The Seventh Circuit has declined to revisit its ruling affirming that a putative class action brought under Illinois’ Biometric Information Privacy Act (“BIPA”) should be heard in state court, rather than federal court.  In an Order denying defendant Clearview AI’s petition for rehearing en banc in Thornley v. Clearview AI, No. 20-3249, the court noted that the members of the original panel that heard the case had all voted to deny panel rehearing, and that no other judge had requested a vote on the petition for rehearing.

CPW previously covered the Seventh Circuit’s decision and Clearview’s petition for rehearing.  As a brief reminder, Plaintiffs had brought suit in state court, alleging violations of BIPA §§ 14/15(a), (b), and (c).  Clearview removed to federal court, and Plaintiffs filed a motion to remand, claiming they lacked Article III standing, which is necessary for suit in federal court and requires that a plaintiff show: (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.  The court found for Plaintiffs, and the Seventh Circuit affirmed the district court’s remand.  The Seventh Circuit found that the complaint had not sufficiently shown an injury in fact: this was likely a strategic choice by Plaintiffs, who likely preferred to sue in state court rather than federal court, but the Thornley court noted this was an acceptable strategy for Plaintiffs to employ.

Thornley will likely not be the first BIPA case this year in which the parties dispute Article III standing to determine whether the appropriate forum is state or federal court.  It also presents a unique situation in that plaintiffs were the parties disputing that they had Article III standing, as defendants would traditionally be the parties to dispute that plaintiffs have standing to sue.  This may be a growing trend as more BIPA lawsuits are filed; defendants should take extra care to examine the way that a complaint alleging violations of BIPA is pled.