As CPW readers may recall, in December 2020, two notable data privacy multidistrict litigations (“MDLs”) were created:  In re: Clearview AI, Inc., Consumer Privacy Litigation (“Clearview”) and In re Blackbaud, Inc. (“Blackbaud”). Since then, each case has experienced a few developments.  

First, a look at who the defendants are and how we arrived at this point.

Clearview is a facial recognition startup.  Its story began in January 2020, when the New York Times reported on Clearview’s alleged data gathering and use practices.  In a nutshell, reporters alleged that Clearview used facial recognition software to scan images that had been scrapped from the internet for purposes of creating a biometric database of scanned images that could allow persons to be identified.  The reaction was swift:  as CPW previously reported, the first lawsuit against Clearview was filed within three days of the Times’s reporting.  Eventually, 10 cases were consolidated before Judge Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois.

Blackbaud is a cloud computing provider, and its story began with a tale more commonly seen elsewhere.  The relevant lawsuits began after an alleged ransomware attack and data security breach of its systems from February 2020 to May 2020 purportedly compromised the personal information of millions of consumers doing business with entities served by Blackbaud’s cloud software and services.  Eventually, 23 cases were consolidated before Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina.

Next, a look at what has happened in each MDL, as well as a preview of upcoming events.

Since consolidation, Clearview has experienced several developments.  As active matters, the court is currently accepting briefing for lead plaintiffs’ counsel and the case was referred to Judge Maria Valdez for discovery supervision.  Previously, the first status hearing was held on February 9, 2021, and recent court filings indicate that an unsuccessful mediation session was held on February 2, 2021.  Two upcoming events include the conclusion of briefing for plaintiffs’ counsel by March 2, 2021 and the next status hearing scheduled for March 12, 2021.

Blackbaud’s docket appears to be progressing quicker than Clearview.  Like Clearview, the Blackbaud court already held one status conference (on January 29, 2021), and a new status conference is scheduled for March 19, 2021.  Unlike Clearview, however, the Blackbaud court has already selected lead plaintiffs’ counsel and, according to a February 3, 2021 order, fact sheets and proposed discovery materials are due this month.  Upcoming, the plaintiffs are expected to file a consolidated complaint no later than the beginning of April and the parties should be submitting a scheduling order for substantive dismissal motions practice as soon as possible.