IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DAVID MUTNICK, for himself and others 

similarly situated, 

Plaintiff, 

v. 

CLEARVIEW AI, INC.; HOAN TON-THAT; 

RICHARD SCHWARTZ; and CDW 

GOVERNMENT LLC, 

 Defendants. 

)

)

)

)

)

)

)

)

)

)

)

Case No. 20 C 512 

Judge Sharon Johnson Coleman 

ANTHONY HALL, on behalf of himself and 

all others similarly situated, 

 

 Plaintiff, 

 v. 

 

CDW GOVERNMENT LLC and 

CLEARVIEW AI, INC., 

Defendants. 

)

)

)

)

)

)

)

)

)

)

)

Case No. 20 C 846 

Judge Sharon Johnson Coleman 

DEFENDANTS CLEARVIEW AI, INC., HOAN TON-THAT, AND RICHARD 

SCHWARTZ’S MEMORANDUM IN SUPPORT OF THEIR MOTION TO STAY 

Defendants Clearview AI, Inc. (“Clearview”), Hoan Ton-That, and Richard Schwartz 

(collectively, the “Clearview Defendants”), respectfully request that the Court enter an order 

staying the above-captioned matters, including further briefing on Plaintiff Mutnick’s motion for 

preliminary injunction (Case No. 20-512, ECF Nos. 31-32, 39), pending the Court’s decision on 

the Clearview Defendants’ concurrently-filed motion to dismiss for lack of personal jurisdiction, 

or, in the alternative, to transfer venue to the United States District Court for the Southern District 

of New York. 

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 1 of 8 PageID #:383
2 

INTRODUCTION 

The Clearview Defendants appear to be in the middle of a contest between Chicago and 

New York lawyers angling to be appointed lead plaintiffs’ counsel. Two months after the 

commencement of this litigation, Mutnick moved for a preliminary injunction. That same week, 

a competing team of plaintiffs lawyers in New York filed a motion to be appointed interim lead 

counsel. Mutnick subsequently moved to intervene in the New York proceedings and to have 

those proceedings dismissed or transferred to Illinois, touting his belated preliminary injunction 

motion. Regardless of the motivations behind Mutnick’s belated motion, the Court and the parties 

should not expend their resources on briefing and a potential preliminary injunction hearing before 

the Court decides the threshold issue of whether it has jurisdiction over the defendants.1 A stay of 

this litigation is accordingly appropriate. 

BACKGROUND 

On January 22, 2020, Plaintiff Mutnick filed a putative class action complaint against the 

Clearview Defendants asserting eleven causes of action, including multiple claims for violations 

of the U.S. Constitution and the Illinois Biometric Information Privacy Act (“BIPA”). (Case No. 

20-512, ECF No. 1.) On February 5, 2020, Plaintiff Hall filed a similar complaint, which was later 

consolidated with the Mutnick case. (ECF No. 37.) 

Numerous similar class actions were also filed against the Clearview Defendants, including 

in New York, California, and Virginia.2 By the end of March, it became clear that the Southern 

 

1

 Courts have held that personal jurisdiction should be resolved before a motion for a preliminary 

injunction is decided. See Alpha Tau Omega Fraternity v. Pure Country, Inc., 185 F. Supp. 2d 

951 (S.D. Ind. 2002); see also KFC Corp. v. Texas Petroplex, Inc., No. 3:11-cv-00479, 2012 WL 

4760848 (W.D. Ky. Oct. 5, 2012); Animale Grp., Inc. v. Sunny's Perfume, Inc., No. 507-cv-13, 

2007 WL 760373 (S.D. Tex. Mar. 8, 2007). 

2

Roberson v. Clearview AI, Inc., No. 20-cv-00111-RDA-MSN (E.D. Va. Feb. 3, 2020); Calderon 

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 2 of 8 PageID #:384
3 

District of New York—the only forum that undisputedly has personal jurisdiction over the 

Clearview Defendants—was becoming the center of gravity for disputes related to Clearview’s 

business practices. Specifically, two complaints had been filed there (Calderon and Broccolino), 

and the Clearview Defendants had filed motions to transfer two other cases there (Burke and 

Roberson).3 

Following this flurry of pre-pandemic activity centered around New York, on April 8, 

2020, more than two months after launching this litigation, Mutnick suddenly believed he was 

facing imminent harm and filed a motion for a preliminary injunction against the Clearview 

Defendants. (ECF Nos. 31-32, 39.) The timing of Mutnick’s belated motion suggests it was 

intended not to address any imminent or ongoing harm, but rather to position Plaintiff’s counsel 

for appointment as lead counsel in this litigation. Indeed, that same week, a competing team of 

plaintiffs lawyers in New York moved to be appointed interim lead counsel.4 And less than two 

weeks later, after a third complaint was filed in New York (McPherson), Mutnick filed a motion 

to intervene and to dismiss the cases pending in New York, which now includes a fourth case, 

transferred from California.5 In those filings, one of Mutnick’s primary arguments for dismissal 

 

v. Clearview AI, Inc., No. 1:20-cv-01296-CM (S.D.N.Y. Feb. 13, 2020); Burke v. Clearview AI, 

Inc., No. 1:20-cv-03104-CM (S.D.N.Y. Feb. 27, 2020); Broccolino v. Clearview AI, Inc., No. 1:20-

cv-02222-CM (S.D.N.Y. Mar. 12, 2020); Thornley v. Clearview AI, Inc., No. 2020-CH-03377 

(Cir. Ct. Cook County Mar. 19, 2020); McPherson v. Clearview AI, Inc., No. 1:20-cv-03053-CM 

(S.D.N.Y. Apr. 15, 2020). 

3

See Mot. to Transfer Venue, Burke v. Clearview AI, Inc., No. 3:20-cv-00370-BAS-MSB (S.D. 

Cal. Mar. 31, 2020), ECF No. 4; Mot. to Transfer Venue, Roberson v. Clearview AI, Inc., No. 20-

cv-00111-RDA-MSN (E.D. Va. Mar. 25, 2020), ECF Nos. 12-14. 

4

See Calderon v. Clearview AI, Inc., No. 1:20-cv-01296-CM (S.D.N.Y.), ECF No. 17. 

5

See Calderon v. Clearview AI, Inc., No. 1:20-cv-01296-CM (S.D.N.Y), ECF No. 22; Burke v. 

Clearview, AI, Inc. 1:20-cv-03104, ECF No. 16; Broccolino v. Clearview AI, Inc., No. 1:20-cv02222-CM (S.D.N.Y.), ECF No. 10; McPherson v. Clearview AI, Inc., No. 1:20-cv-03053 

(S.D.N.Y.), ECF No. 12. 

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 3 of 8 PageID #:385
4 

of the New York matters was that he had filed a motion for preliminary injunction in this Court 

and that “substantive action has taken place” in this case.6 

On April 27, 2020, concurrently with this motion to stay, the Clearview Defendants filed a 

motion to dismiss for lack of personal jurisdiction, or, in the alternative, to transfer venue to the 

Southern District of New York. 

ARGUMENT 

“[T]he power to stay proceedings is incidental to the power inherent in every court to 

control the disposition of the causes on its docket with economy of time and effort for itself, for 

counsel, and for litigants.” Tex. Independent Producers & Royalty Owners Ass'n v. EPA, 410 F.3d 

964, 980 (7th Cir. 2004) (quoting Landis v. N. Am. Co.,299 U.S. 248, 254 (1936)). When ruling 

on a stay, courts consider (1) whether judicial economy favors a stay; (2) the potential prejudice 

to the non-moving party; and (3) any hardship or inequity to the moving party if the case is not 

stayed. Paul v. Aviva Life & Annuity Co., No. 09-1038, 2009 WL 2244766, at *1 (N.D. Ill. July 

27, 2009). These factors each weigh in favor of a stay of the above-captioned cases. 

First, a stay would preserve judicial resources. Mutnick’s preliminary injunction motion 

raises complicated substantive issues, and would require the Court to address the merits of 

Mutnick’s eleven causes of action, including numerous claims of constitutional and BIPA 

violations. Before the Court and the parties spend time and resources addressing these merits 

issues, the Court should decide the threshold issue of whether this litigation will even proceed in 

this forum. For all the reasons set forth in the Clearview Defendants’ concurrently filed motion to 

dismiss or transfer, these litigations should proceed in the Southern District of New York, which 

 

6

See Calderon v. Clearview AI, Inc., No. 1:20-cv-01296-CM (S.D.N.Y), ECF No. 22 at 2. 

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 4 of 8 PageID #:386
5 

is the only forum that has personal jurisdiction over all of the Clearview Defendants and where 

four similar putative class actions are pending. 

A stay is warranted in these circumstances. See, e.g., Paul, 2009 WL 2244766, at *1 

(granting stay pending a transfer motion because otherwise “this court would have wasted judicial 

resources by addressing various pre-trial motions that could have been resolved in the transferee 

court”); see also In re Fusion—IO, Inc., 489 F. App’x 465, 466 (Fed. Cir. 2012) (directing the 

district court to stay proceedings pending a decision on a motion to transfer because the transfer 

decision should be made “before proceeding to any motion on the merits of the action”); In re 

Horseshoe Entm’t, 337 F.3d 429, 433 (5th Cir. 2003) (explaining that deciding a timely transfer 

motion should be “top priority”). 

Second, Plaintiffs will not be prejudiced by a stay. As an initial matter, this case is still in 

its infancy. No responsive pleading is on file, the Court has not issued a scheduling order or 

taken material action in the case, and discovery has not commenced. See Kotlyar v. Univ. of 

Chicago Med. Ctr., No. 17 C 4729, 2017 WL 5911287, at *2 (N.D. Ill. Nov. 30, 2017) (stay 

would not prejudice plaintiff because the case was “still in the very preliminary stages”); Paul, 

2009 WL 2244766, at *1 (concluding that stay would not prejudice plaintiffs because discovery 

had not yet begun). Moreover, Mutnick filed his motion for a preliminary injunction more than 

two months after he filed his complaint, demonstrating that he has no urgent desire to obtain the 

requested relief. Instead, as discussed above, Mutnick’s motion is more likely part of an effort to 

position Plaintiff’s counsel for appointment as lead counsel after several other cases were filed in 

or transferred to New York. Mutnick’s own delay in waiting to file a preliminary injunction 

motion confirms that he will not be prejudiced by a stay, and the Court should not credit 

Mutnick’s strategic attempt to manufacture urgency two months after first suing Clearview. 

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 5 of 8 PageID #:387
6 

Third, the Clearview Defendants will be prejudiced if a stay is not granted. Without a stay, 

the Clearview Defendants would be subject to unnecessary briefing (including responding to 

Plaintiff’s preliminary injunction motion and potentially conducting a merits hearing on the 

motion), duplicative proceedings, and the potential for inconsistent rulings. This prejudice to the 

Clearview Defendants outweighs any theoretical prejudice to Plaintiffs from not entering a stay. 

See, e.g., Bd. of Trustees of Teachers' Ret. Sys. of State of Illinois v. Worldcom, Inc., 244 F. Supp. 

2d 900, 906 (N.D. Ill. 2002) (ordering a stay pending transfer decision because “the threat of 

inconsistent rulings outweighs the prejudice to the [non-moving party] from delay”); Azar v. Merck 

& Co., 3:06-cv-0579 AS, 2006 WL 3086943, at *1 (N.D. Ind. Oct. 27, 2006) (“[A]llowing pretrial 

proceedings to continue poses a significant risk of duplicative motions and discovery that could 

result in needless expense and inequity to [defendant].”). 

CONCLUSION 

For the foregoing reasons, the Clearview Defendants respectfully request that the Court 

enter an order staying the above-captioned litigations pending the Court’s decision on the 

Clearview Defendants’ concurrently-filed motion to dismiss for lack of personal jurisdiction, or, 

in the alternative, to transfer venue to the Southern District of New York. 

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 6 of 8 PageID #:388
7 

DATED: April 27, 2020 JENNER & BLOCK LLP

By: /s/ Lee Wolosky 

Lee Wolosky (admitted pro hac vice) 

Andrew J. Lichtman (pro hac vice pending) 

JENNER & BLOCK LLP 

919 Third Avenue 

New York, New York 10022-3908 

Phone: (212) 891-1600 

lwolosky@jenner.com 

alichtman@jenner.com 

Howard S. Suskin 

David P. Saunders 

JENNER & BLOCK LLP 

353 North Clark Street 

Chicago, Illinois 60654 

Phone: (312) 222-9350 

hsuskin@jenner.com 

dsaunders@jenner.com 

 

Attorneys for Defendant Clearview AI, Inc., Hoan 

Ton-That, and Richard Schwartz

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 7 of 8 PageID #:389
8 

CERTIFICATE OF SERVICE 

I certify that on April 27, 2020 I electronically filed the foregoing with the Clerk of Court 

using the CM/ECF system, which will then send a Notice of Electronic Filing to all counsel of 

record. 

By: /s/ Lee Wolosky 

 Lee Wolosky 

Case: 1:20-cv-00512 Document #: 48 Filed: 04/27/20 Page 8 of 8 PageID #:390