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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 1 of 19 PageID #:9825
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF
`ILLINOIS EASTERN DIVISION
`
`
`
`In re: Clearview AI, Inc. Consumer Privacy
`Litigation
`
`
`
`Civil Action File No.: 1:21-cv-00135
`
`Judge Sharon Johnson Coleman
`
`Magistrate Judge Maria Valdez
`
`MOTION FOR AN ORDER CLARIFYING THAT THE COURT
`INTENDED TO APPOINT LOEVY & LOEVY AS LEAD CLASS COUNSEL,
`AS OPPOSED TO THE INDIVIDUAL LAWYERS
`WHO AT THE TIME WORKED AT THE FIRM
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jonathan Loevy
`Michael Kanovitz
`LOEVY & LOEVY
`311 N. Aberdeen, 3rd FL
`Chicago, IL 60607
`(312) 243-5900
`
`
`

`

`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 2 of 19 PageID #:9826
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`Introduction
`The Court’s original order appointing interim lead class counsel appointed Mike Kanovitz
`
`and Scott Drury of the firm Loevy & Loevy (“L&L”). R.90. The motion that had served as the basis
`for that order demonstrated the Loevy firm’s extensive experience and expertise, and its impressive
`track record in class action litigation and trials. On that basis, the Court made the appointment.
`
`L&L proceeded to litigate the case diligently and effectively for nearly two years, vindicating
`the Court’s trust in our firm as lead class counsel. Then, with discovery winding down and settlement
`negotiations picking up, Mr. Drury resigned from the firm and sent notices directing L&L to
`immediately withdraw from the case. This was presumably so that any resulting attorneys’ fee would
`come to his new firm rather than to L&L. When L&L lawyers urged Mr. Drury to allow them to
`finish their trial that was ongoing before Judge Kennelly so they could bring the matter to this Court’s
`attention in an orderly way, Mr. Drury responded that if L&L lawyers did not all withdraw within
`48 hours, he would accuse them and proceed against them for disobeying a client directive.
`
`The conclusion that Mr. Drury is putting his own economic self-interest above that of the
`class is unavoidable. Put simply, there is no universe where the class is better served by firing L&L.
`In addition to all of our other qualifications on which the Court relied in appointing us, our firm just
`won a $228 million judgment in the first BIPA case to go to trial. And some of the same defense law
`firms from Clearview represented witnesses in that trial, such that our continued role as lead class
`counsel can only benefit the class. Mr. Drury’s ill-conceived power-grab should be rejected.
`
`Summary of Relief Sought
`
`By this motion, L&L seeks an order clarifying that the Court intended to appoint the L&L
`firm as lead class counsel, not the individual lawyers who at the time worked at the firm. E.g., Hodges
`v. Bon Secours Health Sys., Inc., CV RDB-16-1079, 2016 WL 4447047, at *2 (D. Md. Aug. 24,
`2016) (appointing a law firm as class counsel, not individual lawyers).
`
`To be clear, in seeking a declaration that L&L remains lead class counsel, L&L is not asking
`that Mr. Drury be forced off the case altogether. Mr. Drury is a skilled attorney, who has been very
`involved in the litigation to date. If he is willing, L&L hopes that he will continue to play the same
`
`
`

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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 3 of 19 PageID #:9827
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`role in the same relationship that has essentially characterized the staffing of the case for the past two
`years: specifically, as an associate and employee of L&L, Mr. Drury took direction from and was
`under supervision of the senior partners at L&L. While serving in that capacity, there is no dispute
`that Mr. Drury was very involved in this litigation, and hopefully he will decide to remain so. The
`class’ best interests, in other words, would be best served if the Court entered an order affirming that
`L&L remains lead class counsel, and continues to be responsible for supervising and directing.
`
`Discussion
`
`As the Court is aware, this case involves allegations that the Clearview Defendants were
`sweeping mug shot photos from the internet into a database that ran afoul of Illinois’ Biometric
`Information Privacy Act (“BIPA”). The relevant background for the present dispute is as follows.
`
`A.
`L&L Files This Lawsuit
`
`The case was conceived by an associate in L&L’s privacy practice area, Andrew Miller, who
`had been investigating the issue since at least November 2019 based on documents obtained under
`FOIA. Senior L&L Partner Mr. Kanovitz was also instrumental in creating the complaint. He was the
`one who included the novel and creative civil rights claims. See Exhibit B.
`
`In January 2020, the New York Times published a front-page article describing Clearview’s
`actions. Because L&L attorneys had been working on the case for months, L&L was in position to
`promptly file a lawsuit, the first firm to do so. After the New York Times broke the story and L&L
`filed its lawsuit, a number of other class action law firms subsequently filed similar cases in the
`Northern District and other jurisdictions around the country. Those cases were consolidated before
`this Court by order of the Judicial Panel on Multidistrict Litigation.
`
`B.
`L&L’s Motion To Be Appointed Class Counsel
`
`Multiple class action law firms sought the honor of being appointed lead class counsel.
`L&L’s motion made a very strong case that our firm was uniquely positioned to lead in this important
`case. The firm’s resume, Exhibit 1 to that motion (R.88-1), is worth reviewing. See Exhibit A.
`In nine pages, the firm justifies why its experience and track record justify the appointment. Id.
`
`
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`2
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`

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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 4 of 19 PageID #:9828
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`In sum, with more than 40 extremely-qualified lawyers fighting for civil rights and consumer
`
`protection, the firm has extensive experience with class actions, BIPA claims, and related privacy
`issues. L&L has massive class action verdicts and settlements, totally more than $200mm (before
`Rogers doubled that amount). The representative case results on pages 2-9 speaks for themselves.
`The firm’s resume also demonstrates that its trial experience is of the highest caliber. We have won
`scores of jury trials and secured hundreds of millions in recoveries for our clients. This extraordinary
`record of success in difficult cases will help the Clearview class achieve the best possible result. Id.
`
`Notably, there is not a single reference to Mr. Drury in the entire supporting exhibit, nor to a
`single case he had ever worked on. Id.
`
`On August 14, 2020, the Court granted L&L’s motion. R.90. Per the motion’s request,
`attorneys Mike Kanovitz and Scott Drury of the firm Loevy & Loevy were appointed interim lead
`class counsel pursuant to FRCP 23(g). See R.90.
`
`C.
`L&L Associate Scott Drury
`
`Mr. Drury joined L&L in 2019, having served the prior six years as a full-time member of the
`Illinois House of Representatives. Thereafter, Mr. Drury (who prior to politics was criminal
`prosecutor with the U.S. Attorneys’ Office) rejoined the practice of law. Despite his lack of
`experience with either civil litigation or class actions, Mr. Drury had worked on privacy issues as a
`politician, and was thus a good fit to lead L&L’s newly founded privacy practice. One of his first
`assignments was the firm’s Clearview case.
`
`D.
`L&L And The Clearview Litigation
`
`The firm proceeded to litigate. Mr. Drury was assigned the case in terms of responsibility for
`the day-to-day litigation, but that said, it was a team effort.
`
`For example, co-lead class counsel and L&L Senior Partner, Mr. Kanovitz, has been involved
`since the earliest stages of L&L’s evaluation, beginning in November 2019, supervising Mr. Miller as
`well as Mr. Drury. When the New York Times article came out unexpectedly in January 2020, Mr.
`Kanovitz drafted sections and edited the complaint so we could be the first to file two days later. Id.
`
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`3
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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 5 of 19 PageID #:9829
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`Mr. Kanovitz stayed involved thereafter as a supervisor, advisor, and hands-on participant.
`
`By way of examples, Mr. Kanovitz participated in: locating and adding additional defendants;
`identifying sources for discovery; reviewing FOIA documents; strategizing and litigating the
`multidistrict conflicts among firms vying to represent the class in New York and elsewhere; working
`with opposing counsel once they appeared; working on the preliminary injunction motion; briefing
`on the original motion to appoint L&L; drafting the firm’s resume to establish the firm’s class action
`credentials; responding to the competing firms’ efforts to be appointed in other venues; briefing on
`motion to transfer; intervening in the New York venue; decision making on adding and dismissing
`additional defendants; mediation efforts in late 2020, and continuing through 2021; evaluating
`insurance policies; strategizing for the MDL proceedings; drafting portions of plaintiff’s mediation
`statement and formulating viable programmatic relief as part of a potential resolution; negotiation of
`the joint prosecution agreement between L&L on the one hand and the Bursor and Hedin firms on the
`other; research regarding Clearview’s patents and its Singapore subsidiaries; formulating information
`requests in the context of settlement; litigating the lead counsel motions following the JPML ruling;
`researching the injunction of state court proceedings in aid of the federal court’s jurisdiction; and
`addressing conflict issues and staffing, among other matters. See Exhibit B (Kanovitz Declaration).
`
`Former L&L associate Mr. Miller’s work at the firm was almost entirely dedicated to the
`privacy cases. Beyond conceiving/developing the Clearview case, he helped draft the complaint and
`other pleadings, including a lead role in drafting the motion and the reply in support of preliminary
`injunction, as well as a lead role in drafting the response to Defendants’ motion to dismiss. Id.
`
`Scott Rauscher, a L&L partner with class action experience, also drafted pleadings in the
`Clearview case, including the initial draft of the motion to appoint the firm as lead counsel. When Mr.
`Drury was too busy with other matters, Mr. Rauscher provided other support, including drafting
`responses to multiple sets of written discovery. Id.
`
`Jon Loevy, too, has worked on the case, including this pleading. While he typically gets
`involved after discovery and closer to trial, Mr. Loevy is excited to play a bigger role in this important
`
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`4
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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 6 of 19 PageID #:9830
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`case now that Mr. Drury’s departure has created a void just as the case gets closer to the end stages.1
`
`In sum, while L&L does not dispute that the case was assigned to Mr. Drury and that he was
`more of the public face and had more interactions with co-counsel and the Court, it would be wrong
`for him to try to grab all the credit. Like all of the firm’s cases, this one was assigned to a firm attorney
`with primary responsibility, but the firm took seriously its appointment as lead class counsel and very
`much considered it a case of the firm. And in any event every hour Mr. Drury billed while on the
`firm’s payroll is an hour that belongs on the firm’s side of the ledger, not Mr. Drury’s.
`
`In addition to attorney resources, the firm also made a financial commitment. Exhibit C
`(Declaration of Andy Thayer). Before Mr. Drury tried to fire us, we spent $32,390 to pursue the class’
`interests, and are on the hook for another $50,000+ in expert fees that are quickly coming due. Id.
`
`E.
`July of 2022
`
`Unbeknownst to L&L attorneys at the time, the Clearview Defendants reached out to Mr.
`Drury about trying to resolve the case through settlement. L&L has since learned that one of the
`defense attorneys flew to Chicago to meet with Mr. Drury in July 2022 about a framework to settle.
`
`Mr. Drury never mentioned the Defendants’ settlement overtures to anyone else at L&L --
`despite their express requests to Mr. Drury to inform them if there were any settlement negotiations.
`Mr. Drury did not share anything with any L&L attorneys at the time or after. In fact, no L&L
`attorney learned about the meeting or any of the recent settlement overtures until speaking with
`opposing counsel after Mr. Drury resigned and tried to fire L&L.
`
`F.
`September of 2022
`
`In mid-September, L&L senior partners Mr. Loevy and Mr. Kanovitz began preparing for
`trial in Rogers v. BNSF Railroad, Case No. 19-3083, the first BIPA case ever to be tried. The case had
`been litigated by a law firm called McGuire Law, and when it became clear that the case was not
`going to settle, McGuire Law sought out recommendations for which law firm to bring in to try the
`
` 1 Other firm attorneys who made contributions on L&L’s privacy/BIPA practice area as needed
`included Julia Rickert, Frank Newell, Liz Wang, Megan Pierce, and Sam Heppell, among others.
`
`
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`5
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`

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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 7 of 19 PageID #:9831
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`case. Though McGuire Law and L&L no prior relationship and did not even know each other,
`McGuire Law chose to bring in L&L (based on recommendations that included a former federal
`judge) as the firm singularly best positioned to try a complex class action BIPA case. See Exhibit D
`(Declaration of Evan Meyers of McGuire Law).
`
`At the close of business on Friday September 23, as Mr. Loevy and Mr. Kanovitz were
`preparing for trial, Mr. Drury sent an email resigning from the firm. See Exhibit E. (Just a few hours
`earlier, he had directed the firm’s bookkeeper to pay a Clearview expert invoice. See Exhibit M.)
`
`Based on our understanding of the appropriate way to handle these things, Mr. Loevy
`promptly sent an email to Mr. Drury requesting “that we mutually reach out to your former clients in
`written form or conference call (with us and you) to inform them of your departure and their options.”
`See Exhibit F (“Please advise if that is acceptable.”). Mr. Drury ignored the email. L&L sent a follow
`up the following day, Saturday, reiterating the request to contact the client together so the process
`would be orderly and there would not be competing narratives. Id. (“Are you amenable to reaching
`out the clients together as previously proposed? We would like to do that tomorrow or on Monday,
`but if that is going to be religious observance for you, Tuesday works for us too.”).
`
`Mr. Drury again ignored the email. Instead he sent an email letter on September 26 informing
`L&L that the client had hired his newly-formed law firm. See Exhibit G. The letter further instructed
`that “as Loevy & Loevy’s representation of the above-named individuals has now been terminated,
`please immediately withdraw the appearances of all [L&L] attorneys...” Id. The letter, which created
`a barrier to calling the clients, contained no proof that L&L had been fired.
`
`The next day, as the L&L partners were all-consumed preparing for the Rogers trial, Mr.
`Drury sent them an email letter attaching executed “Representation Directives.” See Exhibit H.
`L&L has no idea what Mr. Drury told the clients, but the “Representation Directives” are flawed in
`that they fail to inform the clients that they could be represented by both firms. Id. Mr. Drury’s latest
`letter repeated his instruction that L&L immediately withdraw, and demanded that L&L provide him
`immediate access to the Goldfynch case database that L&L has been paying to maintain. Id.
`
`
`
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`6
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`

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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 8 of 19 PageID #:9832
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`Upon further review, it is hardly clear that Mr. Drury’s gambit in having clients “fire” L&L
`
`was even legally valid. The Court has already appointed L&L. Clients cannot override Court orders.
`Indeed, as explained by the leading treatise, Newberg on Class Actions, Rule 23 appears to have been
`drafted to prevent exactly what Mr. Drury is doing here by having the clients “fire” our firm:
`
`
`
`The class representatives do not have an unfettered right to fire class counsel. **** Standing
`alone, Rule 23(a)(4)’s requirement that the class representative be adequate and Rule
`23(a)(g)’s insistence that class counsel be adequate say nothing about the relationship
`between those provisions. But in the Advisory Committee note [], the Committee suggests
`that class counsel, once appointed, is now the paramount representative of the class, not the
`class representatives: class counsel’s obligations are to the class, not the representative; the
`representative cannot fire class counsel; and class counsel can settle a case over the
`representative’s objections. The Advisory Committee note implies, quite strongly, that it is
`class counsel who speaks for the class, not the class representatives.
`See 1 Newberg and Rubenstein on Class Actions, § 3:82, “Rule 23(g) Emphasizes Counsel’s Duty To
`The Class A Whole” (6th ed.).
`
`Leaving aside its legal invalidity, Mr. Drury’s demand that L&L withdraw their assistance
`also made no practical sense. L&L partners are good at what they do, they have extensive history with
`the case, and their withdrawal is hardly in the best interests of the class.
`
`However, because the L&L lawyers were on trial, they sent Mr. Drury back a series of emails
`asking what the urgency was, and asking to meet as soon as the Rogers trial was over. See Group
`Exhibit I (“I do think you and I have very good reasons to speak to each other, but Mike and I are fully
`consumed with trial preparation and trial, and the conversation is going to have to wait a week or
`so.”). Mr. Drury responded on October 2 that if L&L did not immediately file a motion to withdraw
`within 24 hours, he would proceed against the firm for disregarding the client’s directive. Exhibit J
`(“If L&L does not move to withdraw by the close of business on October 4, 2022 [i.e., during the
`Rogers trial], I will be forced to assume that it has chosen to disregard the Clients’ directives.”).2
`
`
`
` 2 Curiously, Mr. Drury’s September 30 email for the first time forwarded what Mr. Drury called
`“Notices of Termination” from the Clearview clients, suggesting that the prior “Representation
`Directives” were not actually the demands to withdraw that he had been claiming they were. Exh. L.
`
`
`
`
`7
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`

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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 9 of 19 PageID #:9833
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`With Mr. Drury threatening to pursue sanctions for disobeying a clients’ wishes, Mr. Loevy
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`wrote a long summary of their position, stating in conclusion that “[w]e start trial tomorrow, and have
`no more time to spend on this. Here is where it stands as we see it. You should wait one week until we
`can have a discussion before doing anything. If you communicate to us that you simply cannot wait a
`week, let us know, and we will file the requested withdrawals tomorrow. Copy [others], as Mike and
`I will be on trial.” Exhibit K.
`
`For reasons that cannot be justified, Mr. Drury proceeded to insist that withdrawals had to be
`done immediately, without any reasonable opportunity for a meeting or orderly consideration by the
`Court. Per Mr. Drury’s demands, that is what occurred.
`
`Based on the foregoing, there was no time to fully apprise the Court of the circumstances.
`L&L fully intended to do so as soon as the Rogers trial ended. But even before the trial ended and
`L&L had the chance, this Court set a status to get to the bottom of what was going on.
`
`G. What Is Going On?
`
`What was going on was this. With the prospect of a Clearview settlement on the horizon, and
`cognizant that a Rogers victory by L&L would complicate his plan, Mr. Drury decided to start his
`own firm and try to take the Clearview case (and others) with him. Mr. Drury is obviously under the
`impression that if he can fire L&L and keep any financial recovery for himself, he will maximize his
`personal economic stake.
`
`The Court should not allow that. As the Court indicated at the October 14 hearing, its
`operating assumption was that it appointed L&L as class counsel. When Mr. Drury suggested “[l]ike
`I said, I’ve been appointed interim lead class counsel, and I remain…,” the Court made clear:
`
`
`
`The Court: You were, but you were -- wait. Let’s just be real clear. You were as a member of
`Loevy & Loevy. I mean that’s --
`
`
`
`
`
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`
`
`
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`Mr. Drury: Yes, Your Honor. I --
`
`The Court: -- that’s the truth of it, so --
`
`
`
`8
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`

`

`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 10 of 19 PageID #:9834
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`Mr. Drury: No. No. I’m not, I’m not trying to change history at all, Your Honor. I know I was
`with Loevy & Loevy at the time. I was with Loevy & Loevy until September 23rd.
`
`
`The Court: All right.
`
`Exhibit N, 10/14/22 Tr. at 14; see also id. at 12 (The Court: “But yes, the Court, did appoint the firm,
`and Mr. Drury was at the firm at that time.”).
`
`
`
`H.
`
`The Court Should Clarify That It Appointed L&L To Represent The Class And
`Allow L&L To Remain Serving In That Role
`In a class context, the fact that individual class members (albeit named class members) wish
`
`to have Mr. Drury continue to represent them is far less relevant than in other, non-class cases
`involving disputes over who represents the “client.” The client here is the class, so the desires of Mr.
`Mutnick and a few others (as expressed through Mr. Drury) should not trump those of every other
`class member whose interests would be better served by having L&L remain in its role. This is true
`for at least several reasons.
`
`Most basically, this Court already chose L&L from among many other amply-qualified
`national class action law firms because the firm’s attributes justify that appointment. L&L has
`proceeded to litigate the case aggressively and effectively. Roughly a half-dozen of the firm’s lawyers
`have worked on the case at one time or another, and there is no good reason to remove us.
`
`If anything, L&L’s ability to obtain the best results for the class have only improved. The
`aforementioned Rogers trial ended in a jury verdict on October 12, 2022. The jury was out for only an
`hour, and the verdict was $228 million.
`
`The Rogers verdict changes the BIPA landscape dramatically. Multiple giant law firms
`defending BIPA cases were involved on the defense side, and the rest of the defense bar followed the
`case closely. The reason it was the only BIPA case ever to go to trial rather than settle was because
`those defendants believed they would win. They were mistaken. L&L’s involvement ensured that the
`Rogers class got full value for their claims as opposed to selling them short. For these reasons, the
`Clearview class would be very well-served by continuing to be represented by a law firm that has
`proved it can win these trials.
`
`
`
`
`9
`
`

`

`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 11 of 19 PageID #:9835
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`Conversely, it is difficult to see how the class’ interests would truly be maximized by being
`
`represented by Mr. Drury as a solo practitioner. To be clear, L&L by no means intends disrespect to
`solo practitioners. Twenty-five years ago, L&L was itself started by a solo practitioner who practiced
`law out of his Chicago apartment for the first several years of the firm’s existence. If anything, that
`experience makes L&L even more cognizant of the very real resource constraints facing small firms
`battling against giant law firms in complex litigation.
`
`In Mr. Drury’s case, the problem is magnified. When he resigned, Mr. Drury also persuaded a
`second L&L client (Steven Vance) to follow him and fire our firm.3 That other client is the lead class
`member in seven different other class actions filed against IBM, Google, Amazon, Microsoft, and
`others. By any fair accounting, that is a lot of complex class action law suits for a single lawyer to
`litigate against some of the biggest defense firms in the country. It would hardly be optimal for the
`Clearview class to be represented by a single lawyer whose attention will be so divided.4
`
`Most troubling about the situation was Mr. Drury’s attempt to force L&L off the case. It
`might be different if Mr. Drury had started his own firm and discussed with L&L an arrangement to
`work on the case together, but instead he simply tried to fire L&L from the case so he can try to claim
`a fee that L&L would have received. How is the latter even remotely in the class’ best interests? The
`inference that Mr. Drury is pursuing his personal interests at the expense of the class is unavoidable.
`
`Also disturbing is the timing. Other than the fact that the prospect of a big victory for our firm
`at a landmark BIPA trial might have complicated Mr. Drury’s attempts to persuade the clients to
`follow him out the door, what was the urgency try to fire us? Again, the only possible conclusion is
`that Mr. Drury is committed to his own economic interests to the exclusion of the class.
`
`
`
`
` 3 Mr. Drury was able to build the two personal relationships that allowed this to happen because
`the firm trusted him with its clients.
`
` 4 If there were any doubt, Mr. Drury distributed a press release declaring that he will also be
`focusing on not one but three “core” practice areas, including education rights.
`
`
`
`
`10
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`

`

`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 12 of 19 PageID #:9836
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`Mr. Drury’s Arguments Are Unpersuasive
`
`I.
`
`
`1. Mr. Drury’s Name On The Order Appointing Class Counsel Does Not
`Justify A Different Result
`As summarized above, on August 14, 2020, the Court originally appointed Mike Kanovitz
`
`and Scott Drury of L&L as interim lead class counsel in the Mutnick litigation. R.90. However, when
`it came time to file a similar motion in the MDL litigation on February 23, 2021, Mr. Drury pulled a
`fast one. Near the close of business on the date the motion was due, Mr. Drury made the final draft
`available to L&L partners Mr. Loevy and Mr. Kanovitz.
`
`Reviewing it for the first time, the L&L lawyers were concerned that Mr. Drury had drafted it
`in such a way that he, not the firm, was named class counsel. In fact, the whole motion was about
`himself. R.10. There was much back and forth, with Mr. Drury demanding that his name only be on
`the proposed order. He insisted that it had to be done this way to protect the class, because if our
`motion included multiple attorneys, the firm would risk not being appointed at all. See Exhibit O.
`
`Mr. Kanovitz literally directed Mr. Drury to include Mr. Kanovitz’ name too, but Mr. Drury
`refused, confirmed in writing. See Exhibit O. Moreover, Mr. Drury’s purported reason (courts would
`not grant applications from more than one attorney from the same firm) was exposed as pretext: Mr.
`Kanovitz offered to allow just Mr. Drury’s name if the Court for some reason balked at appointing
`more than one attorney, but Mr. Drury still refused. Nearing 10:00 p.m. on the date the motion was
`due -- a deadline that could not be extended5 -- Mr. Kanovitz realized there was not enough time to
`redraft the motion Mr. Drury had drafted (a motion that largely referred to Mr. Drury to the near total
`exclusion of the firm, which somehow merited only one paragraph at the very end). R10. Any lack of
`unanimity within our own ranks obviously would have risked losing the appointment given the
`vigorous competition from other firms, so Mr. Kanovitz decided he had to capitulate and trust Mr.
`Drury. Mr. Kanovitz’s confirming email, dated February 23, 2021, at 9:54 p.m., stated as follows:
`
`
`
` 5 This deadline could not be missed. All firms seeking to be lead class counsel had the same
`deadline, and were filing simultaneously.
`
`
`
`
`11
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`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 13 of 19 PageID #:9837
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`Scott,
`
`As we discussed tonight, Jon and I are very concerned to have learned today that
`you are seeking to get yourself appointed instead of both you and I. The fact that you have
`refused my suggestion we ask the Court to appoint both of us (and to tell the Court it should
`be just you if she insists on only one of us) did not inspire confidence either, especially
`coming on the heels of you telling us again just yesterday that you do not feel you have
`been treated fairly. We also hear you saying that you are unwilling to accept any
`compromise and that the only outcome whatsoever must be a motion seeking you as the
`sole lead counsel.
`
`Accurately or not, all of this feeds a concern on our part that if we acquiesce to your
`way of doing this, you could decide to leave the firm and use your lead counsel role to take
`this case with you. When we expressed that to you, you represented that you have no
`intention of doing that.
`
`Trust is vital to our continued ability to work together and I very much want to be
`able to trust you. So that is what I am going to do. I accept your word as a gentleman.
` --Mike
`
`See Exhibit O.6
`
`
`
`
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`As stated, at the October 14 hearing, this Court explained its belief and understanding that its
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`resulting order, R.25, had granted a class counsel motion appointing L&L as a firm. See Exhibit N.
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`It turned out, in other words, that the L&L was not the only one misled by Mr. Drury.
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`2. Mr. Drury’s Prior Litigation Role Does Not Justify A Different Result
`
`
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`Based on his recent statements, Mr. Drury apparently intends to try to claim all of the credit
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`for the case’s progress. This is overstatement. Mr. Drury has been the lead attorney and public face,
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`but as described above, this has been a team effort. And to replace Mr. Drury’s role in day-to-day
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`leadership of the firm’s privacy practice, L&L has also already hired another extremely- qualified
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`lawyer, Tom Hanson, who has 20+ years of relevant complex litigation experience.
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`
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`Nor is it especially relevant that Mr. Drury has billed more of the hours to date. The firm put
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`Mr. Drury in charge of the case for the discovery phase. That is a standard model for litigation at our
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` 6 Mr. Drury responded by claiming that he was seeking appointment of just himself for one reason
`only: because it “allows for the best chance of being appointed.... I believe the dual-appointment
`approach described in your email would have jeopardized our application for the reasons we
`discussed.” See Exhibit O. In hindsight, Mr. Drury was less than candid.
`
`
`
`
`12
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`

`

`Case: 1:21-cv-00135 Document #: 484 Filed: 10/22/22 Page 14 of 19 PageID #:9838
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`firm, and all others. Someone other than the most senior partners has to be assigned the day-to-day
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`responsibility. That Mr. Drury was very involved in the litigation does not make this “Mr. Drury’s
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`case” as opposed to a case of the firm. Moreover, now that the case is proceeding to settlement
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`discussions, summary judgment, and trial, L&L’s senior partners -- Mr. Loevy and Mr. Kanovitz --
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`will assume an ever increasing responsibility, and will be personally involved in the settlement
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`negotiations and trial.
`
`
`
`
`
`
`
`3.
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`Mr. Drury’s Pretextual Excuses For Resigning
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`The elephant in the room is whether Mr. Drury is going to claim in response that he had “no
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`choice” but to resign and try to take the cases with him. At the hearing, Mr. Drury suggested he does
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`not want to open that door to a public airing at this time:
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`
`
`Your Honor, I guess we will file something as well related to the circumstances. My
`concern is, is that, you know, there -- there’s a lot of history here, and I’m just hoping
`that, you know this isn’t going to be -- we plan to keep it related to the issues before
`your Honor. And I hope that Loevy & Loevy will do the same, because I don’t think,
`you know -- there may be a time and place to litigate the issues between myself and
`Loevy & Loevy. I don’t think it’s before Your Honor in this Courtroom.
`Exhibit N, 10/14/22 Tr. at 13.
`
`If Mr. Drury’s response brief does try to claim there were reasons why he had to resign and
`take the cases with him, our reply will provide the full and true context. But for now, because Mr.
`Drury is correct that these issues are not technically necessary for the Court’s decision, L&L will
`leave it at this: the firm and Mr. Drury have a difference of opinions about why he did what he did.
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`J. What the Court Should Do
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`L&L should remain lead class counsel. This will maximize the class’ best interests in all
`respects. The class will continue to benefit by being represented by a law firm that does superior legal
`work, and a firm that Clearview knows will not back do