Case: 1:21-cv-00135 Document #: 308 Filed: 03/14/22 Page 1 of 18 PageID #:5979
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`In re: Clearview AI, Inc. Consumer
`Privacy Litigation
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`Case No. 1:21-cv-00135
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`Hon. Sharon Johnson Coleman
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`Hon. Maria Valdez
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`CLEARVIEW DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR
`MOTION FOR RECONSIDERATION AND CLARIFICATION OF POINTS IN THE
`COURT’S FEBRUARY 14, 2022 MEMORANDUM OPINION AND ORDER AND
`PARTIAL MOTION TO DISMISS COUNTS 3-4, 8-12, AND 14 FOR LACK OF
`SUBJECT-MATTER JURISDICTION
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`Case: 1:21-cv-00135 Document #: 308 Filed: 03/14/22 Page 2 of 18 PageID #:5980
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`Defendants Clearview AI, Inc. (“Clearview”), Rocky Mountain Data Analytics LLC
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`(“RM”), Hoan Ton-That, Richard Schwartz, and Thomas Mulcaire (collectively, the “Clearview
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`Defendants”), through their counsel, respectfully submit this memorandum of law in support of
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`their motion for reconsideration of the Court’s February 14, 2022 Memorandum Opinion and
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`Order (Dkt. 279) (the “Order”) and partial motion to dismiss Counts 3-4, 8-12, and 14 of the
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`Complaint (Dkt. 116) (“Compl.”) for lack of subject-matter jurisdiction.
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`INTRODUCTION
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`The Clearview Defendants respectfully request that the Court reconsider two findings in
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`the MTD Order: that (i) Plaintiffs have Article III standing to bring the state-law claims in Counts
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`8-12 and 14 and (ii) Defendants Thomas Mulcaire and RM failed to adequately raise and/or waived
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`their personal-jurisdiction defenses at the motion to dismiss stage. The Clearview Defendants
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`understand that motions for reconsideration serve the limited purpose of correcting “manifest
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`errors of fact or law” but respectfully submit that these holdings meet that standard.
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`In the MTD Order, the Court found two bases for Article III standing in connection with
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`the state-law claims in Counts 8-12 and 14. First, the Court held that the “nonconsensual taking of
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`plaintiffs’ private information is a concrete harm because the possibility of misuse is ever present.”
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`(Order at 15.) Second, the Court concluded that Plaintiffs “sufficiently alleged that defendants’
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`disclosure of their private information without their consent caused them the concrete harm of
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`violating their privacy interests in their biometric data.” (Id.) The Clearview Defendants
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`respectfully submit that the first rationale constitutes “manifest error” because it is contrary to
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`controlling precedent in Thornley v. Clearview AI, Inc., which held that virtually identically
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`situated plaintiffs lacked Article III standing, and TransUnion LLC v. Ramirez, which held that
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`plaintiffs lacked standing to bring claims based on a theoretical risk of future harm.
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`As to the second rationale, the Court relied on an allegation Plaintiffs know is demonstrably
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`false—that the Clearview Defendants have disclosed Plaintiffs’ facial vectors1 to third-parties
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`without Plaintiffs’ consent. The Court’s acceptance of this allegation as true was not inappropriate,
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`since the Clearview Defendants’ motion to dismiss was a facial challenge requiring the Court to
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`treat all well-pled allegations as true. But since challenges to subject-matter jurisdiction may raise
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`facts outside the pleadings, the Clearview Defendants now move for a second time pursuant to
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`Fed. R. Civ. P. 12(b)(1) to dismiss these claims for lack of Article III standing, this time citing
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`facts outside the pleadings that have been in the record for almost two years. In light of this
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`evidence, Plaintiffs cannot establish standing for Counts 8-12 and 14. For the same reasons,
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`Plaintiffs lack Article III standing to bring their § 15(c) BIPA claims in Counts 3-4, since they
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`conflict with Thornley/TransUnion and are based on demonstrably untrue allegations.
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`The Clearview Defendants also submit that the Court’s waiver holdings as to Mr. Mulcaire
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`and RM’s personal-jurisdiction and government-contractor defenses constitute “manifest error.”
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`On personal jurisdiction, the Court found waiver because the defense was made in a “cursory
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`footnote.” The Clearview Defendants submit that this holding was “manifest error” because,
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`although the argument was brief, it was fully developed and cited 15 pages of briefing on this
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`topic. Under well-established law, this is sufficient to avoid waiver. On the government-contractor
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`defense, the Court found waiver because the defense was supposedly raised for the first time on
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`reply. The Clearview Defendants submit that this holding was “manifest error” because the
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`argument was made in response to a new argument in Plaintiff’s opposition and relied on a key
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`case decided after the Clearview Defendants filed their motion to dismiss. On the merits, Mr.
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`1 Plaintiffs allege that facial vectors are “biometric information” or “biometric identifiers” as the terms are
`used in BIPA. The Clearview Defendants dispute this allegation but accept it as true solely for this motion.
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`2
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`Mulcaire and RM must be dismissed, since all allegations against them concern a single transaction
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`with a government entity, which is facially exempt from BIPA, leaving no basis for jurisdiction.
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`Finally, the Clearview Defendants seek clarification that Mr. Mulcaire has been dismissed.
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`The parties appear to interpret the MTD Order differently on this point and clarification is needed.
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`BACKGROUND
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`A.
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`The Court Finds That Plaintiffs Plausibly Alleged Article III Standing.
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`On April 9, 2021, Plaintiffs filed their first consolidated complaint, alleging violations of
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`§§ 15(b)-(e) of BIPA by Clearview, Hoan Ton-That, and Richard Schwartz, but asserting no claims
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`against Mr. Mulcaire or RM. Throughout the complaint, Plaintiffs alleged that Clearview disclosed
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`Plaintiffs’ biometric information to third-parties. (See Dkt. 29 ¶¶ 13, 20, 30, 42, 52-53, 56, 58, 60-
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`61, 89, 111, 118, 177, 193, 198, 201, 202-204, 206.) On the same day, Plaintiffs moved for a
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`preliminary injunction, which required the parties to submit evidence on this topic, all of which
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`showed that Clearview never discloses its facial vectors. For example, Clearview’s General
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`Counsel, Thomas Mulcaire, submitted a declaration in which he stated under oath that:
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` “Clearview does not provide the . . . facial vectors of any individuals to users of the app.”
`Mulcaire Decl. (Dkt. 43-1) ¶ 14.
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` “Under no circumstances does Clearview sell, lease, trade, disseminate, disclose, or
`provide access to any facial vectors to its customers.” Id. ¶ 15.
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` “At no point in using Clearview’s app, do any Clearview customers collect, capture,
`purchase, receive, or obtain any facial vector related to any individual. Clearview’s customers are
`never able to see, access, or control in any way any facial vectors of any individual.” Id. ¶ 16.2
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`Plaintiffs had an opportunity to question Mr. Mulcaire about this testimony during a full-day
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`deposition less than two weeks later, during which Mr. Mulcaire testified under oath that:
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`2 In opposition to the Mutnick plaintiffs’ motion for preliminary injunction, Mr. Mulcaire submitted a
`similar declaration in May 2020 (Mutnick Dkt. 56-2) (Kurtzberg Decl. Ex. 1) that likewise stated that
`“Clearview does not . . . disseminate . . . any biometric information to its customers.” Id. ¶ 10.
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`3
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` “[T]he user would never see the facial vectors. They would—it would just be presented
`with the photos and links that are, you know, responsive to their search.” Mulcaire Dep. (Kurtzberg
`Decl. Ex. 2) at 182.
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` Q: “You made an affirmative statement here that, ‘Clearview does not sell, lease, trade, or
`disseminate any biometric information to its customers,’ and I’m asking when you use that phrase,
`what did you mean?” A: “I meant that we only sell photos—or we only provide [photos] and
`URLs to our customers, none of which are biometric information by any conceivable stretch of the
`imagination.” Id. at 220.
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` “You know, I think it’s important to understand that Clearview neither provides facial
`vectors nor anything that could be conceivably termed as biometric information, you know, via
`sale, lease, trade, dissemination or disclosure, you know, to its users.” Id. at 225.
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`By contrast, Plaintiffs presented no evidence that Clearview has ever disclosed Plaintiffs’—or
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`anyone else’s—biometric information. Ultimately, the Court denied Plaintiffs’ motion because
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`Plaintiffs had failed to establish irreparable harm. (See Dkt. 105.)
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`On May 25, 2021, Plaintiffs filed a second complaint, again alleging violations of §§ 15(b)-
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`(e) of BIPA, but adding Macy’s as a Defendant, along with Mr. Mulcaire and RM based on a single
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`unconsummated alleged transaction with the Ill. Secretary of State. (See, e.g., Dkt. 90 ¶¶ 14-15.)
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`Although Mr. Mulcaire had testified less than two weeks earlier that Clearview never discloses
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`facial vectors to its customers, Plaintiffs repeated this allegation no fewer than 18 times in the
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`complaint. (See id. ¶¶ 11, 18, 28, 40, 48-49, 52, 54, 56-57, 85, 107, 114, 130, 135, 138-141, 143.)
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`That month, Plaintiffs filed a motion to intervene in the Thornley action, which was then
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`pending in Illinois state court. In opposing that motion, the Thornley Plaintiffs stated—based in
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`part on Mr. Mulcaire’s declaration and in part on discovery in Thornley—that they believed there
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`was no good-faith basis to allege (as Plaintiffs have here) that Clearview disclosed biometric
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`information in Illinois. (See Kurtzberg Decl. Ex. 3 (Thornley Pl.’s’ Opp. Brief) at 9 (“[C]ritically,
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`Plaintiffs do not see any good-faith basis for alleging that Clearview disclosed or disseminated
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`their biometric data to users of Clearview’s facial recognition software application in Illinois.”).)
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`Four days later, Macy’s filed a motion to dismiss, representing to the Court that Clearview
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`never disclosed biometric information to Macy’s. See Dkt. 112 (“[T]he relief Plaintiffs seek
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`against Macy’s has no bearing on their alleged need to protect their biometric information,
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`precisely because Macy’s does not possess, and has never possessed, this information.”).
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`Despite the lack of evidence supporting the claim that Clearview has ever disclosed
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`biometric information—and the uncontradicted evidence to the contrary in the form of Mr.
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`Mulcaire’s Mutnick declaration and deposition testimony, Macy’s representations to the Court,
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`and the statements by the Thornley plaintiffs—on June 29, 2021, Plaintiffs filed a third complaint,
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`alleging violations of §§ 15(a)-(e) of BIPA and various state privacy laws, again repeatedly
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`alleging that Clearview disclosed Plaintiffs’ biometric information to third-parties. (See, e.g.,
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`Dkt. 116 ¶¶ 14, 31, 43, 54-55, 58, 60, 62-63, 91, 113, 120, 178-179, 195, 200, 203-204, 206, 208.)
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`In their motion to dismiss briefing, the Clearview Defendants argued that, accepting
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`Plaintiffs’ allegations as true, Plaintiffs lacked standing to bring certain state-law claims because
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`the Seventh Circuit had recently rejected the argument that the “potential injury from the sale (or
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`lease, etc.) of [plaintiff’s] data” is sufficient for Article III standing. (See Dkt. 149 at 15-16 (citing
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`Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1247 (7th Cir. 2021).) On February 14, 2022, the
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`Court found Article III standing because the “nonconsensual taking of plaintiffs’ private
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`information is a concrete harm because the possibility of misuse is ever present.” (Order at 15.)
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`The Court also held, relying on Plaintiffs’ allegations that the Clearview Defendants have
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`disclosed Plaintiffs’ facial vectors, that Plaintiffs plausibly “alleged that defendants’ disclosure of
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`their private information without their consent caused them the concrete harm of violating their
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`privacy interests in their biometric data.” Id. Because the motion was a facial challenge to standing,
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`the Court did not look beyond the allegations in the complaint. Discovery has been proceeding for
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`almost a year and the Clearview Defendants have produced approx. 140,000 pages of documents,
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`none of which supports Plaintiffs’ claim that Clearview discloses any biometric data to anyone.
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`B.
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`The Court Finds Mulcaire And RM Waived Their Personal-Jurisdiction Defenses.
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`In the Clearview Defendants’ motion to dismiss, Mr. Mulcaire and RM cited 15 pages of
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`briefing from Mutnick v. Clearview, arguing that the Court lacked personal jurisdiction over them
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`because there were no allegations of wrongful conduct in Illinois. (Dkt. 88 at 4 n.2.) The Clearview
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`Defendants repeatedly raised this defense in subsequent briefing before the Court, including a
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`February 2, 2022 supplemental authority letter (see Dkt. 275) and numerous other filings (see, e.g.,
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`Dkt. 289; Dkt. 277; Dkt. 220.) In ruling on this issue, the Court declined to reach the merits and
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`instead found that the argument had been waived. (Order at 11 n.1.)
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`Mr. Mulcaire and RM also argued that Plaintiffs failed to allege wrongdoing by Mr.
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`Mulcaire or RM in Illinois. (Dkt. 88 at 5-6.) Plaintiffs rebutted this argument by alleging, for the
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`first time, that they were “injur[ed]” by the relationship RM (of which Mr. Mulcaire is VP) had
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`with its “single client” in Illinois (the Ill. Secretary of State). (Dkt. 134 at 3-4.) In reply, Mr.
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`Mulcaire and RM argued that the Court lacked personal jurisdiction over them because the “single”
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`supposedly relevant nexus to Illinois was with a government entity, which made it facially exempt
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`from BIPA under the government-contractor exception. (See Dkt. 149 at 1-2 & n.3, 5-6.)
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`To support this argument, Mr. Mulcaire and RM cited Thornley v. CDW-Government, LLC,
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`which was issued after the Clearview Defendants submitted their motion to dismiss and held that
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`the government-contractor exemption applies to anyone “a state agency or local unit of
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`government engages to furnish materials or provide services concerning biometric identifiers,”
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`which the Clearview Defendants argued applied to RM’s relationship with the Ill. Secretary of
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`State. Although this argument was made in response to a new argument in Plaintiffs’ opposition,
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`relied on new authority, and Mr. Mulcaire and RM can raise this same defense at any time in a
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`6
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`motion for a judgment on the pleadings, the Court ruled that Mr. Mulcaire and RM had waived
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`this argument because it was “made for the first time in their reply brief.” (Order at 13.)
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`I.
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`Legal Standard.
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`ARGUMENT
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`Motions for reconsideration should be granted to “correct manifest errors of law or fact,”
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`Jackson v. Thornton Twp. High Sch. Dist. 205 Bd. of Educ., 1:17-cv-07195, at *1 (Dkt. 37) (N.D.
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`Ill. Dec. 26, 2018) (Coleman, J.), including the “failure to recognize controlling precedent.”
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`Czosnyka, et al. v. Gardiner, et al., 1:21-cv-03240, at *2 (Dkt. 37) (N.D. Ill. Jan. 12, 2022)
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`(Coleman, J.). To prevail on a motion for reconsideration, a party must show that “the court has
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`overlooked and thus failed to consider an aspect of the law presented by the [moving party] which,
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`if left unredressed, would result in a clear error or cause manifest injustice.” Jackson, Dkt. 37.
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`Subject-matter jurisdiction may be challenged at any time before final judgment. Grupo
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`Dataflux v. Atlas, 541 U.S. 567, 571 (2004). Challenges to subject-matter jurisdiction can be facial
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`or factual. Apex Dig. v. Sears, 572 F.3d 440, 443 (7th Cir. 2009). While facial challenges “require
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`only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of
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`subject matter jurisdiction,” factual challenges are brought where “the complaint is formally
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`sufficient but the contention is that there is in fact no subject matter jurisdiction.” Id. at 444. Where
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`a defendant “raises a factual challenge to standing, the plaintiff bears the burden of proving
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`standing by a preponderance of the evidence.” Laurens v. Volvo, 868 F.3d 622, 624 (7th Cir. 2017).
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`And because subject-matter jurisdiction “cannot be conferred by consent of the parties, if the facts
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`place the district court on notice that the jurisdictional allegation probably is false, the court is
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`duty-bound to demand proof of its truth.” Id.
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`II.
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`Plaintiffs Do Not Have Standing To Bring The State-Law Claims In Counts 8-12 And
`14, Or The § 15(c) BIPA Claims In Counts 3-4.
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`The Court held that Plaintiffs have Article III standing to bring the state-law claims in
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`Counts 8-12 and 14 because (i) the “nonconsensual taking of plaintiffs’ private information is a
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`concrete harm because the possibility of misuse is ever present” and (ii) Plaintiffs “sufficiently
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`alleged that defendants’ disclosure of their private information without their consent caused them
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`the concrete harm of violating their privacy interests in their biometric data.” (Order at 15.) The
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`first basis is contrary to controlling precedent, and thus constitutes “manifest error,” while the
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`second basis rests on a demonstrably false allegation that cannot support Article III standing.
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`A.
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`The Court’s Holding That Plaintiffs Have Standing To Bring The State-Law
`Claims In Counts 8-12 And 14 Is Contrary To Controlling Precedent.
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`The Clearview Defendants respectfully submit that the finding of Article III standing for
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`Counts 8-12 and 14 conflicts with the Seventh Circuit’s decision in Thornley v. Clearview AI, Inc.,
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`984 F.3d 1241 (7th Cir. 2021), and the Supreme Court’s decision in TransUnion LLC v. Ramirez,
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`141 S. Ct. 2190 (2021). The “failure to recognize controlling precedent” is a form of “manifest
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`error” justifying reconsideration. Gardiner, 1:21-cv-03240, at *2.
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`Although Defendants cited Thornley in their briefing (Dkt. 149 at 16), the Court did not
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`address its impact. We submit that the holding that the “nonconsensual taking of plaintiffs’ private
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`information is a concrete harm because the possibility of misuse is ever present,” (Order at 15),
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`cannot be reconciled with Thornley, where the Seventh Circuit found no standing where plaintiffs
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`alleged they “suffered no injury from Defendant’s violation of § 15(c) of BIPA other than statutory
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`aggrievement.” 984 F.3d at 1246-49. Plaintiffs in that case clearly defined what they meant by “no
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`injury . . . other than statutory aggrievement” by proposing the following class:
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`All current Illinois citizens whose biometric identifiers or biometric information were,
`without their knowledge, included in the Clearview AI Database at any time from January
`1, 2016 to January 17, 2020 (the “Class Period”) and who suffered no injury from
`Defendant’s violation of Section 15(c) of BIPA other than statutory aggrievement in that
`there is no evidence that during the Class Period: (i) a photograph of the Class member
`was ever uploaded to the Clearview AI App by any user of the Clearview AI App; (ii) any
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`8
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`user of the Clearview AI App sought to use the Clearview AI App and Database to identify
`them; and (iii) their biometric identifiers or biometric information in the Clearview AI
`Database were never disclosed to any users of the Clearview AI App or any third-parties.
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`(Compl. at ¶¶ 7-8, Thornley v. Clearview AI, Inc., 2020 CH 04348 (Cir. Ct. Cook Cnty.
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`May 27, 2020) (the “Thornley Compl.”) (emphasis added).)
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`In an effort to litigate in federal court, Clearview took a similar position to the one in the
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`MTD Order—that the “potential injury from the sale (or lease, etc.) of [plaintiffs’] data” was
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`enough to give the proposed class standing. (See Dkt. 149 at 15-16.) The Seventh Circuit, however,
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`rejected this argument, finding no standing because plaintiffs “described only a general, regulatory
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`violation, not something that is particularized to them and concrete.” Thornley, 984 F.3d at 1248.
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`Here, Plaintiffs are similarly situated to the Thornley plaintiffs because, for Counts 8-12
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`and 14, Plaintiffs allege only that the Clearview Defendants collected photos of them from the
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`Internet, added them to the Clearview database, and created facial vectors from them. (Compl. at
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`¶¶ 34-45, 47-48.) These allegations are virtually identical to those in Thornley, where the plaintiffs
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`alleged that their photos were collected without permission and used to create facial vectors that
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`were included in Clearview’s database for use in potential searches. (See Thornley Compl. at ¶¶ 7-
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`8.) But because the Thornley plaintiffs claimed that (i) their photos were never uploaded to the
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`Clearview app for searches; (ii) no user of the Clearview app tried to identify them using the app;
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`and (iii) their biometric information was never disclosed, the Seventh Circuit concluded that they
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`lacked the type of injury-in-fact needed for Article III standing. Thornley, 984 F.3d at 1248.
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`The Court’s holding that “the nonconsensual taking of plaintiffs’ private information is a
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`concrete harm because the possibility of misuse is ever present” thus conflicts with Thornley,
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`where the court found no standing despite the same alleged “nonconsensual taking of plaintiffs’
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`private information” and “possibility of misuse.” See Thornley, 984 F.3d at 1248-49. Indeed, if
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`this Court’s reasoning were applied to Thornley, a different result than the one reached by the
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`9
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`Seventh Circuit would be necessary. This is a “manifest error of law” that should be corrected.
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`The Court’s holding is also contrary to TransUnion, where the Supreme Court held that
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`plaintiffs whose incorrect credit reports could have been, but were not, shared with third-parties
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`did not have Article III standing because they had alleged only a theoretical risk of future harm.
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`TransUnion, 141 S. Ct. at 2209. That is no different than the “possibility of misuse”—including
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`hypothetical risks of future identity theft and voluntary withdrawal from certain transactions—
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`identified by this Court as a basis for standing. (Order at 15.) This type of alleged harm is too
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`speculative and theoretical to give rise to standing under TransUnion. The Court’s holding to the
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`contrary is thus in conflict with controlling precedent, making reconsideration appropriate.3
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`B.
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`Plaintiffs’ Allegation That They Have Standing To Bring The State-Law
`Claims In Counts 8-12 And 14 Lacks Factual Support.
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`The Court’s second basis for finding Article III standing—that Plaintiffs “sufficiently
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`alleged that defendants’ disclosure of their private information without their consent caused them
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`the concrete harm of violating their privacy interests in their biometric data”—is based on
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`demonstrably false allegations. Accordingly, Plaintiffs have no standing to bring Counts 8-12 and
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`14, and these Counts should be dismissed for lack of subject-matter jurisdiction.
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`Plaintiffs have been on notice since at least May 6, 2020, that Clearview has never
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`“disclosed” Plaintiffs’ biometric information, since on that date, Mr. Mulcaire submitted a
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`declaration testifying that Clearview does not “disseminate any biometric information to its
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`customers.” Mulcaire Decl. (Kurtzberg Decl. Ex. 1) ¶ 10. Mr. Mulcaire submitted another
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`declaration, on April 30, 2021, testifying that Clearview has never “disclosed” Plaintiffs’ facial
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`3 Although the Court cited TransUnion for the proposition that “‘[v]arious intangible harms can also be
`concrete,’ including ‘reputational harms, disclosure of private information, and intrusion upon seclusion,’”
`(Order at 14), the Court did not address TransUnion’s core holding—that individuals whose credit reports
`had not been disclosed to third-parties had not suffered a concrete harm and thus lacked standing.
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`10
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`vectors, nor does it “provide” facial vectors to “users of the app” or “disseminate, disclose, or
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`provide” facial vectors to Clearview’s customers. Mulcaire Decl. (Dkt. 43-1) ¶¶ 14-15. Mr.
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`Mulcaire also testified that “Clearview’s customers are never able to see, access, or control in any
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`way any facial vectors of any individual.” Id. ¶ 16.
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`This testimony has never been challenged with evidence even suggesting it is false. It has,
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`however, been subjected to cross-examination in a deposition, where Mr. Mulcaire testified that
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`Clearview’s customers “would never see the vectors” and would see only photos and URLs,
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`neither “of which are biometric information by any conceivable stretch of the imagination.”
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`Mulcaire Dep. (Kurtzberg Decl. Ex. 2) at 182, 220. Mr. Mulcaire also reiterated that “Clearview
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`neither provides facial vectors nor anything that could be conceivably termed as biometric
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`information, you know, via sale, lease, trade, dissemination or disclosure, you know, to its users.”
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`Id. at 225. Nothing in Plaintiffs’ questioning cast any doubt on this testimony.
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`The Plaintiffs in Thornley reviewed this testimony and deposed Mr. Mulcaire themselves
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`and drew the only conclusion that could reasonably be drawn—that they did “not see any good-
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`faith basis for alleging that Clearview disclosed or disseminated their biometric data to users of
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`Clearview’s facial recognition software application in Illinois.” (Kurtzberg Decl. Ex. 3) at 9.
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`But Plaintiffs in this case doubled down. On May 25, 2021, they filed a second complaint,
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`repeatedly alleging, despite overwhelming evidence to the contrary, that the Clearview Defendants
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`“disclosed” Plaintiffs’ “[b]iometrics.” (See, e.g., Dkt. 90 ¶ 11.) About a month later, they filed the
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`operative complaint continuing to allege that Clearview “disclosed” Plaintiffs’ biometric
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`information. (See, e.g., Compl. ¶ 14.) There is not and will never be any support for these
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`allegations because they are false. Plaintiffs had no basis to make these allegations when they filed
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`their Complaint and, after almost a year of discovery, have no basis to make them now.
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`11
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`Since the Clearview Defendants have produced evidence challenging standing, Plaintiffs
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`now bear the burden of proving that standing exists. See, e.g., Laurens, 868 F.3d at 624 (“If a
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`defendant raises a factual challenge to standing, the plaintiff bears the burden of proving standing
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`by a preponderance of the evidence.”). Plaintiffs cannot satisfy this burden.
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`C.
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`Plaintiffs’ § 15(c) BIPA Claims In Counts 3-4 Suffer The Same Shortcomings.
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`While the Clearview Defendants did not move for dismissal of Plaintiffs’ § 15(c) claims,
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`dismissal of those claims is appropriate because Plaintiffs lack standing under Thornley and there
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`is no factual basis to support them. In Thornley, the Seventh Circuit rejected Clearview’s argument
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`that “Plaintiffs’ allegations that Clearview sold access to their biometric data establishes Article
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`III standing without the need for additional allegations.” Clearview’s App. Br. at 9, Thornley v.
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`Clearview AI, Inc., 20-3249 (7th Cir. Dec. 9, 2020). Although the Thornley plaintiffs took steps to
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`avoid litigating in federal court by expressly alleging they suffered no harm “other than statutory
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`aggrievement,” Plaintiffs are situated virtually identically to the Thornley plaintiffs. And Plaintiffs
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`similarly lack evidentiary support for the claims that Clearview “distributed” Plaintiffs’ biometric
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`information, since the evidence actually shows that Clearview provides its users with photos and
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`URLs, not any alleged “biometric data.” Plaintiffs thus also lack standing to bring Counts 3-4.
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`III. The Court’s Conclusion That Defendants Jack Mulcaire And RM Waived Their
`Personal-Jurisdiction Arguments Constitutes “Manifest Error.”
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`The Complaint alleges no wrongful conduct linking Mr. Mulcaire or RM to Illinois. The
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`only evidence Plaintiffs cite to support their theory that Mr. Mulcaire and RM violated BIPA is a
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`single contract between RM and the Ill. Secretary of State. (See, e.g., Compl. ¶¶ 17-18.) Although
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`Mr. Mulcaire and RM argued that this connection is insufficient to confer personal jurisdiction,
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`(see Dkt. 88 at 4 n.2), the Court found that Mr. Mulcaire and RM waived this argument because it
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`was made in a “cursory footnote.” (Order at 11 n.2).
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`Case: 1:21-cv-00135 Document #: 308 Filed: 03/14/22 Page 14 of 18 PageID #:5992
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`Mr. Mulcaire and RM respectfully submit that this holding was “manifest error,” because
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`although the argument was brief, it was fully developed. See Stelmokas v. Kodzius, 460 Fed. App’x
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`600, 605 (7th Cir. 2012) (“[Plaintiff’s] argument is short and straightforward, but that does not
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`make it ‘perfunctory’”); Digan v. Euro-Am. Brands, LLC, 2012 WL 668993, at *2 (N.D. Ill. Feb.
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`29, 2012) (“[E]ven a ‘woefully underdeveloped’ argument is not necessarily forfeited when the
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`district court knew and understood the argument the party intended to make”). Indeed, since Mr.
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`Mulcaire and RM were simply calling attention to the lack of evidence of wrongdoing, little more
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`could have been said. And although Mr. Mulcaire and RM included the argument in a footnote,
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`they cited to substantial authority on this point, including 15 pages of briefing. See (Dkt. 88 at 4
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`n.2 (citing to Mutnick v. Clearview AI, Inc., 20-cv-512, ECF 46 at 6-12, ECF 70 at 9-16).); see
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`also Arana v. Colvin, 2015 WL 4506848, at *3 (N.D. Ill. July 24, 2015) (finding no waiver where
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`a party “cited to 13 pages from the record to support his arguments in his opening brief”).
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`The Court also held that Mr. Mulcaire and RM waived their government-contractor defense
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`because this argument was supposedly raised for the first time on reply. (Order at 13.) Mr. Mulcaire
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`and RM submit that this holding constitutes “manifest error” because the argument (i) was raised
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`in response to a new argument in Plaintiffs’ opposition and (ii) relied on a key decision issued after
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`they filed their motion to dismiss.
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`First, in their motion to dismiss, Mr. Mulcaire and RM argued that Plaintiffs alleged no
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`wrongdoing by Mr. Mulcaire or RM whatsoever. (Dkt. 88 at 5-6.) Plaintiffs rebutted this argument
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`in their opposition by alleging, for the first time, that they were “injur[ed]” by RM’s “single client”
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`relationship in Illinois (with the Ill. Secretary of State). (Dkt. 134 at 3-4.) In response to this new
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`argument, Mr. Mulcaire and RM argued on reply that the Court lacked personal jurisdiction over
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`them because the “single” alleged Illinois relationship was with a government entity, thus
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`Case: 1:21-cv-00135 Document #: 308 Filed: 03/14/22 Page 15 of 18 PageID #:5993
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`exempting them from BIPA liability under the government-contractor exemption. (Dkt. 149 at 1-
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`2 & n.3, 5-6) (citing BIPA § 25(e).) Because Mr. Mulcaire and RM made this argument in response
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`to a new argument in Plaintiffs’ opposition, Mr. Mulcaire and RM submit that a finding of waiver
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`constitutes “manifest error.” See, e.g., Batiste v. Dart, 2011 WL 4962945, at *3 (N.D. Ill. Oct. 19,
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`2011) (“When a non-movant raises new arguments in response to a motion, courts have allowed
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`the movant to respond in the reply brief.”); Jackson v. Worldwide Flight Servs., Inc., 2004 WL
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`2203430, at *1 n.2 (N.D. Ill. Sept. 29, 2004) (Plaintiff “claims that Defendant’s reply brief
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`contained new factual allegations and case law citations. The Court finds that Defendant’s reply
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`brief contained only reasonable responses to arguments raised in Plaintiff's opposition brief”).
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`Second, Mr. Mulcaire and RM relied on a decision issued after they filed their motion to
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`dismiss. That decision—Tho