Case: 1:21-cv-00135 Document #: 494 Filed: 11/01/22 Page 1 of 21 PageID #:10177
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`
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`In re: Clearview AI, Inc., Consumer Privacy
`Litigation
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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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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`OPPOSITION TO LOEVY & LOEVY’S 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
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`Case: 1:21-cv-00135 Document #: 494 Filed: 11/01/22 Page 2 of 21 PageID #:10178
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES .......................................................................................................... ii
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`INTRODUCTION ...........................................................................................................................1
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`FACTUAL BACKGROUND ..........................................................................................................3
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`ARGUMENT ...................................................................................................................................4
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`The Court Should Summarily Deny the Improper Motion. .....................................4
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`The Court Unambiguously Designated Drury as Interim Class Counsel. ...............5
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`The Court Should Retain Drury in His Leadership Position. ..................................7
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`A.
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`B.
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`Drury has Been the Driving Force Behind the MDL, and His
`Depth of Knowledge Is Irreplaceable at This Stage. ...................................7
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`To Allay Any Staffing or Financing Concerns, Drury Respectfully
`Requests that Leadership Team Members Arisohn and Hedin
`Be Designated as Interim Co-Lead Counsel with Drury. ............................9
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`The Court Should Reject L&L’s Effort to Be Designated Interim
`Lead Counsel. ........................................................................................................10
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`A.
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`L&L Does Not Represent Any Plaintiff in the MDL. ...............................10
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`B.
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`L&L Has Demonstrated Its Inadequacy in Myriad Ways. ........................12
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`I.
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`II.
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`III.
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`IV.
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`V.
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`1.
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`2.
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`3.
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`L&L Does Not Know What the Case Is About. ............................12
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`L&L Has Violated Its Duties to Plaintiffs and Class
`Members. .......................................................................................12
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`L&L Sought to Thwart Drury’s Successful Interim Lead
`Counsel Application to Serve Its Own Self Interests.....................13
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`L&L Rejected an Offer to Work Collaboratively with
`Drury Legal, Bursor and Hedin Hall..............................................14
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`4.
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`Drury Departed L&L Due to Various Ongoing Disputes. .....................................15
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`CONCLUSION ..............................................................................................................................16
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`i
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`Case: 1:21-cv-00135 Document #: 494 Filed: 11/01/22 Page 3 of 21 PageID #:10179
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`TABLE OF AUTHORITIES
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`CASES
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`Birchmeier v. Caribbean Cruise Line, Inc., No. 1:12-cv-04069 (N.D. Ill.) ............................13, 14
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`Dowd and Dowd, Ltd. v. Gleason, 693 N.E.2d 358 (Ill. 1998) ...............................................15, 16
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`In re: Navistar Maxxforce Engines Mkt’ing Sales Practices and Products Liability Litig.,
`No. 14-cv-10318, 2015 WL 1216318 (N.D. Ill. Mar. 5, 2015) .................................................9, 10
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`In re: TikTok, Inc., Consumer Privacy Litig., No. 1:20-cv-04699 (N.D. Ill.) ...............................13
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`In re: Zoom Video Comm’ns, Inc. Privacy Litig., No. 5:20-cv-02155-LHK (N.D. Cal.) ..............13
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`Mutnick v. Clearview AI, Inc., No. 1:20-cv-512 (N.D. Ill.) .......................................................7, 14
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`Simmons v. Motorola Solutions, Inc., No. 1:20-cv-1128 (N.D. Ill.) ................................................1
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`U.S. v. Misc. Firearms, Explosives, Destructive Devices and Ammunition,
`376 F.3d 709 (7th Cir. 2004) .........................................................................................................12
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`STATUTES AND RULES
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`Fed. R. Civ. P. 5.2 ............................................................................................................................4
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`Fed. R. Civ. P. 23(g) ..........................................................................................................10, 11, 16
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`Fed. R. Civ. P. 24 .....................................................................................................................1, 4, 5
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`Ill. R. Prof. Cond. 1.16(a)(3) ..........................................................................................................11
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`Ill. R. Prof. Cond. 5.6(a) ................................................................................................................15
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`Local Rule 7.1 ..................................................................................................................................4
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`OTHER AUTHORITIES
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`Mary F. Andreoni, Leaving a Law Firm: A Guide to Ethical Obligations
`in Law Firm Departure, Illinois ARDC (Jan. 2020) .....................................................................11
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`Fed. R. Civ. P. 23, advisory committee’s notes .............................................................................11
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`Merriam-Webster Online Dictionary,
`https://www.merriam-webster.com/dictionary/designate ........................................................11, 12
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`ii
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`1 Newberg and Rubenstein on Class Actions § 3:82 (6th ed.) ......................................................11
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`Manual for Complex Litig. (4th), § 21.11 ......................................................................................12
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`iii
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`Case: 1:21-cv-00135 Document #: 494 Filed: 11/01/22 Page 5 of 21 PageID #:10181
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`INTRODUCTION
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`Loevy & Loevy (“L&L”) agrees that “[Scott R.] Drury is a skilled attorney, who has been
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`very involved in this litigation to date.” See Dkt. 484 at 2.1 It further agrees that Drury “is the
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`lawyer with the most hours in the case” who has “value to add.” Id. at 15. Indeed, it is striking that
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`as L&L makes false claims regarding Drury’s character and intent, it emphasizes its hope that
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`Drury will continue working with L&L on the case. Id. at 2-3, 15. Underlying L&L’s irreconcilable
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`positions is its knowledge that it cannot lead this multidistrict litigation (the “MDL”) on its own.
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`As counsel for each of the non-Drury Plaintiffs attests, removal of Drury from his leadership
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`position will prejudice the named Plaintiffs (“Plaintiffs”) and putative class members (“Class
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`Members”). See Ex. 12 (Arisohn Decl.) ¶ 6; Ex. 2 (Hedin Decl.) ¶ 6; Ex. 3 (Drew Decl.) ¶ 12; Ex.
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`4 (Webster Decl.) ¶ 12. The unanimous support for Drury to continue leading this MDL (see Exs.
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`1-4) is a testament to his leadership to date and his ability to work harmoniously with others.
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`In contrast, L&L does not even know what this case is about, incorrectly describing it as
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`involving the “sweeping of mug shot photos from the internet.” Id. at 3 (emphasis added). While
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`Drury previously led litigation at L&L involving the scraping of mug shot photos, see Simmons v.
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`Motorola Solutions, Inc., No. 1:20-cv-1128 (N.D. Ill.), that is not this case.
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`Indeed, L&L’s motion itself should disqualify it from consideration as interim lead
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`counsel. While Jon Loevy (“Loevy”) sought and was granted leave to file a “motion to intervene,”
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`having claimed that L&L had class members seeking its representation, L&L filed a completely
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`different “motion for clarification” brought on its own behalf. In fact, L&L does not appear to
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`actually represent any putative class members. As such, L&L makes no effort to address Fed. R.
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`Civ. P. 24. The Court should find L&L has forfeited any ability to intervene at a later date.
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`1 Citations to docketed entries are to the CM/ECF-stamped page numbers.
`2 Exhibit references are to exhibits to the Declaration of Scott R. Drury filed contemporaneously herewith.
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`1
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`In addition, the motion has prejudiced Plaintiffs by disclosing one of Plaintiffs’ consulting
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`experts (see Dkt. 484-13) and publicly disclosing confidential settlement communications.
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`Further, the motion misrepresents facts about Drury and about L&L’s role in this MDL. Finally,
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`the motion is procedurally defective in myriad ways. In short, L&L has failed its audition for
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`interim lead counsel.
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`Recognizing the motion fails on the merits, L&L uses it as a vehicle to muddy-up Drury.
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`To be clear, Drury did not leave L&L to “maximize his own personal stake” in this case or any
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`other, as discussed more fully below. At all times, Drury has acted in the best interests of Plaintiffs
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`and Class Members.
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`Based on the actual facts, it is evident that Class Members’ interests will be best served by
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`having Drury continue in his role as interim lead counsel with the continued support of co-counsel.
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`Drury has spearheaded this litigation from the beginning, and he has proven to be a zealous
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`advocate for the putative class. Removing him from the case at this late date would prejudice
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`Plaintiffs’ and Class Members’ position going forward. Meanwhile, L&L wants to take over this
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`case even though its remaining attorneys have hardly been involved, it has limited data-privacy
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`class action experience, and it does not even know what this case is about.
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`For all of these reasons, as detailed below, the Court should deny L&L’s motion and grant
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`L&L’s various pending motions to withdraw (Dkt. 462-67). At the same time, Drury respectfully
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`requests that the Court modify the order designating Drury as sole interim lead counsel and
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`designate Joshua D. Arisohn of Bursor & Fisher, P.C. (“Bursor”) and Frank S. Hedin of Hedin
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`Hall LLP (“Hedin Hall”) as interim co-lead counsel along with Drury to allay any concerns the
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`Court may have regarding resources. Arisohn and Hedin have worked on the case from the outset.
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`2
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`FACTUAL BACKGROUND
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`L&L’s motion misrepresents Drury’s background, the circumstances of his hiring and his
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`role at the firm. As these matters are relevant to Drury’s designation as interim lead counsel, he
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`corrects the record here.
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`Drury is a former Assistant U.S. Attorney for the Northern District of Illinois, an adjunct
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`professor at the Northwestern Pritzker School of Law, a member of this Court’s Trial Bar and a
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`former Illinois State Representative. Drury Decl. ¶ 2. Drury has continuously practiced law since
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`1998 (never taking a six-year break, as alleged in the motion). Id.
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`Drury joined L&L in 2018. Id. ¶ 3. When Drury started at the firm, he did not have a formal
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`title but was told by Loevy that he was being compensated at the partner level. Id. Drury eventually
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`was given the title of “Counsel.” Id.; see Ex. 5 (Fee Petition Decl.) ¶ 3. Drury was a prized recruit
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`for L&L, as Loevy himself acknowledged when Drury accepted L&L’s offer: “It’s truly a
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`compliment to all of us that people with all kinds of options to work anywhere they choose are
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`deciding to join our team.” Ex. 6 (8/6/2018 Loevy email).
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`During the interview process, Drury pitched the formation of a privacy practice, and he
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`ultimately founded and led that practice at L&L. Drury Decl. ¶ 4; Ex. 7 (L&L website – Drury
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`biography). Drury largely worked independently in the privacy practice and was not supervised in
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`his day-to-day activities. Drury Decl. ¶ 4. The only attorney/law clerk consistently assigned to the
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`privacy practice besides Drury was Andrew Miller, an inexperienced but extremely bright
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`individual who until April 2021 was akin to a law clerk because he was not yet licensed to practice
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`law. Id. ¶ 5.
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`3
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`ARGUMENT
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`The Court Should Summarily Deny the Improper Motion.
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`During the October 14, 2022 status hearing, Loevy represented: (a) that L&L had “been in
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`I.
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`contact with other members of the class who have raised concerns that they don’t want to be
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`represented by [Drury] . . . and that they want [L&L] to remain”; and (b) sought the opportunity
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`to submit a brief. Dkt. 484-14 at 7:12-16, 8:7-10. When the Court asked what Loevy specifically
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`wanted to file, he stated a “motion to intervene on behalf of other class members who want [L&L]
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`to be lead class counsel, and we will be asking that Your Honor appoints us as the lead counsel
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`. . . .” Id. 13:5-15 (emphasis added). The Court ordered L&L to “file a motion to intervene by
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`10/21/2022.” Dkt. 481.
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`But L&L did not file any motion on October 21, 2022 and never filed a motion to intervene.
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`Instead, on October 22, 2022, L&L filed the present motion, purportedly seeking clarification of
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`this Court’s order designating interim lead counsel (the “Designation Order”). See Dkt. 484.
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`Further, the motion violates Local Rule 7.1 in that it: (a) exceeds 15 pages without prior court
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`approval; and (b) does not have the necessary tables. L.R. 7.1. And, as originally filed, the motion
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`violated Fed. R. Civ. P. 5.2, because it disclosed Drury’s birthdate, as well as logins and passwords.
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`Fed. R. Civ. P. 5.2; Ex. 8 (10/27/2022 Drury email).
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`L&L’s disregard for the Court’s Order and procedural rules is not academic. Instead of
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`filing a motion to intervene and confronting the exacting standards of Fed. R. Civ. P. 24, L&L
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`filed the instant motion, which wholly seeks to sidestep Rule 24. Indeed, without addressing Rule
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`24 at all, in the motion’s last sentence, L&L asks the Court to simply grant it “leave to permit new
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`Class Members to intervene . . . as additional named Plaintiffs represented by L&L.” Dkt. 484 at
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`18. L&L does not identify the purported “Class Members” or state what type of intervention they
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`4
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`seek (as of right or permissive). See id. L&L makes no effort to explain how it knows that the as-
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`of-yet unidentified “Class Members” actually are in any alleged class. See id.
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`As demonstrated by the two motions to compel and the motion for discovery sanctions
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`Drury filed against the Clearview Defendants (Dkt. 213, 383, 474), obtaining information from
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`the Clearview Defendants regarding the existing Plaintiffs has been tortuous and lengthy. There is
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`no reason to believe the process would be any different for a new plaintiff. By failing to file a
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`motion to intervene, L&L prevented consideration of this threshold issue (i.e., whether any
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`putative intervenor is in the class) and every other Rule 24 factor. Rather than give L&L an
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`opportunity to further delay this matter, the Court should deny the motion and find that L&L has
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`forfeited any opportunity to intervene. As the Court previously stated, “for the class [the decision
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`as to interim lead counsel] has to be sooner rather than later.” Dkt. 484-14 at 11:24-12:1.
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`II.
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`The Court Unambiguously Designated Drury as Interim Lead Counsel.
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`While L&L claims to seek clarification, the Designation Order is unambiguous – it
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`“appoints Scott R. Drury as sole interim lead counsel.” Dkt. 25 at 1. In the Order, the Court found
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`that “from the outset, Drury has taken the lead in aggressively moving this litigation forward,”
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`including filing a motion for preliminary injunction “which resulted in defendants changing many
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`of their business practices to avoid court-mandated changes.” Id. at 2. The Court also highlighted
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`Drury’s successful efforts to consolidate the various cases filed against Clearview AI, Inc.
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`(“Clearview”) in this District and his efforts to organize and build coalitions amongst plaintiffs’
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`counsel. Id. The Court further found that “Drury’s background and experience in bringing BIPA
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`cases far surpasse[d] [his challenger]” and that “Drury’s superior knowledge of BIPA weigh[ed]
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`heavily in favor of appointing Drury as interim lead counsel.” Id. at 3. After describing the
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`5
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`widespread support for Drury, the Court found that “it is abundantly clear that Drury will best be
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`able to represent the interests of all of the class members.” Id.
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`It is undisputed that Drury worked at L&L at the time of the Designation Order. However,
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`the Designation Order gives no indication that Drury’s affiliation with L&L was a significant
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`factor, if a factor at all, in its decision. See, generally, Dkt. 25.
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`Relatedly, Drury readily acknowledges that the materials he submitted in support of his
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`interim lead counsel application contain L&L’s class action experience and its financial
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`commitment to the case. See Dkt. 10-1 ¶ 21, Dkt. 10-2 at 3-9. Importantly, none of that experience
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`involved privacy class actions beyond those filed as part of the privacy practice Drury founded
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`and led. Drury Decl. ¶ 6; Dkt. 10-2 at 5. Moreover, based on Drury’s knowledge and experience
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`at L&L, no remaining attorney at L&L has experience working up a case alleging violations of
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`Illinois’ Biometric Information Privacy Act (“BIPA”) or other data privacy violations.3 Drury
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`Decl. ¶ 7. This is critical given that the cases comprising this MDL were transferred to this Court
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`for “coordinated and consolidated pretrial proceedings.” See Dkt. 1 at 2 (emphasis added). While
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`L&L recently assisted with trying a BIPA case, by the time it got involved, the case had been
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`pending for over three years, summary judgment had been denied and a trial date had been set. Ex.
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`10 (Rogers docket); Dkt. 484-4 ¶ 3. Further, that case involved fingerprints, not the more technical
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`issue of scans of face geometry, as is the case here. See Rogers Dkt. 103 (2d Am. Compl.).
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`As for L&L’s financial commitment, it has expended less than $33,000. See Dkt. 484-3 ¶
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`5. While the motion mentions approximately $50,000 in pending expert invoices (see Dkt. 484 at
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`6), after L&L’s termination but before it decided to bring this challenge, Drury informed Loevy
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`3 The LinkedIn profile of L&L’s new recruit, Thomas Hanson, makes no mention of BIPA or any
`background in data privacy. Ex. 9 (Hanson Linked In profile).
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`6
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`that L&L was not responsible for the payments. Drury Decl. ¶ 9. Drury has arranged for the bills
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`to come due in November 2022, hopefully after resolution of this dispute. Id.
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`Importantly, to address any concerns regarding the financing and staffing of the case now
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`that Drury has resigned from L&L, as discussed below, Drury has made arrangements with Bursor
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`and Hedin Hall to help litigate and cover the costs of this case. See, § III.B, below. Over the last
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`two years, those firms have actively worked with Drury to prosecute Plaintiffs’ claims and, unlike
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`L&L, have extensive experience with privacy class actions. See id. L&L has previously approved
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`of those firms by entering into a joint prosecution agreement with them. See Dkt. 484 at 5.
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`III. The Court Should Retain Drury in His Leadership Position.
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`A.
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`Drury Has Been the Driving Force Behind the MDL, and His Depth of
`Knowledge Is Irreplaceable at This Stage.
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`The same above-described facts the Court relied on in designating Drury interim lead
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`counsel continue to support Drury’s retention – even if Drury is compared to L&L. Drury has been
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`the driving force behind the MDL and Mutnick v. Clearview AI, Inc. (“Mutnick”), No. 1:20-cv-
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`512 (N.D. Ill.). When news of Clearview’s conduct was published in the New York Times, Drury,
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`who was on vacation with his son, sprung into action. While his son slept, Drury organized a late-
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`night conference call with Kanovitz and Miller to begin working on a complaint. Drury Decl. ¶
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`10. The client, David Mutnick, was a client of Drury’s from before Drury joined L&L. Id.
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`Drury subsequently oversaw and led the drafting of the complaint, which he signed. Id.;
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`Mutnick Dkt. 1 at 30. Drury also came up with the idea and led the effort to draft and file a
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`preliminary injunction motion. Id. Drury signed the motion. Mutnick Dkt. 32 at 1.
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`Further, Drury was solely responsible for establishing contact with plaintiffs’ counsel in
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`the numerous other cases filed against Clearview. Id. Ultimately, Drury organized conference calls
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`among plaintiffs’ counsel to discuss the case and, for those who could not attend, Drury provided
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`7
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`summaries of the calls. Id. The relationships formed then have served Class Members well by
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`largely avoiding the infighting that can plague litigation of this magnitude. The fruits of Drury’s
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`coalition-building efforts have been reflected in his multiple leadership positions throughout this
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`litigation. Id. Drury continues to enjoy unanimous support among the named Plaintiffs and their
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`counsel for him to lead this matter. See Exs. 1-4.
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`Regarding the MDL, Drury has aggressively acted on Plaintiffs’ and Class Members’
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`behalf throughout. He has played a leading role in: (a) drafting all versions of the consolidated
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`complaint; (b) the investigation and development of the newly-added California and New York
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`claims; (c) developing the successful legal theories and factual allegations as to the liability of the
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`individual Clearview Defendants, Rocky Mountain Data Analytics, LLC, the Macy’s Defendants
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`and putative defendant class members; (d) drafting and overseeing the preparation of Plaintiffs’
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`responses to Defendants’ motions to dismiss and related post-ruling motions; (e) preparing
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`Plaintiffs’ written discovery requests; (f) responding to Defendants’ written discovery; (g)
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`retaining and overseeing Plaintiffs’ experts; (h) reviewing and organizing Defendants’ document
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`productions, which collectively contain over 315,000 pages; (i) preparing Plaintiffs’ two largely
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`successful motions to compel against the Clearview Defendants (Dkt. 213, 383); (j) preparing
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`Plaintiffs’ pending motion for discovery sanctions against the Clearview Defendants (Dkt. 474);
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`(k) defeating the Clearview Defendants’ motion to compel (Dkt. 438); (l) preparing Plaintiffs’
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`forthcoming motion for class certification (Plaintiffs’ class); and (m) overseeing the preparation
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`of Plaintiffs’ forthcoming motion for certification of a defendant class. Drury Decl. ¶ 11.
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`The above list is not intended to convey that Drury has been the only lawyer working on
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`the MDL. Throughout, Drury has worked with Arisohn and Hedin (collectively, the “Leadership
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`Team”). Id. ¶ 12. Further, prior to Miller leaving L&L in December 2021, he helped prepare drafts
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`8
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`of documents, performed legal research and participated in strategy discussions. Id. Given Miller’s
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`inexperience, he did not play a leading role, and, on information and belief based on available
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`records, he billed less than 350 hours to the matter. Id. Others at L&L assisted with spot projects
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`(Dkt. 484 at 4-5) but not to the extent that would have allowed them to gain the institutional
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`knowledge needed to lead the case. Id. The various spot activities Kanovitz performed (Dkt. 484
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`at 4-5) early on do not change this conclusion. Indeed, his allegedly “instrumental” contribution
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`to the case – novel civil rights claims (id. at 3) – is not even part of the MDL.
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`As set forth in the declarations of counsel for the various non-Drury Plaintiffs, they strongly
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`support Drury remaining in his leadership role and maintain that removing Drury from that role
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`will prejudice Plaintiffs and Class Members. Ex. 1 ¶¶ 3-6; Ex. 2 ¶¶ 3-6; Ex. 3 ¶ 12; Ex. 4 ¶ 12. The
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`Court may consider this unanimous support in designating interim lead counsel as it “suggests that
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`plaintiffs’ counsel ha[s] acquired the confidence and trust of [his] colleagues.” In re: Navistar
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`Maxxforce Engines Mkt’ing Sales Practices and Products Liability Litig. (“Navistar”), No. 14-cv-
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`10318, 2015 WL 1216318, at *2 (N.D. Ill. Mar. 5, 2015).
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`Significantly, L&L has conceded Drury’s indispensable value to the case. See Dkt. 484 at
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`2-3, 13-15. Notwithstanding L&L’s spurious attacks on Drury’s character, L&L is careful to
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`compliment Drury’s legal skills and almost begs for him to remain on the case. See id. L&L’s
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`concession self-rebuts its baseless attacks and is fatal to its position.
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`B.
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`To Allay Any Staffing or Financing Concerns, Drury Respectfully Requests
`that Leadership Team Members Arisohn and Hedin Be Designated as Interim
`Co-Lead Counsel with Drury.
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`Recognizing the Court may have concerns about Drury’s ability to finance and staff the
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`MDL, Drury respectfully requests that the Court modify the Designation Order to include
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`9
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`Leadership Team members Arisohn and Hedin as interim co-lead counsel.4 Arisohn’s submission
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`in support of Drury’s leadership application (Dkt. 11), as well as the Arisohn and Hedin
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`Declarations, highlight their impressive individual and firmwide credentials that qualify them for
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`interim co-lead counsel designations. Id. at 3-7; see also Ex. 1 ¶¶ 8-16; Ex. 2 ¶¶ 8-16. Further,
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`Bursor and Hedin Hall can provide the financial and staffing resources needed to prosecute the
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`MDL. See Dkt. 11 at 4-5 (judicial findings regarding Bursor’s resources); see also Ex. 1 ¶ 16
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`(describing resources); Ex. 2 ¶ 16 (same). Moreover, Bursor and Hedin Hall bring far more data
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`privacy and BIPA experience to the table than L&L, including a recent $100 million BIPA
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`settlement with Google in a case involving scans of face geometry from photos. See Dkt. 11 at 4-
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`7 (describing BIPA and privacy experience); Ex. 1 ¶¶ 8-10; Ex. 2 ¶¶ 9-11. Counsel for Plaintiffs
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`Hall, Carmean and Roberson support Arisohn and Hedin for interim co-lead counsel positions (Ex.
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`3 ¶ 9; Ex. 4 ¶ 9), showing that they, too, have earned the confidence and trust of their colleagues.
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`See Navistar 2015 WL 1216318, at *2.
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`IV.
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`The Court Should Reject L&L’s Effort to Be Designated Interim Lead Counsel.
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`
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`While L&L claims to seek clarification of the Designation Order (Dkt. 484 at 2), as
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`discussed above, the Order clearly designated Drury (albeit while he worked at L&L). See Dkt.
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`25. Even if the Court did designate L&L, circumstances have changed so significantly since that
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`time that the Court should deny the motion and modify the designation to remove L&L. As
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`discussed below, L&L has demonstrated its inadequacy to represent Class Members in this case.
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`A.
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`L&L Does Not Represent Any Plaintiff in the MDL.
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`
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`The Drury Plaintiffs’ Representation Directives and Notices of Termination make clear
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`they terminated L&L. See Dkt. 484-8; Dkt. 489 at 6-9, 16-19. As such, L&L can no longer
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`4 If the Court prefers, Drury, Arisohn and Hedin will submit a Rule 23(g) interim lead counsel application.
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`10
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`Case: 1:21-cv-00135 Document #: 494 Filed: 11/01/22 Page 15 of 21 PageID #:10191
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`represent those clients, and the Court should grant the pending motions to withdraw (Dkt. 462-67).
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`See Ill. R. Prof. Cond. 1.16(a)(3) (discharged lawyer shall not represent a client). Relatedly,
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`because L&L could not represent the Drury Plaintiffs once discharged, its contention that it should
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`have been given more time to withdraw (Dkt. 484 at 8-9) lacks merit. Further, L&L’s contention
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`that it moved to withdraw under the threat of “sanctions” (id. at 9) is unsupported by the factual
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`record. See Dkt. 484-11; Drury Decl. ¶ 8.
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`
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`Without citing any authority, L&L contends the Representation Directives are “flawed in
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`that they fail to inform the clients that they could be represented by both firms.” Dkt. 484 at 7. Not
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`so. The options set forth in the Representation Directives closely track the options set forth in the
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`Illinois ARDC’s publication guiding attorneys on leaving a law firm. See Mary F. Andreoni,
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`Leaving a Law Firm: A Guide to Ethical Obligations in Law Firm Departure, Illinois ARDC (Jan.
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`2020) (relevant pages attached hereto as Exhibit 11). Significantly, this is the only matter in which
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`L&L has contended that the Representation Directives may be flawed, and it already has
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`withdrawn from various matters without contest. Drury Decl. ¶ 13.
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`
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`Knowing it has no client, L&L contends it does not need one because “the Court has
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`already appointed L&L.” Dkt. 484 at 8. But the authority L&L cites is inapposite because it
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`addresses the issue of whether, post-certification, an appointed class representative can fire
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`appointed class counsel. See id. (citing 1 Newberg and Rubenstein on Class Actions § 3:82 (6th
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`ed.)); see also Fed. R. Civ. P. 23, advisory committee’s notes (discussing appointed class counsel).
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`While Fed. R. Civ. P. 23(g)(1) addresses the mandatory appointment of class counsel upon
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`certification, Rule 23(g)(3) addresses the discretionary designation of interim class counsel at issue
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`here. Fed. R. Civ. P. 23(g)(1), (3). Importantly, the plain meaning of “designate” is “chosen but
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`not
`
`yet
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`installed.” Merriam-Webster Online Dictionary,
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`https://www.merriam-
`
`11
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`

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`Case: 1:21-cv-00135 Document #: 494 Filed: 11/01/22 Page 16 of 21 PageID #:10192
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`webster.com/dictionary/designate (last accessed on Oct. 27, 2022) (emphasis added); see also U.S.
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`v. Misc. Firearms, Explosives, Destructive Devices and Ammunition, 376 F.3d 709, 712 (7th Cir.
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`2004) (look to plain meaning of statutory language). Here, no class has been certified, and no class
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`representative or class counsel has been “appointed.” Without a client, L&L cannot credibly
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`contend it would seek appointment as class counsel at the certification stage.
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`
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`
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`B.
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`
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`L&L Has Demonstrated Its Inadequacy in Myriad Ways.
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`1.
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`L&L Does Not Know What the Case Is About.
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`L&L cannot lead this case because it does not even know what the case is about. According
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`to L&L, “this case involves allegations that the Clearview Defendants were sweeping mug shots
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`from the internet” in violation of BIPA. Dkt. 484 at 3 (emphasis added). Not so. This case arises
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`out of: (a) the Clearview Defendants’ widespread scraping of billions of facial images from
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`throughout the internet in order to collect victims’ biometric data; and (b) private entities’
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`subsequent obtainment of the biometric data from the Clearview Defendants. See Dkt. 428 ¶¶ 1,
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`34, 67. Moreover, while Plaintiffs allege BIPA violations, they also allege violations of New York,
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`California and Virginia privacy laws, as well as the common law, on behalf of a nationwide class
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`and various subclasses. See, generally, Dkt. 428. That L&L lacks a basic understanding of the case
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`at this late date exposes its lack of involvement and should be disqualifying.
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`2.
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`L&L Has Violated Its Duties to Plaintiffs and Class Members.
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`
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`The Manual for Complex Litigation (“MCL”) advises that designation of interim class
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`counsel may be appropriate to protect the interests of putative class members during
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`precertification activities. MCL (4th) § 21.11. Here, L&L has done the opposite. In its motion,
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`L&L recklessly and needlessly disclosed one of Plaintiffs’ consulting experts (Dkt. 484-13) and
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`confidential settlement information. Dkt. 484 at 6.
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`12
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`Case: 1:21-cv-00135 Document #: 494 Filed: 11/01/22 Page 17 of 21 PageID #:10193
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`The latter disclosure was particularly egregious because L&L’s purpose in making it was
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`to disparage Drury, not to benefit Class Members. See id. at 6. In actuality, the disclosure provides
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`further evidence of L&L’s lack of involvement in the case. Prior to the meeting at issue, Drury
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`advised Leadership Team members that the meeting was taking place. Drury Decl. ¶ 14. Notably,
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`Drury did not know the purpose of the meeting because the Clearview Defendants’ counsel did
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`not reveal it. Id.; Ex. 12 (email chain) at 2-3 (referencing “getting a beer” and no specific agenda).
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`Dru