Case: 1:21-cv-00135 Document #: 314 Filed: 03/18/22 Page 1 of 6 PageID #:6118
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`In re Clearview AI, Inc. Consumer Privacy Litig.,
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`MEMORANDUM OPINION AND ORDER
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`Plaintiffs brought a first amended consolidated class action complaint in this multi-district
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`Case No. 21-cv-0135
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`Judge Sharon Johnson Coleman
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`litigation alleging claims against defendant retailer Macy’s Retail Holdings, LLC (“Macy’s”) under the
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`Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”), along with claims under
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`California and New York law. On January 27, 2022, the Court granted in part and denied in part
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`Macy’s motion to dismiss brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
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`Before the Court is Macy’s motion to certify an interlocutory appeal under 28 U.S.C. § 1292(b)
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`challenging certain aspects of the Court’s January 27 ruling. For the following reasons, the Court, in its
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`discretion, denies Macy’s motion.
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`Background
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`The Court presumes familiarity with its prior rulings in this multi-district litigation, especially
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`the Court’s January 27, 2022 ruling. Plaintiffs allege that the Clearview defendants covertly scraped
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`billions of photographs of facial images from the internet and then used artificial intelligence algorithms
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`to scan the face geometry of each individual depicted in the photographs to harvest the individuals’
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`unique biometric identifiers and corresponding biometric information. The Clearview defendants then
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`created a searchable database containing plaintiffs’ biometrics that allowed users to identify unknown
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`individuals by uploading a photograph to the database.
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`Defendant Macy’s is a private corporation that purchased access to the Clearview database and
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`the biometrics contained therein to identify people whose images appeared in surveillance camera
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`Case: 1:21-cv-00135 Document #: 314 Filed: 03/18/22 Page 2 of 6 PageID #:6119
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`footage from Macy’s retail stores. Plaintiffs allege that Macy’s is part of the Clearview Client Class,
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`which they defined as follows:
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`All non-governmental, private entities – including publicly-traded companies – who
`purchased access to, or otherwise obtained, the Biometric Database and then utilized
`the database to run biometric searches at a time when the Biometrics of one or more of
`the named Plaintiffs had already been captured, collected or obtained, and subsequently
`stored, by the Clearview Defendants.
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`Plaintiffs contend that there are at least 200 companies in the Clearview Client Class.
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`In their first amended consolidated complaint, plaintiffs bring a BIPA claim against Macy’s
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`under 740 ILCS 14/15(b), which prohibits private entities from collecting, capturing, purchasing,
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`receiving through trade, or otherwise obtaining a person’s biometric identifiers or information without
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`first providing notice and consent. Plaintiffs also bring a BIPA claim under 740 ILCS 14/15(c), which
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`prohibits private entities from selling, leasing, trading, or profiting from a person’s biometric identifiers
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`or information. Further, plaintiffs alleged statutory and common law claims against Macy’s under
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`California and New York law.
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`Legal Standard
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`There are four statutory criteria the Court must consider in order to grant a § 1292(b) motion:
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`(1) there must be a question of law; (2) the question of law must be controlling; (3) the question of law
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`must be contestable; and (4) immediate appeal would materially advance the litigation. Kenosha Unified
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`Sch. Dist. No. 1 Bd. of Educ. v. Whitaker, 841 F.3d 730, 732 (7th Cir. 2016); Ahrenholz v. Board of Trs. of
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`Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000). “Question of law” in the context of § 1292(b) goes to
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`the “meaning of a statutory or constitutional provision, regulation, or common law doctrine.”
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`Ahrenholz, 219 F.3d at 676. Section 1292(b) gives district courts discretion when considering whether
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`to certify an interlocutory appeal. See Breuder v. Board of Trs. of Cmty. College Dist. No. 502, 888 F.3d 266,
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`271 (7th Cir. 2018). In the end, § 1292(b) requests for interlocutory appeal are for exceptional
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`circumstances. Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996).
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`Discussion
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`In the present § 1292(b) motion, Macy’s asks the Court to certify three questions, the first one
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`concerning Article III standing: “Whether, in light of the United States Supreme Court’s decision in
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`TransUnion, allegations of bare statutory violations of Illinois’ Biometric Information Privacy Act,
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`unaccompanied by allegations of actual harm, confer Article III standing.” There are several reasons
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`why Macy’s first question for interlocutory appeal does not meet § 1292(b)’s standards, as discussed
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`directly below.
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`In the January 2022 ruling, the Court concluded that “plaintiffs have sufficiently alleged that
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`defendant’s use of their private information without the opportunity to give their consent as required
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`under BIPA 15(b) caused them the concrete harm of violating their privacy interests in their biometric
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`data.” In short, the Court concluded that there were sufficient allegations of actual harm, unlike Macy’s
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`interlocutory question that there was no actual harm. Macy’s first question thus distorts the Court’s
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`application of the law to the facts.
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`Meanwhile, in concluding plaintiffs sufficiently alleged actual harm for their BIPA 15(b) claim,
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`the Court relied on the Seventh Circuit’s decision in Bryant v. Compass Group USA, Inc., 958 F.3d 617,
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`627 (7th Cir. 2020). In Bryant, the Seventh Circuit concluded that the plaintiff had Article III standing
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`for her BIPA 15(b) claim based on the disclosure of her private information without her consent, and
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`thus defendant “inflicted the concrete injury BIPA intended to protect against, i.e. a consumer’s loss of
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`the power and ability to make informed decisions about the collection, storage, and use of her
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`biometric information.” Id. at 627. The Supreme Court’s decision in TransUnion, LLC v. Ramirez, 141
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`S.Ct. 2190, 2200 (2021), bolsters the Bryant holding when it held, “[v]arious intangible harms can also be
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`concrete” including “reputational harms, disclosure of private information, and intrusion upon
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`seclusion.” Id. at 2204.
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`Nevertheless, Macy’s argues that TransUnion stands for the proposition that a victim of a privacy
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`harm can only suffer an injury-in-fact for Article III standing if the victim’s information is disseminated
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`to a third-party. The TransUnion decision does not support this proposition. Instead, in the context of
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`the Fair Credit Reporting Act (“FCRA”), the TransUnion Court concluded that certain class members
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`whose credit reports were not disseminated to third parties did not suffer a concrete injury-in-fact,
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`keeping in mind that “history and tradition offer a meaningful guide to the types of cases that Article
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`III empowers federal courts to consider.” Id. at 2204. As the TransUnion Court clarified, “with respect
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`to the concrete-harm requirement in particular, this Court’s opinion in Spokeo v. Robins indicated that
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`courts should assess whether the alleged injury to the plaintiff has a ‘close relationship’ to a harm
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`‘traditionally’ recognized as providing a basis for a lawsuit in American courts” and that this “inquiry
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`asks whether plaintiffs have identified a close historical or common-law analogue for their asserted
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`injury.” Id. In TransUnion, the Supreme Court analogized the FCRA violations to the tort of
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`defamation, which requires that the defamatory statement be published to a third party. Id. at 2209.
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`Thus, the plaintiffs whose reports were not disseminated to third parties did not allege a concrete
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`injury-in-fact under the FCRA.
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`Here, the Seventh Circuit analogized BIPA violations to common law privacy torts, which are
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`different common law torts than defamation. See Fox v. Dakkota Integrated Sys., LLC, 980 F.3d 1146,
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`1153 (7th Cir. 2020); Bryant, 958 F.3d at 627. As the Bryant court held: “Bryant was asserting a
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`violation of her own rights—her fingerprints, her private information—and that this is enough to show
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`injury-in-fact without further tangible consequences. This was no bare procedural violation; it was an
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`invasion of her private domain, much like an act of trespass would be. Id. at 624. Accordingly, the
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`Supreme Court’s FCRA ruling in TransUnion does not change the Seventh Circuit’s BIPA precedent.
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`In the end, there is no contestable question of law to appeal because under Seventh Circuit
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`precedent, a plaintiff has sufficiently alleged a BIPA 15(b) claim based on the harm associated with the
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`invasion of plaintiff’s private information. See Bryant, 958 F.3d at 619 (“a failure to follow section 15(b)
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`of the law leads to an invasion of personal rights that is both concrete and particularized.”). Therefore,
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`the Court denies Macy’s motion in this respect.
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`Next, Macy’s seeks to certify the following question for interlocutory appeal: “Whether, as a
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`matter of law, a company’s use of a biometric database for loss prevention suffices to allege ‘profit’
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`under Section 15(c) of BIPA.” To recap, a violation of BIPA 15(c) occurs when private entities “sell,
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`lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric
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`information.” Macy’s second question does not involve a question of law as required under § 1292(b)
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`because the Court did not construe the statutory meaning of “profit” under BIPA 15(c), which would
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`have amounted to a question of law for § 1292(b) purposes. See Ahrenholz, 219 F.3d at 676; see, e.g.,
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`Drnek v. City of Chicago, 205 F.Supp.2d 894, 900 (N.D. Ill. 2002) (Bucklo, J.). Rather, the Court
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`addressed the parties’ arguments whether plaintiffs had plausibly alleged Macy’s profited from plaintiffs’
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`biometric information.
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`To explain, in the January 2022 ruling, the Court concluded that plaintiffs plausibly alleged that
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`Macy’s used their biometric information for its own business purposes and profited from its use. From
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`these allegations, the Court stated that “it is reasonable to infer that plaintiffs’ biometric information
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`was necessary to Macy’s loss prevention business model and that this biometric information generated
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`profits by reducing the number of stolen goods.” Macy’s disagreement with how the Court applied the
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`facts as alleged to BIPA 15(c) is not grounds for an interlocutory appeal. See 880 S. Rohlwing Road, LLC
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`v. T&C Gymnastics, LLC, No. 16-cv-7650, 2017 WL 264504, at *6 (N.D. Ill. Jan. 19, 2017) (St. Eve, J.)
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`(“If a mere disagreement in how the law is applied to the facts of a particular case was all that was
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`needed for an interlocutory appeal,”… “every single denial of a motion to dismiss would present
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`grounds for interlocutory appeal.”) (citation omitted). The Court denies Macy’s motion in this respect.
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`Last, Macy’s asks the Court to certify a question in relation to plaintiffs’ California and New
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`York claims, namely, “whether California and New York statutes and common law protect the same set
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`of rights secured by BIPA.” Specifically, Macy’s contends plaintiffs are trying to extend BIPA to other
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`states. In making this argument, Macy’s ignores the Court’s consideration of the alleged facts in the
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`context of the California’s Unfair Competition Law, California’s commercial misappropriation of
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`likeness statute, the California common law right to publicity, and the right to privacy under the
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`California Constitution. Also, the Court considered the well-pleaded allegations in the context of New
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`York’s Civil Rights Act § 51.
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`At no point did the Court consider or conclude that plaintiffs’ California and New York claims
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`protected the same set of rights secured by BIPA—nor did plaintiffs make this argument in their briefs.
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`As such, Macy’s contention that plaintiffs’ New York and California claims are really BIPA claims
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`incognito is not a question of law for interlocutory appeal. See Lukis v. Whitepages Inc., 542 F.Supp.3d
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`831, 844 (N.D. Ill. 2020) (Feinerman, J.) (“the question of law must be a ‘pure’ question of law,
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`‘something the court of appeals could decide quickly and cleanly without having to study the record.’”)
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`(citation omitted).
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`Conclusion
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`For the foregoing reasons, the Court, in its discretion, denies Macy’s motion to certify an
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`interlocutory appeal under 28 U.S.C. § 1292(b) [283].
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`IT IS SO ORDERED.
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`Date: 3/18/2022
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`Entered: _____________________________
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` SHARON JOHNSON COLEMAN
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` United States District Judge
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