Case: 1:21-cv-00135 Document #: 504 Filed: 11/23/22 Page 1 of 5 PageID #:10450
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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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`ORDER
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`On March 10, 2021, this Court appointed Scott Drury, counsel with Loevy & Loevy
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`(“Loevy”), to the role of interim lead counsel of this multidistrict litigation. On September 23, 2022,
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`after one-and-half years of litigation under this appointment, Drury terminated his employment with
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`the firm to operate as a solo practitioner. Drury notified the Court of this change on September 28,
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`2022 in a perfunctory change of address filing as opposed to alerting the Court of this major shift in
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`the representation dynamics. Six days later, five attorneys of record from Loevy filed motions for
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`leave to withdraw their appearances stating that “Scott Drury continues to represent Plaintiffs.” The
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`Court set a status at which the Loevy lawyers clarified that they did not wish to withdraw. Rather,
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`they filed the motions upon their clients’ requests as communicated through Drury, who intended to
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`proceed as interim lead counsel without Loevy. Thereafter, Loevy moved to clarify that the Court
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`previously appointed the Loevy firm as interim lead counsel, not the individual Scott Drury. Upon
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`presentment of their motion for clarification, Loevy made an oral motion to withdraw the motions
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`for withdrawal.
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`For the following reasons, the Court grants Loevy’s motion for clarification [484] and
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`clarifies that it appointed the firm as interim lead counsel. Plaintiffs’ counsel are to meet and confer
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`as to the division of responsibilities and the method of lead counsel compensation and submit their
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`proposals to the Court by December 15, 2022. The Court also grants Loevy’s oral motion to
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`withdraw the motions to withdraw appearances of Michael Kanovitz, Arthur Loevy, Jon Loevy,
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`Megan Pierce, and Elizabeth Wang [463, 464, 465, 466, 467]. For the reasons stated in her motion,
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`Karen Newirth is granted leave to withdraw her appearance [462].
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`DISCUSSION
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`On August 13, 2020, two attorneys from Loevy—Scott Drury and Mike Kanovitz—applied
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`for appointment as interim lead counsel in Mutnick v. Clearview, citing in support the history and
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`reputation of the firm as well as the attorneys’ individual accomplishments. (See 20-cv-00512 at Dkt.
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`88, 88-1.) The Court ordered their appointment. After the transfer of cases into this multidistrict
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`litigation (“MDL”), Drury again moved for appointment as interim lead counsel of the larger MDL.
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`This time, he applied without co-counsel Kanovitz. He did, however, again apply in his position as
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`counsel with Loevy and attached Loevy’s firm resume as evidence of its reputation and experience.
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`(Dkt. 10-2.) Ultimately, the Court appointed “Scott R. Drury of Loevy & Loevy as interim lead
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`counsel” for the MDL. (Dkt. 25.)
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`Though this matter has devolved into disarray, the issue before the Court is quite simple:
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`who did the Court appoint as interim lead counsel, and may they continue as such? At bottom, the
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`parties disagree about the interpretation of the Court’s appointing interim lead counsel. Loevy
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`contends that the Court appointed the firm as a whole, while Drury argues that he alone was
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`appointed and should be permitted to continue in that role as a solo practitioner. The Court now
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`clarifies that it appointed Scott Drury to the extent that he served as counsel of Loevy, not as an
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`individual. To be sure, Drury’s litigation credentials and experience in this district bolstered Loevy’s
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`application for interim lead counsel. In its appointment order, the Court lauded Drury’s quick
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`action in filing the case on behalf of the Mutnick class, Drury’s BIPA experience relative to the other
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`applicant, and his cooperation with plaintiffs’ counsel for the other multidistrict cases. But the
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`Court was persuaded by Loevy’s presence in the case as a well-resourced firm with documented
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`expertise in class action litigation. Had Drury sought the interim lead counsel position as a solo
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`practitioner in March 2021, as he does now, the Court would not have appointed him—a fact that
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`no one disputes. For these reasons, the Court clarifies that it appointed Loevy as interim lead
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`counsel.
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`The next question is whether Loevy may procedurally remain as interim class counsel.
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`Drury contends that because he took the individual clients Loevy represented in this matter to his
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`solo practice, Loevy does not represent a named plaintiff and cannot continue as class counsel. This
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`issue involves the effects of appointing class counsel under Rule 23, which requires some context.
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`Traditionally, the Court waits until the class certification stage to appoint class counsel. Fed. R. Civ.
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`P. 23(g)(1). Prior to certification, counsel pursuing a class action should act in the best interests of
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`the putative class. Manual for Complex Litigation (“MCL”) § 21.12 (“Rule 23 and the case law make
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`clear that, even before certification or a formal attorney-client relationship, an attorney acting on
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`behalf of a putative class must act in the best interests of the class as a whole.”). Upon appointment,
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`that requirement is narrowed and lead counsel’s “primary obligation… is to the class rather than to
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`any individual members of it.” Fed. R. Civ. P. 23(g)(1). Unlike a conventional attorney-client
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`relationship, the class representative no longer possesses the power to direct the actions of lead
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`counsel nor the “unfettered right to ‘fire’” her. Fed. R. Civ. P. 23(g)(1)(B) advisory committee’s note
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`(2003). The Court may also preemptively designate interim class counsel before certification to act
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`on behalf of the putative class under Rule 23(g)(3). While not always necessary, “[i]n some cases…
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`there may be rivalry or uncertainty that makes formal designation of interim counsel appropriate.”
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`Fed. R. Civ. P. 23(g)(2)(A) advisory committee’s note (2003).
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`Drury contends that an interim lead counsel appointment does not confer the same power
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`on the lead counsel. Rather, he argues that class representatives may fire interim lead counsel,
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`namely Loevy, because the legal effects of appointment only attach to class counsel at the
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`certification stage. There is no basis for such a distinction. The Court appointed interim class
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`counsel using the same standards as it would at the certification stage and to achieve the same
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`certainty and stability in these MDL proceedings as an appointment during certification. Therefore,
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`the appointment won’t be undone without further order of Court.
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`It is true that Loevy’s representation of the class without direct representation of a named
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`plaintiff is an uncommon circumstance. It is not, however, unheard of. In the context of class
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`counsel appointments, judges have opted to implement a bidding procedure through which various
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`law firms petition to serve as class counsel. See generally Laural L. Hooper & Marie Leary, Auctioning
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`the Role of Class Counsel in Class Action Cases: A Descriptive Study, 209 F.R.D. 519 (2001). As a result of
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`the bidding process, courts have appointed law firms who had not filed a preliminary complaint in
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`the case or represented a named plaintiff. Id. at 554–55. Here, allowing Loevy to continue as lead
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`counsel despite the election of its former clients to follow Drury to his solo practice is not as drastic
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`a measure because Loevy has been with the case since its inception.
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`For these reasons, Loevy can continue to serve the class as interim lead counsel. All of
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`plaintiffs’ counsel are forewarned, however, that the Court retains the ability to amend its
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`appointment at any time if it is in the best interest of the class. Additionally, the appointment of
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`lead counsel will be revisited at the class certification stage.
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`Given the state of their working relationship, plaintiffs’ counsel1 are ordered to complete the
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`following tasks by December 15, 2022. First, they shall meet and confer regarding the organization
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`1 The following names are listed as plaintiffs’ counsel on the most recent filings prior to the present motion: Jonathan
`Loevy and Michael Kanovitz of Loevy & Loevy; Scott Drury of Drury Legal; Scott Bursor and Joshua Arisohn of
`Bursor & Fisher, P.A.; Frank Hedin of Hedin Hall LLP; Michael Drew of Neighborhood Legal LLC; Michael Wood and
`Celetha Chatman of Community Lawyers LLC; and Steven Webster and Aaron Book of Webster Book LLP. To the
`extent that other plaintiffs’ counsel of record have taken an active role in this litigation, they shall also meet and confer
`with counsel and have their names and duties identified in the order described supra.
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`and coordination of their litigation efforts. Plaintiffs’ counsel shall jointly draft an order for the
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`Court’s review and approval broadly outlining their responsibilities going forward. See MCL
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`§§ 10.222 (describing division of plaintiff counsels’ powers and responsibilities) and 40.22 (sample
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`order). In an effort to prevent future attorney fee disputes, Loevy shall also propose their
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`anticipated method of compensation. Id. § 14.215; see also Edward K. Cheng et al., Distributing
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`Attorney Fees in Multidistrict Litigation, 13 J. Legal Analysis 558 (2021). The Court encourages Loevy to
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`take input from all plaintiffs’ counsel to resolve this issue amicably and to avoid a litany of
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`objections to their proposal. Failure to resolve these issues will require their presentment to the
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`Court on December 16, 2022 at 10:00 a.m.
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`IT IS SO ORDERED.
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`_____________________________
`SHARON JOHNSON COLEMAN
`United States District Court Judge
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`DATED: 11/23/2022
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