Case: 1:21-cv-00135 Document #: 284 Filed: 02/17/22 Page 1 of 15 PageID #:5872
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`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 MEMORANDUM IN SUPPORT
`OF ITS MOTION TO CERTIFY FOR IMMEDIATE APPEAL CERTAIN QUESTIONS
`ARISING FROM THE COURT’S JANUARY 27, 2022 ORDER
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`Defendant Macy’s Retail Holdings, Inc. (“Macy’s”), pursuant to 28 U.S.C. § 1292(b),
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`submits this memorandum in support of its Motion to Certify for Immediate Appeal Certain
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`Questions Arising from the Court’s January 27, 2022 Order (“Motion for Certification”). Three
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`questions presented in the Court’s January 27, 2022 Order (the “Order,” Dkt. 272) involve
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`controlling questions of law, as to which there are substantial grounds for differences of opinion.
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`An immediate appeal definitively answering those questions will materially advance this litigation.
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`INTRODUCTION
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`The importance of this case goes far beyond the dispute between Plaintiffs and Macy’s.
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`The Order has significant, immediate implications for hundreds of other companies that have
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`allegedly contracted with Clearview and may soon be swept into this litigation. Plaintiffs purport
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`to name Macy’s as the representative of a putative defendant class comprised of over two hundred
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`companies that were Clearview customers. This nearly unprecedented tactic underscores why the
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`stakes surrounding the Motion for Certification are of the highest category.
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`The legal questions raised in the Order are crucially important to Article III standing and
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`biometric privacy law. Plaintiffs claim that everyone (millions of people throughout the United
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`States) whose information is contained in the Clearview Database can sue not only Clearview –
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`the collector and possessor of their biometric information – but also any Clearview customer that,
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`like Macy’s, uploaded a photo to the Clearview Database for identification and theft prevention
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`purposes. Plaintiffs nowhere allege that they were the subject of one of Macy’s searches (i.e., a
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`person in the photograph) or the object of the search results (i.e., an individual identified by the
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`algorithm), or that any adverse actions were taken against them as a result of any particular search.
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`Plaintiffs do not even allege that they ever walked into a Macy’s store.
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`TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021) sheds significant light on what harm
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`must be alleged to confer standing to maintain a data privacy claim in federal court as a matter of
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`law. TransUnion underscored that statutory violations – without any actual harm caused by the
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`defendant – are not enough to confer Article III standing. Although TransUnion addressed Fair
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`Credit Reporting Act claims, it is a landmark ruling in the broader context of data privacy litigation.
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`Reasonable minds can differ as to what TransUnion means for plaintiffs alleging BIPA claims
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`without pleading actual harm. Allowing the Seventh Circuit to clarify the applicability of
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`TransUnion to BIPA will not only materially advance the termination of the claims against
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`Macy’s, but also, the hundreds of claims Plaintiffs seek to assert against the “defendant class.”
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`Furthermore, Plaintiffs have brought a host of California and New York statutory and
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`common law claims based on the same allegations as their BIPA claims. The Order dismissed
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`some of these claims, but ruled that most of them could proceed. This ruling has important
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`implications for hundreds of companies doing business in California and New York, as it could be
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`used to impose a novel Illinois statute on California and New York companies without their
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`legislatures or courts creating – or even contemplating – the creation of such rights within their
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`borders. Macy’s respectfully contends that an interlocutory appeal would provide clarity – one
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`way or another – as to the application of BIPA-like rights outside Illinois.
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`Finally, permitting an interlocutory appeal will conserve judicial and party resources. A
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`2
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`ruling by the Seventh Circuit will clarify whether Plaintiffs can proceed on their claims as a matter
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`of law. If those claims are barred, it will save the parties and this Court the significant time and
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`resources required to adjudicate them. It will also conserve countless resources in other related and
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`copycat cases. On the other hand, if the Seventh Circuit affirms the Order, it may encourage the
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`parties to narrow the issues by agreement or even promote a potential settlement.
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`Macy’s respectfully asks this Court to certify three legal issues for interlocutory appeal to
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`the Seventh Circuit to settle the positions and expectations of the parties and others interested, and
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`to ensure that significant resources are not wasted in years of potentially unnecessary litigation:
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`Whether, in light of the U.S. Supreme Court’s decision in TransUnion,
`1.
`allegations of bare statutory violations of Illinois’ Biometric Information Privacy
`Act, unaccompanied by allegations of actual harm, confer Article III standing.
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`Whether, as a matter of law, a company’s use of a biometric database for
`2.
`loss prevention suffices to allege “profit” under Section 15(c) of BIPA.
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`Whether California and New York statutes and common law protect the
`3.
`same set of rights secured by BIPA.
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`All of these questions are issues of first impression. See Brewton v. City of Harvey, 319 F. Supp.
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`2d 890, 893 (N.D. Ill. 2004) (granting certification motion and noting questions are “contestable”
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`where they appear to be matters of first impression).
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`PROCEDURAL POSTURE AND FACTUAL BACKGROUND
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`On April 9, 2021, Plaintiffs filed the Complaint against Clearview1 and Macy’s. Dkt. 29.
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`The Complaint alleges very different facts against Macy’s than it does against Clearview,
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`differences that are relevant to the legal questions raised in this Motion for Certification.
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`Plaintiffs’ Allegations against Clearview
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`Plaintiffs allege Clearview covertly scraped three billion photographs of facial images from
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`the Internet, including photographs Plaintiffs posted of themselves and others on public websites
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`1 Plaintiffs also sued individuals affiliated with Clearview, collectively referred to as the “Clearview Defendants.”
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`3
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`while residing in Illinois, New York, California and Virginia, without Plaintiffs’ consent, using
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`artificial intelligence algorithms to scan face geometry. See e.g., Complaint, ¶¶ 43–51, 56-57.
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`Clearview purportedly used the scraped images to create the “Clearview Database,” consisting of
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`“the Biometrics of millions of American residents, including residents of Illinois, California, New
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`York and Virginia.” Id. ¶ 5. Clearview allegedly sold software subscriptions to companies so they
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`could “identify unknown individuals merely by uploading a photograph to the database.” Id. ¶ 1.
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`Plaintiffs’ Allegations against Macy’s
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`The Complaint never alleges that any Plaintiff visited a Macy’s store or that Macy’s
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`photographed them in a Macy’s store, submitted their photo to Clearview, or took any action
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`against them based upon any findings from the Clearview Database. To the contrary, Plaintiffs’
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`legal theories are not predicated on such facts. See Plaintiffs’ Opposition to Macy’s Motion to
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`Dismiss, Dkt. 152, pp. 5, 8 (agreeing Plaintiffs’ claims are not based on entering a Macy’s store).
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`Instead, Plaintiffs allege each time Macy’s and other Clearview customers uploaded a
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`photo to the Clearview Database, Clearview’s algorithm compared the biometric information
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`Clearview collected from the photo subject’s face (which Plaintiffs concede is not them) to the
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`biometric information of millions of individuals in the Clearview Database, including Plaintiffs.
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`Id. ¶¶ 4, 23.2 Plaintiffs claim this act alone confers Article III standing on them and millions of
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`others to bring BIPA claims (and other claims) against Macy’s and all Clearview’s customers.
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`Plaintiffs’ Claims against Macy’s
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`Plaintiffs bring two counts against Macy’s under BIPA: Counts I and III, for purportedly
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`violating Sections 15(b) and (c) of BIPA by “collecting” and “profiting” from Plaintiffs’ biometric
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`information without consent. Plaintiffs also bring various statutory and common law claims against
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`Macy’s under the laws of California and New York based on the exact same conduct that comprises
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`2 For ease of reference, Macy’s cites to the paragraph numbers used in Plaintiffs’ proposed First Amended
`Consolidated Class Action Complaint. Dkt. 109-1.
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`4
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`Plaintiffs’ BIPA claims, including: California’s Unfair Competition Law (Count X); the California
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`Civil Code’s “commercial misappropriation” provisions (Count XI); California common law
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`“right of publicity” (Count XII); California’s Constitution (Count XIII); New York’s civil rights
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`statutory laws (Count XIV); and New York common law unjust enrichment (Count XV).3
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`Plaintiffs’ Attempt to Have Macy’s Stand in the Shoes of over 200 Companies
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`Plaintiffs did not merely sue Macy’s in its individual capacity. Rather, the Complaint styles
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`Macy’s as a representative of the “Clearview Client Class,” which is defined as:
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`All non-governmental, public entities – including publicly-traded companies – who
`purchased access to, or otherwise obtained, the [Clearview] 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.
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`Dkt. 29, ⁋ 65. Plaintiffs claim there are at least 200 companies in the defendant class. Id. ⁋ 32.
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`The January 27 Order
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`On January 27, 2022, the Court issued the Order, finding Plaintiffs had Article III standing
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`to assert claims against Macy’s and plausibly alleged BIPA claims against it. The Court dismissed
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`Counts X (California’s Unfair Competition Law) and XV (New York common law unjust
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`enrichment), but allowed the remaining non-BIPA statutory and common law claims to proceed.
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`ARGUMENT
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`A district court may certify questions for interlocutory appeal if the relevant “order
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`involves a controlling question of law as to which there is substantial ground for difference of
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`opinion,” and “if an immediate appeal from the order may materially advance the ultimate
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`termination of the litigation.” 28 U.S.C. § 1292(b); see also A.D. by & through Serrano v. Credit
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`One Bank, N.A., No. 14 C 10106, 2016 WL 10612609, at *1 (N.D. Ill. Dec. 11, 2016) (granting
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`3 Count XVI of the Complaint asserts a claim against Macy’s under the Declaratory Judgment Act, 28 U.S.C. § 2201,
`but that statute “provides no independent source of federal subject-matter jurisdiction.” Manley v. Law, 889 F.3d 885,
`893 (7th Cir. 2018). Macy’s reserves the right to challenge the non-dismissal of this claim at the appropriate time.
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`certification under § 1292(b)). The issues addressed in the Order easily satisfy this standard.
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`I.
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`THE ORDER INVOLVES CONTROLLING QUESTIONS OF LAW AS TO
`WHICH THERE ARE SUBTANTIAL GROUNDS FOR DIFFERENCES OF
`OPINION.
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`A.
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`Whether Plaintiffs have Article III standing is a controlling legal question
`involving interpretation and application of recent Supreme Court precedent
`finding Article III standing was lacking where a defendant’s violation of a
`privacy statute did not cause the plaintiffs any concrete harm.
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`Article III of the Constitution limits the federal judicial power to deciding “Cases” and
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`“Controversies” and “as an essential part of a federal court’s authority under Article III, [the]
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`standing doctrine ensures respect for these jurisdictional bounds.” Dkt. 272, p. 3, citing Prairie
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`Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021). To have
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`Article III standing, a plaintiff must show: (1) it suffered an injury-in-fact; (2) that is fairly
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`traceable defendant’s conduct; and (3) that is likely to be redressed by a favorable judicial decision.
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`Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 729 (7th Cir. 2020).
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`The first controlling legal question is whether Plaintiffs’ theory of injury is enough to
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`confer Article III standing with respect to Macy’s, especially in light of the United States Supreme
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`Court’s recent ruling in TransUnion v. Ramirez, 141 S.Ct. 2190 (2021). TransUnion holds that
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`“Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at
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`2205. Thus, the mere creation of a statutory prohibition – even one meant to prevent harm – “does
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`not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a
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`concrete harm. . . . Only those plaintiffs who have been concretely harmed by a defendant’s
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`statutory violation” have Article III standing to sue in federal court. Id. (emphasis in original).4
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`4 Because this matter was filed in federal court, TransUnion controls the Article III inquiry and Rosenbach v. Six Flags
`Entertainment Corporation, 2019 IL 123186, does not. The Order cites to Rosenbach for the proposition that any
`person “aggrieved” by a violation of BIPA has established a concrete injury-in-fact for purposes of Article III even if
`they have not alleged an actual injury or adverse effect beyond a violation of rights under the statute. Dkt. 272, p. 5.
`But TransUnion makes clear that in federal court, the creation of a statutory prohibition does not relieve courts from
`performing an independent inquiry of an Article III injury-in-fact, regardless of whether the violation of a data privacy
`statute has technically been alleged. Extending Rosenbach’s holding to Article III standing is inconsistent with
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`6
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`In TransUnion, the plaintiff brought a class action under another data privacy statute, the
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`Fair Credit Reporting Act (“FCRA”), alleging that TransUnion violated the FCRA by failing to
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`use reasonable procedures to ensure the accuracy of their credit files. Id. at 2200. Specifically, the
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`plaintiff alleged that TransUnion incorrectly flagged several consumers’ names as matching with
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`an Office of Foreign Assets Control list of national security threats, without reasonably ensuring
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`the accuracy of any matches, in direct violation of Section 1681e(b) of the FCRA. Id. This resulted
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`in many individuals being incorrectly identified as national security threats. Id. For nearly two
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`thousand individuals with false positives, TransUnion provided misleading credit reports to third
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`parties. Id. at 2200. These individuals had standing to sue TransUnion. TransUnion falsely
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`identified thousands more individuals as national security threats, but they did not have Article III
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`standing because TransUnion did not provide misleading credit reports about them to third parties.
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`Thus, the individuals who merely alleged a violation of the FCRA, without alleging any actual
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`harm due to the dissemination of information to a third party, did not have Article III standing. Id.
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`The Order, citing TransUnion, noted that a “disclosure of private information” could be
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`concrete under Article III. Dkt. 272, p. 4. This is true, as individuals had standing to sue
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`TransUnion under the FCRA where TransUnion disclosed incorrect information about them to
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`third parties.5 However, because the individuals whose information was not provided to third
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`parties did not have standing, reasonable minds can differ on how TransUnion should be applied
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`to Macy’s and the putative defendant class under BIPA.
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`TransUnion. TransUnion, 141 S.Ct at 2205; see also Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1248 (7th Cir.
`2021) (“Our job is to decide whether Thornley and her co-plaintiffs have Article III standing to pursue the case they
`have presented in their complaint. We have concluded that they do not: they have described only a general, regulatory
`violation, not something that is particularized to them and concrete.”).
`5 The Supreme Court in TransUnion had “no trouble” finding that these class members – about whom TransUnion
`transferred incorrect information to third parties – suffered significant harm. See TransUnion, 141 S. Ct. at 2209
`(“TransUnion provided third parties with credit reports containing OFAC alerts that labeled the class members as
`potential terrorists, drug traffickers, or serious criminals. The 1,853 class members therefore suffered a harm with a
`‘close relationship’ to the harm associated with the tort of defamation.”).
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`Plaintiffs here allege, on information and belief, that Macy’s and all other Clearview
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`customers manually “upload” a “probe image” derived from “surveillance cameras” to the
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`Clearview Database, and Clearview then uses “algorithms” to compare the photo across the data
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`it already collected and stores. Complaint, ⁋⁋ 1, 20, 22, 32, 65. Clearview then allegedly
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`communicates the identity of a previously unknown individuals to their customers. Id. ⁋ 22.
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`This Court recognized the Complaint places several labels on Macy’s alleged conduct,
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`including its alleged “purchase,” “use,” “access,” and “obtaining” of Plaintiffs’ biometric
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`information. Dkt. 272, p. 4; see also Complaint, ⁋⁋ 22, 32. The Order accepts these allegations as
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`true, pointing to the fact that the parties are at the pleadings stage and that all well-pleaded factual
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`allegations and reasonable inferences therefrom are to be taken as true when a defendant has
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`facially attacked standing. Dkt. 272, p. 2, citing Prairie Rivers Network v. Dynegy Midwest
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`Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021). But even at the pleadings stage, it is the
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`plaintiff’s burden to establish Article III standing, and the Complaint must meet the same Iqbal-
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`Twombly plausibility standards that exist for motions under Rule 12(b)(6). Id. at 1008. Mere
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`conclusory statements, even if couched in fact, do not suffice unless there are enough facts alleged
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`to raise the bar from a possibility of entitlement to relief to a plausible level. Adams v. City of
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`Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014). Thus, the key question is whether Plaintiffs have
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`alleged facts demonstrating Macy’s inflicted concrete harm more than a mere statutory violation,
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`which injures Plaintiffs in a “real, and not abstract” manner. TransUnion, 141 S.Ct at 2204.
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`By examining what Plaintiffs are not alleging, it becomes clear that reasonable minds can
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`differ as to whether conclusory labels like “use” and “access” are enough to confer Article III
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`standing for a violation of BIPA. BIPA Section 15(b) does not address or govern mere allegations
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`of “use” or “access,” the terminology of the Complaint.6 But Plaintiffs repeatedly rely on these
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`terms to urge the Court that use of or access to the Clearview Database is akin to possessing or
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`obtaining the biometric data contained therein. Plaintiffs do not and cannot plausibly allege that
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`every time Macy’s queries the Clearview Database, Clearview transfers the entirety of its alleged
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`mathematical facial biometric database to Macy’s (presumably many terabytes in size), so that
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`Macy’s could be said to actually “possess” such data. For good reason: if this was Clearview’s
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`practice, it would not only be giving away its intellectual property to customers, but would also be
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`transferring a massive amount of data to them. This reality is underscored by Plaintiffs’ own
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`motion for a preliminary injunction to prevent Clearview from disseminating their information in
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`the Clearview Database. See Plaintiffs’ Motion for a Preliminary Injunction, Dkt. 31, pp. 2, 10-14.
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`If Plaintiffs actually believed that Clearview transfers the contents of its database to its customers,
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`then Plaintiffs’ argument for “irreparable harm” at the preliminary injunction stage would have
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`been untrue, as hundreds of other companies besides Clearview would have already possessed the
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`same data that was the subject of Plaintiffs’ injunction request.7
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`Rather, Plaintiffs rely on conclusory labels that are foreign to Sections 15(b) of BIPA to
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`obfuscate that they have not and cannot allege any actual transfer or possession of any data from
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`the Clearview Database to Macy’s. Further, Plaintiffs have not alleged that Macy’s possesses their
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`photographs, queried the database using their photographs, or identified them using the Clearview
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`Database. They have, in other words, not alleged a single fact showing they are connected with
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`6 Section 15(b) of BIPA is only violated when an entity “collect[s], capture[s], purchase[s], receive[s] through trade,
`or otherwise obtain[s]” an individual’s “biometric identifier” or “biometric information” without first providing valid
`notice and obtaining the individual’s consent. See 740 ILCS 14/15(b). In other words, the duty to send out written
`notice under BIPA and obtain written consent lies solely with the entity that collects the purported biometric data, and
`there is no allegation that Macy’s engaged in such conduct. See 740 ILCS 14/10 (defining “biometric identifier” to
`mean “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry” and excluding “photographs”).
`7 In their Motion for a Preliminary Injunction, Plaintiffs never claimed that any customer of Clearview had actual
`“possession” of the biometric data of millions of individuals. Rather, Plaintiffs carefully used the words “allow for. .
`. . access” when describing Clearview’s customers’ relationship to any data.
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`9
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`Macy’s in a tangible way. To the contrary, their only connection to Macy’s is through their
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`purported presence in the remote Clearview Database. By Plaintiffs’ own admission, Macy’s did
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`not scrape Plaintiffs’ biometric data from photos, did not create the algorithm used to do so, did
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`not create the Clearview Database, and did not put their information in the database. Rather,
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`Plaintiffs allege that Clearview did all these things. Complaint, ⁋⁋ 1, 21.
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`Although reasonable minds could differ on the controlling question of Article III standing
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`in these circumstances, they cannot differ on the importance of this question to Macy’s and the
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`hundreds of companies in the putative defendant class. By the same token, the importance of this
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`question cannot be overestimated to the millions in the putative plaintiff class who could benefit
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`if the Seventh Circuit agreed that the Plaintiffs’ allegations here are sufficient to confer standing.
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`B.
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`Whether a company’s use of a biometric database for loss prevention suffices
`to allege “profit” under Section 15(c) of BIPA.
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`As discussed above, the Complaint alleges Macy’s queries the Clearview Database when
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`it suspects a Macy’s customer of retail theft. This raises the important question of whether, as a
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`matter of law, a company that possesses8 alleged biometric information and uses it for any
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`utilitarian purpose, including security and theft prevention, can be said to “profit” from it, so as to
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`be precluded from using such information under Section 15(c) of BIPA.
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`Macy’s contends that the answer to this question is no. Unlike Section 15(a), (b) and (d)
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`which permit the retention of biometric information with proper policies, and the collection and
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`dissemination of such information with informed consent, Section 15(c) unconditionally bars a
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`private entity “in possession of” biometric information from selling, leasing, trading, or otherwise
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`profiting from that information. Plaintiffs invoke the word “profit” to apply to surveillance loss
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`8 The Complaint alleges Macy’s queries the Clearview Database when it suspects a Macy’s customer of retail theft,
`but makes an unsupported leap to conclude that such queries amount to the “use” or “access” of the biometric
`information of millions of individuals (labels not included in BIPA), and then concludes again that these labels equate
`to “possession” of information.
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`10
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`prevention systems, expanding the definition of “profit” so broadly that any potential benefit from
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`the possession of biometric information would be prohibited, rendering Sections 15(a), (b) and (d)
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`meaningless. This interpretation would also read out the preamble of BIPA, which impliedly
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`authorized the “use of biometrics” in “security screening sectors” as doing so held “promise.”
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`BIPA preamble, 740 ICLS 14/5(a). The Order adopts Plaintiffs’ conclusion that loss prevention is
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`synonymous with profit because Macy’s use of the Clearview Database allegedly generated profits
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`by reducing the number of stolen goods. Dkt. 272, pp. 10-11.9 And yet, by this same interpretation,
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`all biometric fingerprint timekeeping devices would also be prohibited from use in Illinois, because
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`they reduce time fraud. Macy’s motion to dismiss raised a variety of other common uses of
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`biometric information that would be barred by Plaintiffs’ interpretation of Section 15(c), because
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`their use in some way helps the business that is using biometric technology. Whether the definition
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`of BIPA should be read so broadly as to bar a variety of beneficial uses, including surveillance and
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`theft prevention, is an issue of first impression and one on which reasonable minds can differ. This
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`question can and should be fully and finally resolved in an interlocutory appeal.10
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`C.
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`Whether California and New York statutes and common law protect the same
`set of rights secured by BIPA.
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`The Order dismissed Count X and portions of Count XV, but allowed Plaintiffs’ remaining
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`non-BIPA claims against Macy’s to proceed. This raises a third question for immediate appeal:
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`whether California and New York laws protect the same set of rights secured by BIPA, a novel
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`Illinois statute that created new privacy rights for Illinois residents unknown at common law. There
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`is no debate that BIPA is a unique statute that forever changed the status of biometric privacy
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`rights for Illinois citizens. The dockets of Illinois state courts and federal courts located in Illinois
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`9 Though Plaintiffs conclude Macy’s also uses the Clearview Database to “improve customer experience,” id., p. 4,
`there is zero factual support about how Macy’s accomplishes this.
`10 Other district courts have adopted a narrow reading of the term “profit.” Carpenter v. McDonald's Corp., No. 1:21-
`CV-02906, 2021 WL 6752295, at *5 (N.D. Ill. Nov. 1, 2021); Hazlitt v. Apple Inc., 543 F. Supp. 3d 643, 651–52 (S.D.
`Ill. 2021); Vance v. Amazon.com Inc., No. C20-1084JLR, 2021 WL 1401633, at *3 (W.D. Wash. Apr. 14, 2021).
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`11
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`evidence this reality; they are replete with BIPA lawsuits involving every sector of Illinois
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`commerce. The crucial question presented here is whether the novel rights secured by this law,
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`unique in the nation, give rise to common law and statutory claims outside of Illinois.
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`Plaintiffs’ attempt to extend BIPA to other states is nowhere more evident than in Count
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`XIII, which alleges that Macy’s violated the “California Constitution.” Complaint, p. 45. In their
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`briefs, Plaintiffs never cite any California or Illinois case holding that the drafters of the California
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`Constitution contemplated the rights created by BIPA because no such case exists. To the contrary,
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`“California has not legislatively recognized a right of privacy in personal biometric data and has
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`not implemented any specific protections for that right or afforded a private cause of action to
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`enforce violations of it.” In re Facebook, 185 F. Supp. 3d 1155, 1170 (N.D. Cal. 2016).
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`To the extent the California Constitution’s right of privacy could ever provide protection
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`for biometric privacy rights, it would only be in the context the dissemination of sensitive
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`information to third parties in a manner that proximately caused them harm. See In re Yahoo Mail
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`Litig., 7 F. Supp. 3d 1016, 1039 (N.D. Cal. 2014) (discussing the California common law right of
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`privacy as precluding the “dissemination or misuse” of sensitive and confidential information).
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`Plaintiffs do not allege that Macy’s disseminated their biometric information, nor do Plaintiffs
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`bring a BIPA Section 15(d) claim against Macy’s based upon unlawful dissemination. Thus,
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`allowing Count XIII to proceed would effectively create a California common law right of privacy
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`claim as a convenient substitute for BIPA Section 15(b), without regard to the fact that BIPA does
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`not have extra-territorial effect. Given the public policy concerns involved with extending another
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`state’s common law, this Court should certify its ruling on Count XIII for interlocutory appeal.
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`The same logic applies to Counts XI and XII, where Plaintiff Andrea Vestrand alleges
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`under California Civil Code Section 3344 “commercial misappropriation of likeness” and
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`“common law right to publicity” claims. Complaint, p. 42. Her conclusory allegations – in one
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`Case: 1:21-cv-00135 Document #: 284 Filed: 02/17/22 Page 13 of 15 PageID #:5884
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`sentence – lump all defendants together by alleging all of them scraped her photos, created the
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`Clearview Database, and “used” the Clearview Database for “commercial gain.” Id. ⁋ 164. This
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`bald legal conclusion is inconsistent with Plaintiffs’ earlier allegations in the Complaint (discussed
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`supra) and their preliminary injunction motion averring in detail how Clearview single-handedly
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`did these things. Id. ⁋⁋ 1, 21; see also Plaintiffs’ Motion for a Preliminary Injunction, Dkt. 31, pp.
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`1-8. Vestrand does not specifically allege she ever walked into a Macy’s store, or that Macy’s ever
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`possessed her photograph or received a result from Clearview relating to her. Vestrand also cannot
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`show how Macy’s “loss prevention business model” falls under Section 3344, which only provides
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`relief against individuals who use photographs “for purposes of advertising or selling, or soliciting
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`purchases of, products, merchandise, goods or services.” Cal. Civ. Code. § 3344(a). Expanding
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`Section 3344 to loss prevention and security would effectively prohibit any business in California
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`from using security cameras to prevent shoplifting.11 Reasonable minds could differ as to whether
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`the California legislature intended this result.
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`Similarly, reasonable minds could differ as to Count XIV, which contends that Macy’s
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`violated Plaintiff Aaron Hurvitz’s rights under Section 51 of the New York Civil Rights Act. This
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`law has significant similarities to California’s Civil Code Section 3344, and provides a remedy for
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`persons whose “picture” is used without their consent for “advertising purposes or for purposes of
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`trade.” N.Y. Civ. Rights Law § 51.
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`The Order found that Plaintiffs adequately alleged Macy’s “use” of Hurvitz’s picture, even
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`though there is no dispute that Hurvitz failed to alleged he walked into a Macy’s store, and Macy’s
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`11 See Blazheiev v. Ubisoft Toronto Inc., No. 17-CV-07160-EMC, 2018 WL 3417481, at *7 (N.D. Cal. July 13, 2018)
`(concluding that plaintiff’s failure to explain how and when defendant misappropriated plaintiff’s likeness to advertise,
`sell, or solicit products or services was fatal to Section 3344 claim); Renier v. Eringer, No. CV 18-243 DSF (JPRX),
`2018 WL 6844717, at *4 (C.D. Cal. July 6, 2018) (same); Callahan v. Ancestry.com Inc., No. 20-CV-08437-LB, 2021
`WL 783524, at *5 (N.D. Cal. Mar. 1, 2021) (dismissing Section 3344 and common law claims for failure to plead);
`In re Google, Inc. Privacy Polic’y Litig., No. C-12-01382-PSG, 2013 WL 6248499, at *5 (N.D. Cal. Dec. 3, 2013)
`(same).
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`Ca