Case: 1:21-cv-00135 Document #: 306 Filed: 03/09/22 Page 1 of 13 PageID #:5961
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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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`Civil Action File No.: 1:21-cv-00135
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`Judge Sharon Johnson Coleman
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`Magistrate Judge Maria Valdez
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`PLAINTIFFS’ OPPOSITION TO DEFENDANT MACY’S, INC.’S MOTION TO
`CERTIFY FOR IMMEDIATE APPEAL CERTAIN QUESTIONS ARISING FROM THE
`COURT’S JANUARY 27, 2022 ORDER
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`INTRODUCTION
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`After this Court largely denied the motion to dismiss of Defendant Macy’s, Inc.1 (“Macy’s”
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`or “Defendant”), Macy’s now seeks the proverbial second bite of the apple through its motion to
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`certify various issues for immediate appeal. In its motion, Defendant ignores this Court’s well-
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`reasoned January 27, 2022 Memorandum and Opinion Order (the “Order”) (Dkt. 272) and fails to
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`properly apply the legal standard governing motions brought pursuant to 28 U.S.C. § 1292(b).
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`When this Court’s Order and the governing legal standard are properly considered, it is clear that
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`Defendant’s motion does not present any controlling and contestable question of law, the
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`resolution of which would speed up this litigation. The Court should deny the motion.
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`1 The First Amended Consolidated Class Action Complaint names Macy’s, Inc as a defendant. Dkt. 116 at
`1, ¶ 19. Yet, Macy’s brings its motion on behalf of “Macy’s Retail Holdings, Inc,” a non-party. See Dkt.
`284. Macy’s also cites to “Plaintiffs’ proposed First Amended Consolidated Class Action Complaint” (see
`id. at 4, n.2, instead of the actual filed version of the complaint – which is Dkt. No. 116.
`1
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`Case: 1:21-cv-00135 Document #: 306 Filed: 03/09/22 Page 2 of 13 PageID #:5962
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`I.
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`Legal Standards.
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`ARGUMENT
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`“Requests for interlocutory review are for exceptional cases.” Feit Elec. Co., Inc. v. CFL
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`Tech., LLC, No. 13-cv-9339, 2021 WL 4061741, at *1 (N.D. Ill. Sept. 7, 2021) (Coleman, J.); see
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`also Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 536 (7th Cir. 2012) (noting that
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`interlocutory appeals are generally “frowned on in the federal judicial system”). A party seeking
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`an interlocutory appeal under § 1292(b) must satisfy four statutory criteria: “(1) there must be a
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`question of law; (2) the question of law must be controlling; (3) the question of law must be
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`contestable; and (4) resolution of the question of law must speed up the litigation.” Feit Elec., 2021
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`WL 4061741, at *1 (citing Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675 (7th Cir.
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`2000)). “Unless all these criteria are satisfied, the district court may not and should not certify its
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`order . . . for an immediate appeal under section 1292(b).” Ahrenholz, 219 F.3d at 675 (emphasis
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`in original). Whether to certify an issue for appeal under § 1292(b) is within a district court’s
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`discretion. Feit Elec. Co., 2021 WL 4061741, at *1.
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`In the context of § 1292(b), a question of law goes to the “meaning of a statutory or
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`constitutional provision, regulation, or common law doctrine.” Ahrenholz, 219 F.3d at 676. “A
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`mere disagreement in how a court applies the law to the facts of a case is not grounds for
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`interlocutory appeal.” Feit Elec. Co., 2021 WL 4061741, at *1. Further, the mere fact that a party
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`disagrees with a court’s finding does not provide grounds for a § 1292(b) interlocutory appeal. See
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`Gabiola v. Mugshots.com, LLC, No. 16 C 02076, 2017 WL 11586992, at *2 (N.D. Ill. Dec. 8,
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`2017) (Coleman, J.).
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`II.
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`Defendant Has Not Carried Its Burden With Respect to Its Claim that Plaintiffs Have
`Failed to Establish Article III Standing.
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`Ignoring Plaintiffs’ allegations and the Court’s ruling, Defendant seeks to certify the issue
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`of “[w]hether, in light of the U.S. Supreme Court’s decision in TransUnion, allegations of bare
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`statutory violations of Illinois’ Biometric Information Privacy Act [“BIPA”], unaccompanied by
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`allegations of actual harm, confer Article III standing.” See Dkt. 284 at 3. But Plaintiffs have not
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`made “allegations of bare statutory violations [of BIPA], unaccompanied by allegations of actual
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`harm.” Rather, as the Court held in its Order, “Plaintiffs have sufficiently alleged that defendant’s
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`use of their private information without the opportunity to give their consent as required under
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`BIPA 15(b) caused them the concrete harm of violating their privacy interests in their biometric
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`data.” Dkt. 272 at 4; see also Dkt. 116 ¶¶ 62, 81, 84.
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`The Court based its holding on controlling Seventh Circuit precedent. See id. (citing Bryant
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`v. Compass Grp USA, Inc., 958 F.3d 617, 627 (7th Cir. 2020)). In Bryant, the Seventh Circuit
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`found Article III standing where the defendant “inflicted the concrete injury BIPA intended to
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`protect against, i.e. a consumer’s loss of the power and ability to make informed decisions about
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`the collection, storage, and use of her biometric information.” 958 F.3d at 627; see also id. at 619
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`(“a failure to follow section 15(b) of the law leads to an invasion of personal rights that is both
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`concrete and particularized.”). As in Bryant, Plaintiffs have alleged the concrete injury BIPA is
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`intended to protect against – i.e., the loss of their power and ability to make informed decisions
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`about the collection, storage, and use of their biometric information. See Dkt. 116 ¶¶ 62, 81, 84.
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`Contrary to Defendant’s contention (see Dkt. 284 at 6-8), the Supreme Court’s opinion in
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`TransUnion v. Ramirez, 141 S.Ct. 2190 (2021), does not transform this Court’s straightforward
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`and uncontestable ruling into one that is proper for interlocutory appeal. Indeed, TransUnion
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`bolsters this Court’s ruling.
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`3
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`In TransUnion, the Supreme Court considered whether two groups of class members
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`asserting claims under the Fair Credit Reporting Act suffered a concrete injury in fact under Article
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`III. Id. at 2208-2213. With respect to the first group of class members, the defendant had
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`disseminated a misleading credit report to a third party. Id. at 2208-09. In contrast, while a
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`misleading remark appeared on the credit reports of the second group of class members, those
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`reports were not disseminated to a third party. Id. at 2209. Based on those facts, the Supreme Court
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`held that the first group of class members had suffered a concrete injury-in-fact under Article III,
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`whereas the second group had not. Id.
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`Contrary to Defendant’s contention (Dkt. 284 at 7), TransUnion does not stand for the
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`proposition that a victim of a privacy harm can only suffer an injury-in-fact if the information is
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`disseminated to a third party. As this Court explained in the Order: “[a]s the TransUnion Court
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`explained, ‘[v]arious intangible harms can also be concrete’ including ‘reputational harms,
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`disclosure of private information, and intrusion upon seclusion.’” Dkt. 272 at 4 (citing TransUnion,
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`141 S.Ct. at 2200).
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`Plaintiffs, here, have sufficiently alleged they suffered concrete harm when Defendant
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`obtained their sensitive biometric data without Plaintiffs having had the opportunity to consent to
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`that obtainment and subsequent use. See Bryant, 958 F.3d at 627. While Defendant tries to
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`downplay its conduct, it did “more than merely possess [Plaintiffs’] photos, including that Macy’s
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`used the Clearview database to obtain the biometrics of millions of Illinois residents,” including
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`the biometric data of the Illinois Plaintiffs, “for comparing the data against the photographs Macy’s
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`uploaded.” Dkt. 272 at 5. Nothing about TransUnion results in there being a controlling and
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`contestable question of law with respect to Plaintiffs’ Article III standing.2
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`2 While it does not appear that Defendant claims that Plaintiffs have failed to sufficiently allege an Article
`III injury-in-fact with respect to their BIPA § 15(c) claim, out of an abundance of caution, Plaintiffs briefly
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`Unable to find a controlling and contestable question of law that would provide grounds
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`for a § 1292(b) interlocutory appeal, Defendant makes one up. Specifically, Defendant incorrectly
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`claims that the “Order cites to Rosenbach [v. Six Flags Entertainment Corp.] for the proposition
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`that any person ‘aggrieved’ by a violation of BIPA has established a concrete injury-in-fact for
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`purposes of Article III even if they have not alleged an actual injury or other adverse effect beyond
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`a violation of rights under the statute.” See Dkt. 284 at 6, n.4. However, the Court cited Rosenbach
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`for the opposite proposition – namely, that federal jurisdiction could be avoided by a plaintiff who
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`asserts “bare BIPA 15(c) claims alleging that they were not injured as a result of any BIPA
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`violations.” Dkt. 272 at 4-5. The Court specifically found that “[s]uch is not the case here.” Id. at
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`5 (emphasis added). While the Court addressed this issue in the context of BIPA § 15(c), its finding
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`that “such is not the case here,” applies with equal force to Plaintiffs’ BIPA § 15(b) claim.
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`Defendant’s contention that Plaintiffs failed to properly plead an injury-in-fact under well-
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`settled standards governing Fed. R. Civ. P. 12(b)(6) motions (see Dkt. 284 at 8-10) lacks merit.
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`See In re: Mack Indust., Ltd., No. 21-cv-3123, 2021 WL 5280937, at *1 (N.D. Ill. Nov. 12, 2021)
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`(Coleman, J.) (“A mere disagreement in how a court applies a well-settled standard to the particular
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`facts of a case is not grounds for interlocutory appeal.”).
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`Similarly, Defendant’s contention that “reasonable minds can differ” as to whether
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`Plaintiffs’ allegations are enough to confer Article III standing (see Dkt. 284 at 8) is another
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`improper attack on this Court’s application of the Rule 12(b)(6) standard. Moreover, the contention
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`raises a question of fact as to what Plaintiffs’ allege their injury to be. As discussed above,
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`address that claim. In its Order, the Court properly found that Plaintiffs “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.” Dkt. 272 at 4. As the Court found, “plaintiffs allege that Macy’s purchased,
`obtained, accessed, and used the biometrics in the database and profited from that conduct.” Id.
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`5
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`Plaintiffs allege injury based on Defendant’s obtainment of their biometric data without consent.
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`Defendant’s attempt to rewrite Plaintiffs’ allegations to ground Plaintiffs’ § 15(b) claim on
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`Defendant’s use of and access to Plaintiffs’ biometric data is a tacit concession that Defendant’s
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`argument fails on the actual facts.
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`Again ignoring Bryant, Defendant makes the conclusory assertion that certification of
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`Defendant’s standing issue would materially advance the ultimate termination of this litigation. Id.
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`at 14. Rather than addressing how the litigation would be materially advanced, Defendant pivots
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`and claims “[t]his Court and the parties can greatly benefit from the Seventh Circuit’s blessing or
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`rejection of Plaintiffs’ unique theory on Article III standing . . . .” See id. But the only unique
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`standing issue is the strained one created by Defendant.
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`Defendant also argues that certification is nonetheless warranted because the court of
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`appeals might clarify the law in some unspecified way while affirming this Court’s decision. Dkt.
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`284 at 3 (“if the Seventh Circuit affirms the Order, it may encourage the parties to narrow the
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`issues by agreement or even promote a potential settlement”). Defendant cites no precedent for the
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`ill-founded idea that the mere chance of a clarification is grounds for an interlocutory appeal.
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`Recognizing its inability to satisfy the actual § 1292(b) criteria, Defendant conjures up a
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`non-existent factor. See Dkt. 284 at 3. According to Defendant, it has raised a question that is
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`important to Defendant, other putative defendant class members and class members. See id. at 10.
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`Defendant’s view of the importance of the issue it has created in hopes of obtaining an immediate
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`appeal is irrelevant to a proper § 1292(b) analysis.
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`III. Defendant Has Not Carried Its Burden With Respect to Its Claim that Plaintiffs Have
`Failed to Sufficiently Allege Profit Under BIPA § 15(c).
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`In its Order, the Court carefully considered and rejected Defendant’s contention that
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`Plaintiffs did not plausibly allege that Defendant otherwise profited from Plaintiffs’ and class
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`members’ biometric data in violation of BIPA § 15(c). Dkt. 272 at 6; see also Dkt. 284 at 3, 10-
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`11. Specifically, the Court held that: (a) “plaintiffs have adequately alleged that Macy’s obtained
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`access to their biometric information and searched the Clearview database resulting in Macy’s
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`obtaining, accessing, and using the biometrics in the database”; and “Macy’s used this information
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`for their own business purposes and profited from its use” in violation of BIPA. Id. (stating that
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`“it is reasonable to infer that plaintiffs’ biometric information was necessary to Macy’s loss
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`prevention business model and that this biometric information generated profits by reducing the
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`number of stolen goods”).
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`While Defendant seeks to couch its BIPA § 15(c) argument as one involving a purported
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`question of law regarding the meaning of “profit” (Dkt. 284 at 10), the Court did not base its ruling
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`on a statutory construction of that term. See Dkt. 272 at 6. Instead, the Court addressed the actual
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`arguments Defendant made in its motion to dismiss. See id. As the Court stated in its Order,
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`Defendant argued in its motion to dismiss “that plaintiffs have not alleged Macy’s possessed their
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`biometric information and that plaintiffs did not provide sufficient factual details that Macy’s
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`profited from this information.” See id. (emphasis added). In other words, Defendant simply
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`argued that Plaintiffs failed to satisfy the Rule 12(b)(6) pleading standard. The Court rejected
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`Defendant’s argument. Id. While Defendant may disagree with the Court’s determination, that
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`disagreement does not provide grounds for an interlocutory appeal. See Gabiola, 2017 WL
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`11586992, at *2.
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`Even if the Court’s analysis of whether Plaintiffs sufficiently alleged facts to show that
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`Defendant profited involved a question of law, the Court still should not certify the issue because
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`Defendant cannot satisfy all of the § 1292(b) criteria. For instance, the issue is not contestable.
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`Given that the Court engaged in a straightforward Rule 12(b)(6) analysis, there is no reason to
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`believe that the Seventh Circuit or any other court would reach a conclusion different from the one
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`reached by this Court. Further, there is not substantial ground for difference of opinion regarding
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`whether a defendant can profit from its direct use of others’ biometric data. Indeed, in Vance v.
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`Amazon.com, Inc., 534 F.Supp.3d 1314 (W.D. Wash. 2021), relied on by Defendant (Dkt. 284 at
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`11, n.10), the Court denied a motion to dismiss the plaintiffs’ BIPA § 15(c) claim where the
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`allegations supported the inference that the defendant received some benefit from the biometric
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`data. Id. at 1323-24. As set forth above, the Court made a similar determination here.
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`The other authority relied on by Defendant (Dkt. 284 at 11, n.10) is distinguishable. Both
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`Carpenter v. McDonald’s Corp., No. 1:21-cv-02906, 2021 WL 6752295, at *5 (N.D. Ill. Nov. 1,
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`2021); and Hazlitt v. Apple, Inc., 543 F.Supp.3d 643, 651-52 (S.D. Ill. 2021), addressed Article III
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`standing, not the overall definition of “profit.”
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`The issue is not contestable for the separate reason that in the absence of a ruling by a
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`controlling court that definitively decides an issue – as is the case here – the party requesting
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`certification has the burden of demonstrating that a substantial likelihood exists that the appellate
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`court will reverse the district court’s ruling on appeal. U.S. Commodity Futures Trading Comm’n
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`v. Kraft Foods Grp., Inc., 195 F. Supp. 3d 996, 1005 (N.D. Ill. 2016). “[T]he mere lack of judicial
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`precedent on [an] issue does not establish substantial ground for difference of opinion.” In re
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`Demert & Dougherty, Inc., No. 01-cv-7289, 2001 WL 1539063, at *6 (N.D. Ill. Nov. 30, 2001);
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`Baranski v. Serhant, 602 F. Supp. 33, 36 (N.D. Ill. 1985) (“[T]he very fact that [an issue] has never
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`before been presented does not necessarily make it a matter of substance, so as to warrant an
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`interlocutory appeal.”).
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` Defendant has not shown any likelihood, let alone a substantial likelihood, that this Court’s
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`ruling on Plaintiffs’ § 15(c) claim will be reversed on appeal. If the issue were to be certified, the
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`Seventh Circuit would have to predict how the Illinois Supreme Court would decide the issue. See
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`Gabiola, 2017 WL 1156992, at *2. The Seventh Circuit is likely to do what this Court did – i.e.,
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`determine: (a) whether Plaintiffs sufficiently pleaded a BIPA § 15(c); and/or (b) whether
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`Defendant received some benefit from the biometric data at issue. See id. Alternatively, the
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`Seventh Circuit could choose to certify the question to the Illinois Supreme Court. In that instance,
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`certification by this Court is unlikely to accelerate the ultimate resolution of the case. Id.
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`IV. Defendant Has Failed to Carry Its Burden With Respect to Its Claim that Plaintiffs
`Seek to Enforce BIPA Through California and New York Laws.
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`With respect to Plaintiffs’ claims under California and New York law, Defendant seeks to
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`reframe the Court’s Order as permitting BIPA to be enforced under various California and New
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`York laws. See Dkt. 284 at 11-14. However, the Order addressed each law at issue in its own right.
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`See Dkt. 272 at 6-11 The Order did not in any way seek to extend BIPA’s reach or expand the
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`conduct that falls within the reach of the California and New York statutory and constitutional
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`provisions at issue. See id. For instance, with respect to Plaintiffs’ common law right to publicity
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`claim under California law, the Court found that Plaintiff Vestrand stated a plausible claim by
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`“alleging that Macy’s used her photographs and likeness without authorization and for commercial
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`gain via Macy’s loss prevention business model.” Id. at 8. Further, the Court found that Plaintiff
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`Vestrand “alleges the California Subclass was injured because Macy’s did not compensate them
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`for its use of their likeness, identities, and photographs.” Id. These findings simply apply the facts
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`to the law, have nothing to do with BIPA and provide no grounds for an immediate appeal. The
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`Court made similar findings with respect to Plaintiffs’ claims under California Civil Code § 3344
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`and New York Civil Rights Act § 51. Id. at 8-11.
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`With respect to Plaintiffs’ claim that Defendant violated Plaintiff Vestrand’s and California
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`Subclass members’ right to privacy under the California Constitution, the Court properly found
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`9
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`that Plaintiffs adequately alleged that “Macy’s conduct constituted a serious invasion of their
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`information privacy. Plaintiffs allege that Macy’s purchased access to the Clearview database
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`containing their biometric identifiers. Biometric information, by its very nature, is sensitive and
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`confidential.” Id. at 9-10. The Court also found that Plaintiffs alleged that: (a) Defendant accessed,
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`used and obtained the California Subclass members’ confidential and sensitive biometric data; and
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`(b) the California Subclass members had a reasonable expectation of privacy to their highly
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`sensitive biometric data. Id. at 10. Again, the Court’s Order properly applied Plaintiffs’ allegations
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`to California law, did not state that the California Constitution protects the same rights secured by
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`BIPA and does not provide grounds for an immediate appeal.
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`Beyond Defendant’s unsupported contention that Plaintiffs’ California and New York
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`claims are actually BIPA claims in disguise (Dkt. 284 at 13-14), Defendant essentially argues that
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`the Court failed to properly apply the Rule 12(b)(6) standard to Plaintiffs’ allegations. See id.
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`Again, as discussed above, a “mere disagreement in how a court applies a well-settled standard to
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`the particular facts of a case is not a grounds for interlocutory appeal.” In re: Mack Indust., Ltd.,
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`2021 WL 5280937, at *1. Similarly, merely because Defendant disagrees with the Court’s findings
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`(see, e.g., Dkt. 284 at 14 (disagreeing with the Court’s finding that Plaintiffs adequately alleged a
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`claim under New York Civil Rights Act § 51)) is not a basis for interlocutory appeal. See Gabiola,
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`2017 WL 11586992, at *2.
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`Defendant’s contention that the issue it raises with respect to California and New York law
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`is one of first impression (Dkt. 284 at 3) suffers from the same problems discussed in the BIPA §
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`15(c) section above. Plaintiffs incorporate that discussion here, which demonstrates that Defendant
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`has not presented a contestable issue and that certification will not speed up this litigation.
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`* * *
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`Section 1292(b) “is not intended as a vehicle to provide early review of difficult rulings in
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`hard cases.” Horton v. Thompson, No. 88 C 6063, 1989 WL 153402, at *3 (N.D. Ill. Nov. 15,
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`1989). For the reasons discussed above, it is clear that Defendant has no valid grounds to pursue
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`an interlocutory appeal. The Court’s well-reasoned Order carefully considered Defendant’s
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`arguments and flatly and properly rejected each of them. See, e.g., Dkt. 272 at 4 (describing
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`Defendant’s arguments as “misplaced”); id. at 5 (rejecting Defendant’s attempts to “point the
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`finger at the Clearview defendants and then ignore its own conduct in using the Clearview
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`database”). There is no reason for the Court to certify its prior rulings for interlocutory review.
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`The Motion should be denied.
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`CONCLUSION
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`For the foregoing reasons, the Court should deny Defendant’s motion in its entirety.
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`Dated: March 9, 2022
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`By:
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`Respectfully submitted,
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`/s/ Scott R. Drury
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`SCOTT R. DRURY
`Interim Lead Class Counsel for Plaintiffs
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`Mike Kanovitz
`Scott R. Drury
`Andrew Miller
`LOEVY & LOEVY
`311 N. Aberdeen, 3rd Floor
`Chicago, Illinois 60607
`312.243.5900
`drury@loevy.com
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`Scott A. Bursor
`Joshua D. Arisohn
`BURSOR & FISHER, P.A.
`888 Seventh Avenue
`New York, NY 10019
`646.837.7150
`scott@bursor.com
`jarisohn@bursor.com
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`Frank S. Hedin (to be admitted pro hac vice)
`HEDIN HALL LLP
`Four Embarcadero Center, Suite 1400
`San Francisco, California 94104
`415.766.3534
`fhedin@hedinhall.com
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`Michael Drew
`NEIGHBORHOOD LEGAL LLC
`20 N. Clark Street #3300
`Chicago, Illinois 60602
`312.967.7220
`mwd@neighborhood-legal.com
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`Michael Wood
`Celetha Chatman
`COMMUNITY LAWYERS LLC
`20 N. Clark Street, Suite 3100
`Chicago, Illinois 60602
`312.757.1880
`mwood@communitylawyersgroup.com
`cchatman@communitylawyersgroup.com
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`Steven T. Webster
`Aaron S. Book
`WEBSTER BOOKK LLP
`300 N. Washington, Ste. 404
`Alexandria, Virginia 22314
`888.987.9991
`swebster@websterbook.com
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`Other Counsel for Plaintiffs
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`Case: 1:21-cv-00135 Document #: 306 Filed: 03/09/22 Page 13 of 13 PageID #:5973
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`CERTIFICATE OF SERVICE
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`I, Scott R. Drury, an attorney, hereby certify that, on March 9, 2022, I filed the foregoing
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`document using the Court’s CM/ECF system, which effected service on all counsel of record.
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`/s/ Scott R. Drury
`Counsel for Plaintiffs
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