Case: 1:21-cv-00135 Document #: 407 Filed: 08/10/22 Page 1 of 4 PageID #:8303
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Case No. 21-cv-0135
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`Judge Sharon Johnson Coleman
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`In re Clearview AI, Inc., Consumer Privacy
`Litigation,
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is plaintiffs’ motion for leave to file a second amended complaint in this
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`multi-district litigation (“MDL”), along with amending the underlying complaints in Mutnick v.
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`Clearview AI, Inc. (“Mutnick”), No. 20-cv-512 (N.D. Ill.), Vestrand v. Clearview AI, Inc. (“Vestrand”),
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`No. 20-cv-3372 (N.D. Ill.), and Hurvitz v. Clearview AI, Inc. (“Hurvitz”), No. 21-cv-3373. Plaintiffs
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`specifically seek leave to add eight new retail defendants. For the following reasons, the Court, in its
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`discretion, grants in part and denies in part plaintiffs’ motion.
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`Background
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`Plaintiffs allege the Clearview defendants’ conduct violated their privacy rights and
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`defendants’ use of their biometric information was without their knowledge and consent in violation
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`of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”). Plaintiffs also
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`bring statutory and common law claims under Virginia, California, and New York law. The Court
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`presumes familiarity with its earlier rulings in this lawsuit.
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`In the present motion, plaintiffs seek to add the following eight defendants: (1) Macy’s
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`Retail Holdings, Inc., now known as Macy’s Retail Holdings, LLC; (2) Macy’s Corporate Services,
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`Inc., now known as Macy’s Corporate Services, LLC; (3) AT&T Inc.; (4) Kohl’s, Inc.; (5) Best Buy
`Stores, L.P.; (6) Albertsons Companies, LLC; (7) Walmart Inc.; and (8) The Home Depot, Inc.
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`Legal Standard
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`Federal Rule of Civil Procedure 15(a)(2) directs district courts to freely give leave to amend
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`Case: 1:21-cv-00135 Document #: 407 Filed: 08/10/22 Page 2 of 4 PageID #:8304
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`when justice so requires. See Saint Anthony Hospital v. Eagleson, 40 F.4th 492, 517 (7th Cir. 2022).
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`District courts, however, may deny leave to amend when there is a good reason to do so, including
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`futility, undue delay, prejudice, or bad faith. Law Offices of David Freydin, P.C. v. Chamara, 24 F.4th
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`1122, 1133 (7th Cir. 2022). The Court has broad discretion in considering a motion for leave to
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`amend a pleading. Thomas v. Dart, 39 F.4th 835, 840 (7th Cir. 2022).
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`Discussion
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`On May 25, 2021, plaintiffs filed the operative amended consolidated class action complaint
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`naming defendant Macy’s Inc. as the named representative on behalf of the putative defendant class
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`called the “Clearview Client Class.” In their present motion, plaintiffs explain that the first two
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`additional defendants they seek to add are other Macy’s entities subject to the same liability as
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`Macy’s, Inc. Because original defendant Macy’s Inc. did not object to plaintiffs’ motion for leave to
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`amend, the Court grants plaintiffs’ motion to add Macy’s Retail Holdings, Inc., now known as
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`Macy’s Retail Holdings, LLC, and Macy’s Corporate Services, Inc., now known as Macy’s Corporate
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`Services, LLC, as named defendants to the relevant lawsuits.
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`The remaining defendant retailers, however, are not Macy’s entities, but were clients of the
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`Clearview defendants. The Court first notes that the deadline for joining new parties was October 1,
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`2021, the date plaintiffs proposed in the parties’ March 2021 Joint Proposed Management and
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`Discovery Plan. Plaintiffs, however, not only missed that deadline, but did not address the deadline
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`until their reply brief, after the Clearview defendants pointed it out to the Court.
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`Meanwhile, in response, the Clearview defendants argue the addition of these defendant
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`retailers to this lawsuit would severely prejudice them in light of the September 26, 2022 fact
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`discovery deadline, which is a hard deadline. The Court agrees because “prejudice is more likely
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`when an amendment comes late in the litigation and will drive the proceedings in a new direction.”
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`Allen v. Brown Advisory, LLC, ____ F.4th ___, 2022 WL 2825840, at *7 (7th Cir. July 20, 2022).
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`Case: 1:21-cv-00135 Document #: 407 Filed: 08/10/22 Page 3 of 4 PageID #:8305
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`Here, the class plaintiffs have switched gears by first asserting that Macy’s would be the named
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`representative for the defendant “Clearview Client Class,” but now seek to add more retail
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`defendants as the “Client Defendants.” Although plaintiffs’ attempt to amend their pleadings is not
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`late in this overall litigation, it is late in relation to the upcoming fact discovery deadline. See Brown v.
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`City of Chicago, No. 12-cv-2921, 2017 WL 11515229, at *2 (N.D. Ill. Sept. 14, 2017) (Coleman, J.)
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`(“Undue delay may be found where a party delays making amendments after learning the identity of
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`a potential defendant or when amendments are made near the end of discovery.”). Equally
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`important, plaintiffs do not explain why Macy’s Inc. and its affiliates are inadequate named
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`representatives nor do plaintiffs cogently explain why these additional defendants are necessary to
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`their claims at this juncture, especially because they were aware that these retailers were Clearview’s
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`clients before they filed the operative complaint in May 2021.
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`Plaintiffs’ motion for leave to amend has other problems. For example, under Illinois law,
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`BIPA claims brought under sections 15(c) and (d) have a one-year limitations period. See Tims v.
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`Black Horse Carriers, Inc., 184 N.E.3d 466, 473, 451 Ill.Dec. 879, 886, 2021 IL App (1st) 200563, ¶ 33
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`(1st Dist. 2021). In their motion for leave to amend, plaintiffs do not explain how their BIPA claims
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`under sections 15(c) and (d) against the new defendant retailers relate back to the date of the original
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`pleadings under Federal Rule of Civil Procedure 15(c)(1)(C). See Krupski v. Costa Crociere S.p.A., 560
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`U.S. 538, 541, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010). Similarly, plaintiffs do not explain how the
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`claims under New York Civil Rights Act § 51 against the new retail defendants relate back—keeping
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`in mind the one-year statute of limitations applicable to actions under § 51 of the New York Civil
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`Rights Act. See Electra v. 59 Murray Enter., Inc., 987 F.3d 233, 240 (2d Cir. 2021). Also problematic is
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`that plaintiffs bring an unjust enrichment claim in the proposed amended complaint in Hurvitz v.
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`Clearview AI, Inc., even though the Court granted the Clearview defendants’ motion to dismiss this
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`claim because it is preempted by New York Civil Rights Act §§ 50, 51. See Sondik v Kimmel, 131 A.D.
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`3d 1041, 1042, 16 N.Y.S.3d 296, 298 (N.Y. App. Div. 2015) (“Common-law unjust enrichment
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`claims for the unauthorized use of an image or likeness are preempted by Civil Rights Law §§ 50
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`and 51.”).
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`Nevertheless, plaintiffs now argue that if the Court does not grant them leave to add these
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`defendants, they will file separate complaints against the additional named defendants causing
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`multiple inefficiencies in this MDL and possible future tag-along cases. That may be true, but as this
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`ruling indicates, plaintiffs’ attempt to file new lawsuits may be difficult due to timeliness issues. As it
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`stands, the Court, in its discretion, grants in part and denies in part plaintiffs’ motion.
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`On a final note, the Clearview defendants’ argument about the new allegations in relation to
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`defendant Rocky Mountain is moot due to the Court’s July 25, 2022 denial of the Clearview
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`defendants’ Rule 54(b) motion for reconsideration.
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`Conclusion
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`The Court, in its discretion, grants in part and denies in part plaintiffs’ motion for leave to
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`amend. [349, 350].
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`IT IS SO ORDERED.
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`Date: 8/10/2022
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`Entered: _____________________________
` SHARON JOHNSON COLEMAN
` United States District Court Judge
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