In its latest filing in Thornley v. Clearview AI, No. 20-3249, defendant Clearview AI petitioned the Seventh Circuit to stay the issuance of its mandate in the litigation because it plans to file a petition for writ of certiorari with the Supreme Court.  The Seventh Circuit has not yet issued its mandate following its decision earlier this month to deny rehearing of its decision affirming that Plaintiffs’ putative class action brought under Illinois’ Biometric Information Privacy Act (“BIPA”) should be heard in state court, rather than federal court.

While Clearview has not yet filed its petition for certiorari, its filing with the Seventh Circuit gives a preview of the question it will ask the Supreme Court to clarify: whether, under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), an allegation of a statutory violation necessarily gives rise to a concrete and particularized injury-in-fact that is necessary for Article III standing.  A plaintiff must have Article III standing to sue in federal court, which requires that the plaintiff prove: (1) an injury in fact; (2) causation of the injury by the defendant; and (3) that the injury is likely to be redressed by the requested relief.  In Spokeo, the Supreme Court found that a statutory violation can be sufficient to constitute an injury in fact, but did not provide analysis of which types of statutory violations necessarily implicate concrete and particularized injuries in fact.

Throughout the procedural history of Thornley, Clearview has consistently alleged that the BIPA violations alleged in Plaintiffs’ complaint are sufficient for Article III standing, because violations of BIPA constitute a concrete and particularized harm given the privacy concerns implicated in the statute.  Plaintiffs had alleged a statutory violation of BIPA, section 15(c), which prevents a private entity from selling or profiting from an individual’s biometric data, on the basis of Clearview selling access to its digital database containing Plaintiffs’ biometric identifiers or information.  Plaintiffs have argued that the action should play out in state court because the complaint intentionally only alleges a procedural violation of BIPA, which is not itself a sufficient injury in fact to confer Article III standing upon Plaintiffs.  The district court previously found, and the Seventh Circuit affirmed, that it was permissible for Plaintiffs to take advantage of the fact that Illinois permits suits under BIPA that only allege procedural violations of the statute, and that Plaintiffs had not alleged a concrete and particularized harm in alleging the specific violations of BIPA they raised.

Clearview’s petition would give the Supreme Court the opportunity to clarify the types of statutory violations that necessarily give rise to Article III standing under Spokeo, and any decision would have a significant impact on the wave of BIPA legislation that has been brought since BIPA became law in 2008.  While the jury is out on whether the Supreme Court will grant certiorari, it already did so earlier this year for a key question of Article III standing under the FCRA.