Case: 1:21-cv-00135 Document #: 321 Filed: 04/07/22 Page 1 of 18 PageID #:6220
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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 CLEARVIEW DEFENDANTS’ MOTION FOR
`RECONSIDERATION AND CLARIFICATION OF THE COURT’S FEBRUARY 14,
`2022 MEMORANDUM AND OPINION ORDER AND PARTIAL MOTION TO DISMISS
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`INTRODUCTION
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`The Court’s twenty-three page Memorandum Opinion and Order (the “Order”) regarding
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`the motion to dismiss of Defendants Clearview AI, Inc. (“Clearview”); Hoan Ton-That; Richard
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`Schwartz; Rocky Mountain Data Analytics LLC (“Rocky Mountain”); and Thomas Mulcaire
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`(collectively, “Defendants”) reflects the Court’s careful consideration of Defendants’ motion. See
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`Dkt. 279. In the Order, the Court largely rejected Defendants’ arguments. See id. Unwilling to
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`accept defeat, Defendants now accuse: (a) the Court of having made multiple “manifest errors of
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`law”; and (b) Plaintiffs of having made false allegations to support jurisdiction. The accusations
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`are unfounded. It is Defendants who made a manifest error in filing the present motion.
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`Defendants’ motion for reconsideration fails because the Court did not commit any
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`manifest errors of law. The Court properly determined that: (a) Plaintiffs have standing to assert
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`their state claims; and (b) Defendants waived their personal jurisdiction and government-
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`contractor arguments as to Mulcaire and Rocky Mountain. Defendants do not come close to
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`meeting their heavy burden in seeking reconsideration.
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`1
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`Defendants’ renewed motion to dismiss based on lack of jurisdiction also fails. As a
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`threshold matter, the motion only addresses one of the bases upon which the Court found Plaintiffs
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`have standing. Because the motion does not allege that there is no federal jurisdiction, it necessarily
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`lacks merit. Moreover, contrary to their contention, Defendants do not raise a proper factual
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`challenge to jurisdiction. The motion is premised on inadmissible and incompetent evidence. Even
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`if the factual challenge were proper, the actual evidence in the case shows that Defendants
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`disclosed Plaintiffs’ and class members’ biometric information. Indeed, such disclosure is the
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`foundation of Defendants’ entire business model.
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`Finally, while it is clear that the Court did not dismiss Mulcaire from this action,
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`Defendants contend clarification is needed. Plaintiffs respectfully submit the Court should make
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`clear that Mulcaire has not been dismissed from the case.
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`ARGUMENT
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`I.
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`The Court Should Deny the Motion for Reconsideration Because It Did Not Commit
`Any Manifest Error of Law.
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`A.
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`Legal Standards.
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`“A motion to reconsider is only appropriate to ‘correct manifest errors of law or fact, to
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`present newly discovered evidence, or where there has been an intervening and substantial change
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`in the controlling law since the submission of the issues to the court.’” O’Connor v. Bd. of Educ.
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`of City of Chicago, No. 14-cv-10263, 2018 WL 11305168, at *1 (N.D. Ill. May 30, 2018) (quoting
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`Sperling & Slater, P.C. v. Hartford Cas. Ins. Co., No. 12 C 761, 2012 WL 6720611, at *2 (N.D.
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`Ill. Dec. 27, 2012)). A court should grant a motion to reconsider only in rare circumstances. Id.
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`Thus, a party moving for reconsideration bears a heavy burden. Id.
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`2
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`B.
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`The Court Did Not Commit a Manifest Error of Law in Finding that Plaintiffs
`Have Article III Standing to Assert Their State Claims.1
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`Defendants contend the Court committed a manifest error of law in finding Plaintiffs had
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`standing to assert their state claims2 because the Court’s ruling contradicts Thornley v. Clearview
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`AI, Inc., 984 F.3d 1241 (7th Cir. 2021), and TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021).
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`Dkt. 308 at 11.3 Not so.
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`As a threshold matter, Defendants have waived any Thornley-based argument. Defendants
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`first raised the argument in their reply in support of their motion to dismiss and, even then, only
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`did so in a perfunctory and undeveloped manner. See Dkt. 149 at 22; see also White v. United
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`States, 8 F.4th 547, 552 (7th Cir. 2021). Absent waiver, the argument still fails. As this Court
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`previously has found, the plaintiffs in Thornley specifically alleged that “the class members did
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`not suffer any injury under § 15(c) ‘other than statutory aggrievement.’” Thornley v. Clearview
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`AI, Inc., No. 20-cv-3843, 2020 WL 6262356, at *2 (N.D. Ill. Oct. 23, 2020) (emphasis added). On
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`that record, this Court held that “plaintiffs did not allege an injury-in-fact, and thus Clearview has
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`failed to establish Article III standing.” Id.
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`In affirming this Court’s decision, the Seventh Circuit noted that “allegations matter” – i.e.,
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`“[o]ne plaintiff may fail to allege a particularized harm to himself, while another may assert one.”
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`Thornley, 984 F.3d at 1246. The Seventh Circuit further noted that the Thornley “complaint
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`1 In their initial motion to dismiss, Defendants did not seek dismissal of Counts 3 and 4 of the operative
`complaint which allege violations of § 15(c) of Illinois’ Biometric Information Privacy Act (“BIPA”), 740
`Ill. Comp. Stat. 14/1, et seq. Defendants’ bases for seeking dismissal of those counts in their present motion
`mirror their arguments for seeking reconsideration/dismissal of Plaintiffs’ state claims in Counts 8-12 and
`14. For the same reasons the arguments fail as to the state claims, they fail as to the BIPA § 15(c) claims.
`2 Defendants seek reconsideration of the Court’s jurisdictional ruling as to Counts 8-12 and 14. However,
`the Court previously dismissed Count 10. Dkt. 279 at 17-18.
`3 Citations to docketed entries are to the CM/ECF-stamped page numbers.
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`3
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`concedes that none of the named plaintiffs, and no class member, ‘suffered any injury as a result
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`of the violations of Section 15(c) of BIPA other than the statutory aggrievement alleged [in the
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`complaint].’” Id. (emphasis added). As a result, the Seventh Circuit held that the plaintiffs “have
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`described only a general, regulatory violation, not something that is particularized to them and
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`concrete.” Id. at 1248. The Seventh Circuit further held that others may sue and include an
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`allegation of injury and noted that “there are a number of class actions pending against Clearview,
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`many of which appear to be broader than [Thornley].” Id.
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`Unlike the plaintiffs in Thornley, Plaintiffs, here, did not formulate their allegations “to
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`steer clear of federal court.” See id. Rather, Plaintiffs have included “allegations of injury” in the
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`operative complaint, including allegations that Defendants’ nonconsensual taking and use of
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`Plaintiffs’ biometrics have exposed them to numerous imminent and certainly impending injuries.
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`See Dkt. 116 ¶¶ 61-64. As the Court correctly held, “the nonconsensual taking of plaintiffs’ private
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`information is a concrete harm because the possibility of misuse is ever present.” Dkt. 279 at 15.
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`That is especially true here, where the magnitude of Defendants’ misconduct has been concealed
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`from Plaintiffs and class members. See Dkt. 116 ¶ 63; see also Thornley, 984 F.3d at 1247 (injury
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`may include allegations that “the act of selling [the] data amplified the invasion of . . . privacy that
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`occurred when the data was first collected, by disseminating it to some unspecified number of
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`other people.”). Because this case and Thornley involve different allegations, Defendants’ claim
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`that the Court’s ruling on their motion to dismiss, if proper, would require a different result in
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`Thornley (see Dkt. 308 at 10-11), lacks merit.
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`Defendants’ contention regarding TransUnion (Dkt. 308 at 11) also fails. According to
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`Defendants, the Court failed to address “TransUnion’s core holding – that individuals whose credit
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`reports had not been disclosed to third-parties had not suffered a concrete harm and thus lacked
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`4
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`standing.” See id. at 11, n.3. As this Court recently held in denying Macy’s, Inc.’s motion to certify
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`an interlocutory appeal, unlike here, the violation of the statute at issue in TransUnion was
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`analogous to the common-law tort of defamation – which requires publication. See Dkt. 314 at 4.
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`Here, Defendants’ alleged state law violations are more analogous to the torts of trespass, see
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`Bryant v. Compass Grp. USA, Inc., 958 F.3d 617, 624 (7th Cir. 2020), and intrusion upon seclusion
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`because Defendants obtained Plaintiffs’ and class members’ private information without their
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`consent and deprived them of their ability to make informed decisions about the use of that
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`information. See Dkt. 314 at 3 (discussing TransUnion in context of BIPA § 15(b)).
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`C.
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`The Court’s Holding that Mulcaire and Rocky Mountain Waived Their
`Personal Jurisdiction Argument Was Not a Manifest Error of Law.
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`In Defendants’ motion to dismiss, they perfunctorily asserted in a four-line footnote that:
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`(a) “Mulcaire and Rocky Mountain also should be dismissed because the Court lacks personal
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`jurisdiction over them”; and (b) “[f]or similar reasons previously discussed by Clearview, Mulcaire
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`and Rocky Mountain did not purposefully avail themselves of Illinois to establish minimum
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`contacts with the state.” See Dkt. 88 at 12, n.2. Defendants did not make any attempt to describe
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`how the fact-specific arguments previously made and discussed as to Clearview, Ton-That and
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`Schwartz were “similar to” the unspecified bases upon which Defendants perfunctorily sought
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`dismissal of Mulcaire and Rocky Mountain. See id. This Court properly addressed the perfunctory
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`and undeveloped argument by finding that Defendants waived it. Dkt. 279 at 11, n.2.
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`Defendants now seek to blame the Court for their failure to make a proper argument,
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`accusing the Court of committing manifest error. See Dkt. 308 at 14. According to Defendants, the
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`four-line footnote was “fully developed” and “cited to substantial authority.” Id. The argument is
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`specious. Defendants made no effort to discuss the nature of their jurisdictional argument as to
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`5
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`Mulcaire and Rocky Mountain or why Plaintiffs’ jurisdictional allegations as to those Defendants
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`were deficient. Defendants have only themselves to blame.
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`D.
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`The Court’s Holding that Mulcaire and Rocky Mountain Waived Their
`“Government-Contractor Defense” Was Not a Manifest Error of Law.
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`The Court also properly held that by waiting until their reply brief to assert a BIPA § 25(e)
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`defense for Mulcaire and Rocky Mountain, Defendants waived the argument. Dkt. 279 at 11.
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`Defendants, again, seek to blame the Court for their failure to properly present the argument. See
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`Dkt. 308 at 14. According to Defendants, they properly raised the BIPA § 25(e) argument in their
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`reply because Plaintiffs somehow raised a “new argument” in their opposition brief. See id. But
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`Plaintiffs’ opposition brief: (a) merely responded to Defendants’ motion to dismiss arguments; and
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`(b) only relied on allegations in the operative complaint. See Dkt. 134 at 10-11; Dkt. 116 ¶¶ 18,
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`22, 39, 43. The opposition brief contained no “new argument,” and Defendants’ claim to the
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`contrary is unsupported. While Defendants claim that Plaintiffs’ opposition argued for the first
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`time “that they were ‘injur[ed]’ by [Rocky Mountain’s] ‘single client’” (Dkt. 308 at 14), the
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`complaint alleges that: (a) Rocky Mountain had a single client (Dkt. 116 ¶ 18); (b) “Rocky
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`Mountain’s activities . . . resulted in Rocky Mountain violating the privacy rights of millions of
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`American residents, including residents of Illinois, California, New York and Virginia” (Id. ¶ 43);
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`and (c) “[a]t all times, the injuries caused by Rocky Mountain’s conduct were foreseeable.” Id.
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`Defendants’ alternative argument (see Dkt. 308 at 14-15) is equally baseless. Specifically,
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`the fact that a Circuit Court of Cook County, Illinois opinion regarding BIPA § 25(e) was issued
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`after Defendants filed their motion to dismiss has no bearing on the untimeliness of Defendants’
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`BIPA § 25(e) argument. When Defendants filed their motion to dismiss, they undoubtedly were
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`aware of Plaintiffs’ allegations and BIPA § 25(e). Thus, nothing precluded Defendants from
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`6
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`seeking dismissal based on BIPA § 25(e) at that time. That Defendants chose not to do so was a
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`decision they made, not a manifest error committed by the Court.
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`Tacitly conceding the Court’s waiver ruling was proper, Defendants contend the Court
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`should nevertheless address the waived argument because it would be “more economical to do so
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`now.” See Dkt. 308 at 15. Defendants threaten that if the Court does not agree to their demand,
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`Mulcaire and Rocky Mountain will be forced to “immediately file a motion for judgment on the
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`pleadings.” Id. at 15-16. Defendants ignore that they have denied that Rocky Mountain’s single
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`client was the Illinois Secretary of State (see Dkt. 310 at 7, ¶ 18), thereby creating a disputed issue
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`of fact that would preclude judgment on the pleadings.4 See United States v. Luna, No. 17-cv-
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`1472, 2019 WL 1098936, at *2 (N.D. Ill. Mar. 8, 2019) (where Rule 12(c) motion seeks to dispose
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`of a claim on the merits, it is more like a summary judgment motion). Defendants also ignore that
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`they cannot presently file a Rule 12(c) motion because Plaintiffs have yet to answer Defendants’
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`recently filed counterclaim, and the pleadings are not yet closed. See id.
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`II.
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`The Court Did Not Dismiss Mulcaire.
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`Even though Defendants did not present any non-waived arguments seeking dismissal of
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`Mulcaire, and even though Defendants strenuously argue the Court should reconsider its waiver
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`rulings as to Mulcaire, they claim that Mulcaire already has been dismissed from the case. Dkt.
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`308 at 16. According to Defendants, the Court’s reference in a footnote of its Order that Mulcaire
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`is not individually liable for Clearview’s actions is tantamount to a dismissal. See id. However, as
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`the Court noted, “Plaintiffs do not argue that . . . Mulcaire [] personally participated in
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`4 Plaintiffs do not respond to Defendants’ self-serving contention that their BIPA § 25(e) defense has merit
`(see Dkt. 308 at 16), other than to note that Defendants fail to point out what specific claims they would
`seek judgment on and the fact that Defendants dispute that their only customer was the Illinois Secretary of
`State. See Dkt. 310 at 7, ¶ 18.
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`7
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`[Clearview’s] privacy torts . . . .” Dkt. 279 at 9, n.1. Rather, Mulcaire’s liability is tied to Rocky
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`Mountain’s unlawful conduct. The Court neither dismissed Rocky Mountain nor Mulcaire and
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`nowhere in the Order does it state otherwise. Because Defendants disagree, the Court should
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`clarify Mulcaire’s status as a Defendant in this case.5
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`III. The Court Should Deny Defendants’ Renewed Motion to Dismiss.
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`A.
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`Defendants Do Not Raise a Factual Challenge to Plaintiffs’ Standing.
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`Recognizing the futility of their standing arguments above, Defendants seek a do-over.
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`Claiming that they now assert a “factual challenge to the Plaintiffs’ standing” (see Dkt. 308 at 11-
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`13), Defendants argue that Plaintiffs lack standing to pursue Counts 8-12 and 14, as well as Counts
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`3-4. See id. at 11-12. The argument fails.
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`1.
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`Legal Standards.
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`A defendant making a factual challenge to standing “bears the initial burden of proffering
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`‘evidence’ to call [the plaintiff’s] standing into question.” See Telephone Science Corp. v. Asset
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`Recovery Solutions, LLC, No. 15-cv-5182, 2016 WL 4179150, at *4 (N.D. Ill. Aug. 8, 2016) (St.
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`Eve, J.). In the absence of such evidence, a factual challenge fails. See id. at *5. Relatedly, there
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`must be “facts [that] place the district court on notice that the [plaintiff’s] jurisdictional allegation
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`probably is false” before a court is “duty-bound to demand proof of its truth.” See Kanzelberger
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`v. Kanzelberger, 782 F.2d 774, 777 (7th Cir. 1986) (emphasis added). Similarly, “deficiencies in
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`the pleadings, or facts brought out in pretrial discovery or at trial” should “fairly shriek that there
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`is no federal jurisdiction” before a district judge is required to conduct the necessary supplemental
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`factual proceedings to resolve the doubt.” Id. (emphasis added). Thus, a district court need not
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`“always or even often conduct an inquest on jurisdiction . . . .” Id. Where factual disputes as to
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`5 To the extent the Court did dismiss Mulcaire, Plaintiffs seek leave to file an amended complaint.
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`8
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`standing exist, the proper resolution mechanism is an evidentiary hearing. Bazile v. Finance Sys.
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`of Green Bay, Inc., 983 F.3d 274, 277 (7th Cir. 2020). A dismissal for lack of subject matter
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`jurisdiction is without prejudice. Id. at 281.
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`2.
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`The Court Should Deny the Renewed Motion to Dismiss Because
`Defendants Do Not Contend There is No Federal Jurisdiction.
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`In its Order, the Court found two bases upon which Plaintiffs have standing to assert their
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`state claims: (a) “Plaintiffs have sufficiently alleged that defendants’ disclosure of their private
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`information without their consent caused them [concrete harm]”; and (b) “the nonconsensual
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`taking of plaintiffs’ private information is a concrete harm . . . .” See Dkt. 279 at 15. In their
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`renewed motion to dismiss, Defendants’ purported evidence only challenges the first basis. See
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`Dkt. 308 at 11-13. But even if Defendants’ purported evidence could negate one of the bases upon
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`which the Court found Plaintiffs have standing – which, as discussed below, it cannot – that
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`evidence does not “fairly shriek that there is no federal jurisdiction.” See Kanzelberger, 782 F.2d
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`at 777 (emphasis added). Indeed, the evidence is silent as to the Court’s other basis for finding
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`standing. As such, no doubt exists as to Plaintiffs’ standing, and the Court need not conduct any
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`further inquiry. See id.
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`3.
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`The Clearview Defendants Have Not Presented Evidence Showing Any
`Jurisdictional Allegation Is “Probably False.”
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`Even if Defendants had lodged a factual challenge that would wholly defeat federal
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`jurisdiction, the renewed motion to dismiss still fails because Defendants have not presented
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`evidence that places the Court on notice that any jurisdictional allegation “probably is false.” See
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`Kanzelberger, 782 F.2d at 777. Indeed the allegations are true.6
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`6 In their renewed motion, Defendants accuse Plaintiffs of making “false” allegations regarding Defendants’
`disclosure of Plaintiffs’ and class member’ biometrics. Dkt. 308 at 11. The accusation is false and based on
`Defendants’ ostrich-like avoidance of the actual evidence in this case and omission of material information
`regarding Mulcaire’s actual testimony, as discussed below.
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`a.
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`Defendants Made No Factual Challenge in the Initial Motion to
`Dismiss Despite Possessing the Same Information Now at Issue.
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`In their renewed motion, Defendants rely on purported facts and evidence known to them
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`before they filed their initial motion to dismiss. Specifically, Defendants premise their “factual
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`challenge” on: (a) Mulcaire’s May 2020 declaration; (b) Mulcaire’s April 2021 declaration; and
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`(c) Mulcaire’s May 13, 2021 deposition testimony.7 Dkt. 308 at 11-12; see also Exhibit 1 (Mulcaire
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`Dep. Tr.); Exhibit 2 (May 6, 2020 Mulcaire Decl.); Exhibit 3 (Apr. 30, 2021 Mulcaire Decl.);
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`Declaration of Scott R. Drury. Because that evidence existed before Defendants filed their initial
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`motion to dismiss, it was known to Defendants when they filed the motion. Yet, Defendants made
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`a conscious decision to forego a factual challenge to jurisdiction at that time. See id. at 28-30.
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`Certainly, if Defendants believed that factual information they possessed when they filed
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`their initial motion would defeat jurisdiction, they would have made that argument in the initial
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`motion. Given that fact discovery had already opened (see Dkt. 28), Defendants did not even have
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`to worry that a factual challenge would give rise to early discovery. That Defendants chose not to
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`make a factual challenge in their initial motion is telling – Mulcaire’s testimony did not show that
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`Plaintiffs’ jurisdictional allegations were “probably false” in May 2021 (when Defendants filed
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`their initial motion), and it does not show that any such allegation is “probably false” now.
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`b.
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`Defendants Have Not Offered Admissible Evidence Calling
`Plaintiffs’ Standing into Question.
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`On the merits, Defendants’ factual challenge fails because Defendants have not offered
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`admissible evidence calling Plaintiffs’ standing into question. While Defendants point to
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`Mulcaire’s testimony (given in his personal capacity), Mulcaire is not competent to testify
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`7 Defendants also cite a filing by the Thornley plaintiffs in their state case in which those plaintiffs sought
`to fend off a motion by Plaintiffs, here, to intervene in the state case. See Dkt. 308 at 12. In that filing the
`Thornley plaintiffs sought to justify their efforts to avoid federal court. See id. The self-interested nature of
`the filing entitles it to no weight and highlights the desperate nature of Defendants’ arguments.
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`regarding the functionality of the Clearview and/or Rocky Mountain software applications
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`(collectively, the “App”).
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`Mulcaire has testified that: (a) he is not a technology expert; (b) he does not have any
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`responsibility for Clearview’s information technology operations; (c) he did not code Clearview’s
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`algorithm; and (d) he does not know exactly how the Clearview algorithm functions. Id. at 84:19-
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`23, 91:5-7, 133:18-134:1). Mulcaire’s “knowledge” of Clearview’s information technology is
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`limited to conversations with employees who work in that role, his use of company-owned devices
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`and security training. Id. at 91:14-22. When asked if he had any hands-on experience with
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`Clearview’s information technology operations, Mulcaire reiterated: “I don’t work on information
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`technology.” Id. at 92:7-15.
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`Mulcaire’s lack of knowledge, training and experience disqualifies him from testifying
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`regarding the App’s functionality or the data the App distributed to users (other than possibly
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`testifying regarding what he saw when he used the App). This conclusion is underscored by
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`Defendants’ failure to lay the requisite foundation for his testimony. See Dkt. 308 at 4-5.
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`Notably, Mulcaire’s inadmissible testimony highlights the evidence Defendants failed to
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`present – i.e.: (a) testimony from an engineer or corporate designee of Defendants; or (b)
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`engineering documents detailing the data distributed by the relevant versions of the App in
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`response to a user search. Significantly, Plaintiffs have not been able to review the relevant
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`versions of the App because Defendants failed to preserve them and will not produce
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`documentation showing how the present version of the App differs from the App as it existed
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`during the currently-defined relevant time period of January 1, 2015 to January 22, 2020. See
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`Exhibit 4 (Apr. 2, 2022 Drury letter re: spoliation of evidence); Dkt. 237 at 4 (defining relevant
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`11
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`time period). The Court may presume the spoliated evidence would not be favorable to Defendants.
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`See DR Dist., LLC v. 21 Cent. Smoking, Inc., 513 F.Supp.3d 839, 958 (N.D. Ill. 2021).
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`B.
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`Even if Defendants Made a Proper Factual Challenge, at Minimum, the
`Evidence Shows Defendants Disclose Biometric Information.
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`Given Defendants’ failure to come forward with evidence calling Plaintiffs’ standing into
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`question or showing that any jurisdictional allegation is “probably false,” the Court need not
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`conduct an inquest into jurisdiction. See Kanzelberger, 782 F.2d at 777. However, out of an
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`abundance of caution, Plaintiffs address Defendants’ purported factual challenge here. To the
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`extent the Court determines that evidence beyond that presented below is needed to rebut the
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`factual challenge, Plaintiffs respectfully submit that additional discovery is required. Plaintiffs note
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`that Defendants’ spoliation of the relevant versions of the App has hindered the discovery process
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`and will require resolution. See Ex. 4. Once discovery is completed, Plaintiffs respectfully request
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`an evidentiary hearing on Defendants’ factual challenge. See Bazile, 983 F.3d at 277.
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`Contrary to Defendants’ assertions, Defendants routinely disclose biometric information,
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`as BIPA defines the term.8 “Biometric information” is “information, regardless of how it is
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`captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify
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`an individual.” 740 Ill. Comp. Stat. 14/10. Mulcaire has testified that “[w]hen a user searches the
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`app, the user submits a ‘probe’ image, from which Clearview obtains facial vectors. The facial
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`vectors from the probe image are compared to other facial vectors in Clearview’s database, and
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`any images associated with close matches to the probe facial vector are returned as search results.”
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`Ex. 3 ¶ 13. The following image from Defendants’ marketing materials makes clear that the
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`8 Plaintiffs do not yet know the full extent to which Defendants disclose biometric identifiers because
`Defendants have not disclosed the relevant versions of the App. Available evidence indicates Clearview
`disclosed its entire biometric database to Rocky Mountain. See Exs. 5-6 (Clearview and Rocky Mountain
`documents describing the same biometric database with each claiming to be the “sole manufacturer”).
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`Case: 1:21-cv-00135 Document #: 321 Filed: 04/07/22 Page 13 of 18 PageID #:6232
`Case: 1:21-cv-00135 Document #: 321 Filed: 04/07/22 Page 13 of 18 PagelD #:6232
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`purpose of their echnoloxyso
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`See Exhibit 7 (marketing materials).
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`The above facts make clear that the information disclosed/distributed to App users who
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`submit a probe imageis “information .
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`.
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`. based on an individual’s biometric identifier [referred to
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`by Defendants as a “facial vector”’] used to identify an individual.” See 740 Ill. Comp.Stat. 14/10.
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`Indeed, the entire premise of Defendants’ business modelis to disclose/distribute information to
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`users based on the biometric information of an unknown personto identify the unknown person.
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`Asthe definition of “biometric information” makes clear, the way in which Defendants shared the
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`information — here, via photographs and URLs — is of no import. See 740 Ill. Comp.Stat. 14/10
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`(“regardless of how it is... shared... .”).
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`While Defendants cite portions of Mulcaire’s testimony where he claims Defendants do
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`not provide “biometric information” to their customers (see Dkt. 308 at 4 and n.2, 5), they omit
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`Case: 1:21-cv-00135 Document #: 321 Filed: 04/07/22 Page 14 of 18 PageID #:6233
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`that Mulcaire’s use of the term “biometric information” does not correspond with BIPA’s
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`definition. See Ex. 1 at 219:3-223:3, 226:24-228:3 (showing Mulcaire’s struggle to define what he
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`meant by “biometric information” but never once mentioning BIPA or its definition). From his
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`testimony, it is clear that what Mulcaire really meant is that Defendants do not provide biometric
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`identifiers to customers. See Ex. 1 at 223:4-13, 224:16-225:13. Indeed, Mulcaire has testified that
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`he swapped out the term “biometric information” in his first declaration (see Ex. 2 ¶ 10) for the
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`term “facial vectors” (see Ex. 3 ¶ 15) in his second declaration because “facial vectors, it makes it
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`clear what we’re talking about in the context of Clearview’s operations.” See Ex. 1 at 223:4-13,
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`224:16-225:13.
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`In his struggle to state what he meant by his own use of the term “biometric information,”
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`Mulcaire resorted to trying to explain what “biometric information” was not – namely, the
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`photographs and URLs Defendants provide to their customers. See Ex. 1 at 220:9-19; see also Dkt.
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`308 at 5. But Mulcaire’s claim that photographs and URLs are not biometric information is too
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`simplistic in the context of BIPA. Plaintiffs do not contend that a mere photograph or URL is
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`biometric information. Rather, as discussed above, it is a specific photograph and/or related URL
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`returned in response to a probe image, which photograph and/or URL is/are based on a person’s
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`biometric identifier and used to identify a person, that is/are at issue.
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`Plaintiffs note that, under BIPA, “biometric information” “does not include information
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`derived from items . . . excluded under the definition of biometric identifiers.” See 740 Ill. Comp.
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`Stat. 14/10. Based on this language, Defendants may contend they do not distribute biometric
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`information because the information they distribute is “derived from” an item excluded under the
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`definition of biometric identifier – namely, photographs. Such a contention would lack merit.
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`Defendants made this same argument in their motion to dismiss (see Dkt. 88 at 28), and this Court
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`Case: 1:21-cv-00135 Document #: 321 Filed: 04/07/22 Page 15 of 18 PageID #:6234
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`rejected it. See Dkt. 279 at 8. As this Court held, “Illinois courts have uniformly rejected the
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`argument that BIPA exempts biometric data extracted from photographs.” Id.
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`The biometric data in this case is the facial geometry of Plaintiffs and class members, (see
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`id. (citing Flores v. Motorola Solutions, Inc., No. 21-cv-1128, 2021 WL 232627, at *3 (N.D. Ill.
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`Jan. 8, 2021))), and the biometric information at issue is derived from the face templates created
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`by Defendants’ scans of the facial geometry. A different conclusion would lead to the absurd result
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`where biometric information resulting from a scan of a live face or a face in a video would not be
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`excluded, but a scan of a still image taken of the live face or extracted from the video would be.
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`The Court should avoid an interpretation of BIPA that would produce an absurd result. Sablik v.
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`County of Dekalb, 163 N.E.3d 181, 187 (Ill. Ct. App. 2019). Finally, even if BIPA somehow sought
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`to exclude information derived from photographs, the exclusion would only apply to paper prints
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`of photographs – not digitized images stored as a computer file, which are what is at issue here.
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`See In re Facebook Biometric Info. Priv. Litig., 185 F.Supp.3d 1155, 1171 (N.D. Cal. 2016).
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`CONCLUSION
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`For the foregoing reasons, the Court should deny Defendants’ motion for reconsideration
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`and partial motion to dismiss. While the Court should deny the partial motion to dismiss outright,
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`to the extent that it does not, it should forego ruling on the motion until Plaintiffs have the chance
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`to complete discovery and present evidence at an evidentiary hearing. Further, in response to
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`Defendants’ motion for clarification, the Court should make clear that Mulcaire remains a
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`defendant in this case. Finally, to the extent the Court grants any part of Defendants’ motion to
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`dismiss or indicates that Mulcaire has been dismissed from the case, Plaintiffs request leave to file
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`an amended complaint.
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`Dated: April 7, 2022
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`Case: 1:21-cv-00135 Document #: 321 Filed: 04/07/22 Page 16 of 18 PageID #:6235
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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
`LOEVY & LOEVY
`311 N. Aberdeen, 3rd Floor
`Chicago, Illinois 60607
`312.243.590