plaintiffs’ biometrics without complying with BIPA 15(b)’s notice and
`
`consent requirements. Cothron v. White Castle Sys., Inc., 20 F.4th 1156, 1159 (7th Cir. 2021)
`
`(“Section 15(b) provides that a private entity may not ‘collect, capture, purchase, receive through
`
`trade, or otherwise obtain’ a person’s biometric data without first providing notice to and
`
`receiving consent from the person.”). Thus, plaintiffs have plausibly alleged their BIPA 15(b)
`
`violation against Macy’s.
`
`Macy’s also takes issue with plaintiffs’ BIPA 15(c) allegations arguing that plaintiffs have not
`
`alleged Macy’s possessed their biometric information and that plaintiffs did not provide sufficient
`
`factual details that Macy’s profited from this information. Despite these arguments, plaintiffs have
`
`adequately alleged that Macy’s obtained access to their biometric information and searched the
`
`Clearview database resulting in Macy’s obtaining, accessing, and using the biometrics in the database.
`
`Plaintiffs also allege that Macy’s used this information for their own business purposes and profited
`
`from its use. From plaintiffs’ allegations, it is reasonable to infer that plaintiffs’ biometric
`
`information was necessary to Macy’s loss prevention business model and that this biometric
`
`information generated profits by reducing the number of stolen goods. Accordingly, plaintiffs’ have
`
`plausibly alleged their BIPA 15(c) claim against Macy’s.
`
`California State Law Claims
`
`
`
`In Counts Ten through Thirteen, plaintiff Andrea Vestrand, on behalf of herself and others
`
`similarly situated in the California Subclass, brings claims under California statutory and common
`
`law. In Count Ten, Vestrand alleges that Macy’s violated California’s Unfair Competition Law
`
`(“UCL”). To bring a claim under the UCL, a plaintiff must “(1) establish a loss or deprivation of
`
`
`
`6
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 7 of 12 PageID #:5736
`
`money or property sufficient to quantify as injury in fact, i.e., economic injury, and (2) show that the
`
`economic injury was the result of, i.e., caused by, the unfair business practice.” Kwikset Corp. v. Superior
`
`Court, 51 Cal. 4th 310, 322, 120 Cal.Rptr.3d 741, 246 P.3d 877 (Cal. 2011) (emphasis in original).
`
`Macy’s maintains that plaintiffs’ UCL claim necessarily fails because personal information is
`
`not “property” for purposes of the UCL. See In re Facebook Privacy Litig., 791 F.Supp.2d 705, 714
`
`(N.D. Cal. 2011). The Court agrees. Indeed, “[n]umerous courts have held that disclosure of
`
`personal information alone does not constitute economic or property loss sufficient to
`
`establish UCL standing, unless the plaintiff provides specific allegations regarding the value of the
`
`information.” Mastel v. Miniclip SA, ___ F.Supp.3d ___, 2021 WL 2983198, at *11 (E.D. Cal. 2021).
`
`Moreover, Macy’s contends plaintiffs’ UCL claim does not survive the present motion to
`
`dismiss because plaintiffs have failed to plausibly allege an unfair business practice for purposes of
`
`the UCL. The UCL “governs ‘anti-competitive business practices’ as well as injuries to consumers,
`
`and has as a major purpose ‘the preservation of fair business competition.’” Chu v. Old Republic Home
`
`Protection Co., Inc., 274 Cal.Rptr.3d 528, 536, 60 Cal.App.5th 346, 357 (Cal. 2021). In short, the
`
`“UCL’s purpose is to protect both consumers and competitors by promoting fair competition in
`
`commercial markets for goods and services.” Erhart v. BofI Holding, Inc., 387 F.Supp.3d 1046, 1059
`
`(S.D. Cal. 2019) (citation omitted). Plaintiffs’ allegations do not involve the protection of fair
`
`competition in commercial markets, therefore, the Court dismisses plaintiffs’ UCL claim without
`
`leave to amend because any such amendment would be futile.
`
`In Count Eleven, Vestrand alleges a commercial misappropriation of likeness claim against
`
`Macy’s under California Civil Code § 3344(a), as well as a common law right to publicity claim in
`
`Count Twelve. The Court analyzes Counts Eleven and Twelve together because to state a claim
`
`under § 3344(a), a plaintiff must first fulfill the elements of the common law right to publicity. See
`
`Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001); Cross v. Facebook, Inc., 222
`
`
`
`7
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 8 of 12 PageID #:5737
`
`Cal.Rptr.3d 250, 265, 14 Cal.App.5th 190, 208 (Cal. 2017) (“Civil Code section 3344 was intended to
`
`complement, not supplant, common law claims for right of publicity.”).
`
`The California common law “right of publicity seeks to prevent commercial exploitation of
`
`an individual’s identity without that person’s consent.” Maloney v. T3Media, Inc., 853 F.3d 1004, 1010
`
`(9th Cir. 2017). The elements of a common law right to privacy claim include: (1) defendant’s
`
`unauthorized use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to
`
`defendant’s advantage, commercial or otherwise; and (3) the resulting injury. Downing, 265 F.3d at
`
`1001; Ross v. Roberts, 166 Cal.Rptr.3d 359, 365, 222 Cal.App.4th 677, 684 (Cal. 2013).
`
`Macy’s contends that Vestrand’s common law claim must fail because she did not allege she
`
`has a commercial interest or value in her likeness. Vestrand, however, is not required to plead facts
`
`corresponding to each legal element of her claim to survive a motion to dismiss, but instead, need
`
`only allege a plausible claim. Chapman v. Yellow Cab Cooperative, 875 F.3d 846, 848 (7th Cir. 2017).
`
`Vestrand has done so by alleging that Macy’s used her photographs and likeness without
`
`authorization for commercial gain via Macy’s loss prevention business model. Further, Vestrand
`
`alleges the California Subclass was injured because Macy’s did not compensate them for its use of
`
`their likenesses, identifies, and photographs. These allegations plausibly state a common law right to
`
`publicity claim under California law.
`
`Next, under California’s statutory remedy, § 3344, plaintiffs must also show “a knowing use
`
`by the defendant as well as a direct connection between the alleged use and the commercial
`
`purpose.” Downing, 265 F.3d at 1001. In its motion, Macy’s maintains that § 3344 requires plaintiffs
`
`to allege that its use of the Clearview database was for purposes of advertising, selling, or soliciting.
`
`Macy’s, however, ignores parts of § 3344(a), which states, “[a]ny person who knowingly uses
`
`another’s name, voice, signature, photograph, or likeness in any manner, on or in products,
`
`merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products,
`
`
`
`8
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 9 of 12 PageID #:5738
`
`merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the
`
`prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person
`
`or persons injured as a result thereof.” (emphasis added). Therefore, under § 3344, plaintiffs need
`
`not allege that Macy’s used their photos or likenesses for purposes of advertising, selling, or
`
`soliciting. And, as discussed, plaintiffs have adequately alleged that Macy’s knowingly used their
`
`photos by accessing the Clearview database to achieve Macy’s loss prevention goals. The Court
`
`denies Macy’s motion to dismiss Counts Eleven and Twelve.
`
`In Count Thirteen, Vestrand alleges that Macy’s violated her right to privacy under the
`
`California Constitution. To establish a claim for invasion of privacy under the California
`
`Constitution, a plaintiff must eventually show (1) she possesses a legally protected privacy interest,
`
`(2) she maintains a reasonable expectation of privacy, and (3) defendant’s conduct constituted a
`
`serious invasion of privacy. Hill v. National Collegiate Athletic Assn., 865 P.2d 633, 654-55, 26
`
`Cal.Rptr.2d 834, 7 Cal.4th 1 (Cal. 1994). Here, Macy’s asserts plaintiffs failed to adequately allege
`
`that Vestrand possessed a legally protected privacy interest. The California Constitution protects
`
`two separate classes of privacy interests: (1) information privacy, which includes interests in
`
`precluding the dissemination or misuse of confidential and sensitive information; and (2) autonomy
`
`privacy, including interests in making personal decisions or conducting personal activities without
`
`intrusion. In re Google Location History Litig., 514 F.Supp.3d 1147, 1154 (N.D. Cal. 2021) (citing Hill,
`
`865 P.2d at 654). Because autonomy privacy protects bodily autonomy, it does not apply under the
`
`circumstances. See In re Yahoo Mail Litig., 7 F.Supp.3d 1016, 1039 (N.D. Cal. 2014). The Court thus
`
`examines whether plaintiffs have sufficiently alleged the first class of privacy interests, information
`
`privacy.
`
`Construing the allegations in plaintiffs’ favor, they have adequately stated that Macy’s
`
`conduct constituted a serious invasion of their information privacy. Plaintiffs allege that Macy’s
`
`
`
`9
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 10 of 12 PageID #:5739
`
`purchased access to the Clearview database containing their biometric identifiers. Biometric
`
`information, by its very nature, is sensitive and confidential. See Fox v. Dakkota Integrated Sys., LLC,
`
`980 F.3d 1146, 1155 (7th Cir. 2020) (“biometric identifiers … are immutable, and once
`
`compromised, are compromised forever.”). Macy’s then accessed, used, and obtained the California
`
`Subclass members’ confidential and sensitive biometrics. In addition, plaintiffs allege that the
`
`California Subclass had a reasonable expectation of privacy to their highly sensitive biometrics.
`
`Vestrand has therefore plausibly alleged her right to privacy claim under the California Constitution.
`
`New York State Law Claim
`
`In Count Fourteen, plaintiff Aaron Hurvitz, on behalf of himself and others similarly
`
`situated in the New York Subclass, brings a claim under New York’s Civil Rights Act § 51. The
`
`purpose of § 51 is to protect individuals from the commercial exploitation of their name or image.
`
`See Kuklachev v. Gelfman, 600 F.Supp.2d 437, 474-75 (E.D.N.Y. 2009). To establish liability under §
`
`51, a plaintiff must show defendant’s nonconsensual use his name, portrait, picture, or voice within
`
`the state of New York for purposes of advertising or trade. See Electra v. 59 Murray Enter., Inc., 987
`
`F.3d 233, 249 (2d Cir. 2021).
`
`Without citing legal authority, Macy’s first argument is that plaintiffs’ § 51 claim must fail
`
`because they have not alleged that Macy’s took Hurvitz’s picture or the picture of any other
`
`particular person. The plain language of the statute, however, states that it is the nonconsensual
`
`“use” of a picture that is prohibited. See N.Y. Civil Rights L. § 51; see also Electra, 987 F.3d at 249.
`
`Macy’s also argues that its use of plaintiff’s picture was not for trade purposes. New York
`
`“courts have defined use ‘for the purposes of trade’ as use which ‘would draw trade to the firm’ or
`
`‘use for the purpose of making profit.’” Amusement Indus., Inc. v. Stern, 693 F.Supp.2d 301, 314
`
`(S.D.N.Y. 2010) (citation omitted). As discussed above, plaintiffs have sufficiently alleged plaintiffs’
`
`biometric information was necessary to Macy’s loss prevention business model and that this
`
`
`
`10
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 11 of 12 PageID #:5740
`
`biometric information generated profits by reducing the number of stolen goods. Plaintiffs’
`
`allegations have raised their right to relief above a speculative level, and thus, the Court denies
`
`Macy’s motion in this respect.
`
`Unjust Enrichment Claim
`
`Last, Macy’s moves to dismiss plaintiffs’ unjust enrichment claim alleged in Count Fifteen of
`
`the first amended consolidated class action complaint. In particular, Macy’s asserts that unjust
`
`enrichment is not a viable, stand-alone claim under Illinois, California, or New York law. Under
`
`Illinois law, unjust enrichment “is not a separate cause of action that, standing alone, would justify
`
`an action for recovery.” Toushin v. Ruggiero, 2021 IL App (1st) 192171, ¶ 80, 2021 WL 2718495, at
`
`*13 (1st Dist. 2021)(quoting Mulligan v. QVC, Inc., 888 N.E.2d 1190, 1200, 321 Ill.Dec. 257, 267, 382
`
`Ill.App.3d 620, 631 (1st Dist. 2008). Rather, unjust enrichment is a condition resulting from
`
`unlawful or improper conduct like fraud and may be redressed by a cause of action based upon that
`
`improper conduct. Toushin, 2021 IL App (1st) 192171, ¶ 80. “[I]f an unjust enrichment claim rests
`
`on the same improper conduct alleged in another claim, then the unjust enrichment claim will be
`
`tied to this related claim—and, of course, unjust enrichment will stand or fall with the related claim.”
`
`Cleary v. Philip Morris Inc., 656 F.3d 511, 517 (7th Cir. 2011). Because plaintiffs have sufficiently
`
`alleged their BIPA claims, the Court denies Macy’s motion to dismiss the unjust enrichment claim
`
`attendant to the BIPA claims at this juncture.
`
`The Ninth Circuit has explained that a California common law unjust enrichment claim may
`
`survive either “as an independent cause of action or as a quasi-contract claim for restitution.” ESG
`
`Capital Partners, LP v. Stratos, 828 F.3d 1023, 1038 (9th Cir. 2016); see also Hart v. TWC Product & Tech.
`
`LLC, 526 F.Supp.3d 592, 604 (N.D. Cal. 2021). “To allege unjust enrichment as an independent
`
`cause of action, a plaintiff must show that the defendant received and unjustly retained a benefit at
`
`the plaintiff’s expense.” ESG Capital, 828 F.3d at 1038. Here, plaintiffs have sufficiently alleged
`
`
`
`11
`
`

`

`Case: 1:21-cv-00135 Document #: 272 Filed: 01/27/22 Page 12 of 12 PageID #:5741
`
`Macy’s was unjustly enriched by using their biometric information without their knowledge and
`
`consent.
`
`Last, Macy’s correctly asserts plaintiffs’ New York common law unjust enrichment claims
`
`are preempted by New York Civil Rights Act §§ 50, 51. See Sondik v Kimmel, 131 A.D. 3d 1041, 1042,
`
`16 N.Y.S.3d 296, 298 (N.Y. App. Div. 2015) (“Common-law unjust enrichment claims for the
`
`unauthorized use of an image or likeness are preempted by Civil Rights Law §§ 50 and 51.”);
`
`Myskina v. Conde Nast Publ’n, Inc., 386 F.Supp.2d 409, 420 (S.D.N.Y. 2005) (“Under New York law,
`
`common law unjust enrichment claims for unauthorized use of an image or likeness are subsumed
`
`by Sections 50 and 51.”). The Court grants this aspect of Macy’s motion to dismiss.
`
`Conclusion
`
`For these reasons, the Court grants in part and denies in part defendant’s motion to dismiss
`
`[111].
`
`IT IS SO ORDERED.
`
`Date: 1/27/2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Entered: _____________________________
`
` SHARON JOHNSON COLEMAN
`
` United States District Judge
`
`12
`
`
`
`
`
`
`
`
`