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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; 

and RICHARD SCHWARTZ,

Defendants.

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Case No. 1:20-cv-00512

Consolidated Case Nos.:

1:20-cv-00840

1:20-cv-02989

Judge Sharon Johnson Coleman

Magistrate Judge Maria Valdez

PLAINTIFF’S MOTION TO RECONSIDER STAY ORDER

Plaintiff David Mutnick, for himself and others similarly situated, by his counsel, 

respectfully requests that the Court reconsider its August 21, 2020 Order (the “Order”) granting 

Defendants’ motion to stay selective proceedings (Dkt. 99) or, in the alternative, clarify the scope 

of the Order. In support of Plaintiff’s motion, he states as follows:

INTRODUCTION

Plaintiff respectfully requests that the Court reconsider its Order staying this matter as it 

appears the Court may have overlooked the severe prejudice the lengthy stay inflicts on Plaintiff 

and class members, and Defendants’ motion did not make the Court aware of all the relevant facts.

Contrary to Defendants’ contention that any stay may be brief, the stay likely will be in 

effect until at least December 2020 – the time at which it appears the Judicial Panel on Multidistrict 

Litigation (“JPML”) will hear Defendants’ transfer motion. As noted above, the lengthy stay will 

prejudice Plaintiff and class members. This Court previously has acknowledged that prejudice, 

which stems from Plaintiff’s and class members’ need for injunctive relief to stop the ongoing 

irreparable harm caused by Defendants’ unlawful conduct.

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In contrast to that prejudice, Defendants will suffer no hardship in the absence of a stay. 

They cannot credibly claim otherwise given that have not sought a parallel stay of the cases 

pending in the Southern District of New York (the “New York Litigation”), nor have they sought 

to stay Thornley v. Clearview AI, Inc., No. 1:20-cv-03843, pending before this Court. In the New 

York Litigation, Defendants have not formally moved for any stay, and the Court has only

adjourned the date for Defendants to file their answers.

Similarly, Defendants’ claim that judicial economy favors a stay is overblown and, again, 

ignores their inconsistent actions in the New York Litigation. The claim also ignores the pendency 

of a recently-filed related case – Carmean v. Macy’s Retail Holdings, Inc., No. 1:20-cv-04589 

(“Carmean”) (N.D. Ill.) (Aspen, J.) – which Plaintiff cannot relate to, and consolidate with, this 

case if a stay is in place. As a result, a stay actually burdens this District.

Based on the prejudice to Plaintiff and class members and all of the relevant facts, Plaintiff 

respectfully suggests that the Court should not have granted Defendants’ motion. To the extent the 

Court wishes to stay some of the proceedings, Plaintiff respectfully requests that the Court solely 

delay the date on which Defendants have to file an answer – as in the New York Litigation.

PROCEDURAL AND FACTUAL BACKGROUND

Defendants’ Efforts to Delay This Matter

This case arises out of Defendants’ alleged egregious violations of Plaintiff’s and class 

members’ privacy and civil rights through the surreptitious collection, distribution and use of their 

sensitive biometric data. See Dkt. 1, 6. Throughout, Defendants have sought to delay the case’s 

progress. Shortly after Plaintiff moved for a preliminary injunction, Defendants simultaneously 

moved to dismiss/transfer this action and stay the case. See Dkt. 31, 45, 47.

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The Court denied both motions (Dkt. 61, 86), finding that “staying this action while the 

Court determines the jurisdictional and transfer issues will not save judicial resources, especially 

when weighed against plaintiff’s need for injunctive relief and any prejudice resulting from a 

delay.” Dkt. 61 at ECF 3 (emphasis added). More recently, Plaintiff moved to consolidate the 

various related actions pending before the Court. Dkt. 82. In response, Defendants sought a de 

facto stay until the Court ruled on their motion to dismiss. See Dkt. 84 at ECF 2, 5-7.

At issue here is Defendants’ most recent motion for a stay. Defendants filed the motion 

shortly after the Court denied their motion to dismiss/transfer, began moving the case forward and 

requested a proposed order on Plaintiff’s preliminary injunction motion. See Dkt. 86, 87, 90; 

Exhibit 1 (August 14, 2020 Court correspondence).

Facts Not Included in Defendants’ Motion to Stay

The Requested Stay Will Be Lengthy

Defendants’ motion does not include critical facts. For instance, Defendants’ motion to 

stay omits that Defendants’ transfer motion before the JPML is not included on the Panel’s docket 

for its upcoming September 24, 2020 hearing session, which session was set prior to Defendants 

filing with the JPML. See Exhibit 2 (JPML Notice of Hearing Session). This is critical because it 

indicates that the JPML will not address the motion until December 3, 2020 – at the earliest. See 

https://www.jpml.uscourts.gov/hearing-information (JPML hearing schedule) (last accessed on 

Aug. 22, 2020). Given the ongoing irreparable harm Defendants’ conduct is inflicting on Plaintiff 

and class members, this lengthy delay is significant. By the time the JPML considers and rules on

Defendants’ motion, eight or more months will have elapsed since Plaintiff first sought the needed 

injunctive relief. 

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Defendants Have Not Moved to Stay the New York Litigation

Further, Defendants’ motion omits that they have not sought a parallel stay of the New 

York Litigation and that they do not intend to do so. Despite several attempts by Plaintiff’s counsel 

to determine whether Defendants would seek a parallel stay of the New York Litigation, defense 

counsel repeatedly dodged the question. See Exhibit 3 (email chain). Instead of answering the 

inquiry, defense counsel pointed to various motions and orders regarding Defendants’ answer dates

in the New York Litigation. Id.; Exhibit 4 (May 14, 2020 Order); Exhibit 5 (May 26, 2020 Order);

Exhibit 6 (Aug. 4, 2020 Order). When Plaintiff’s counsel asked for clarification, defense counsel 

would only state that they intend to “urge” Judge McMahon to “continue the stay she had 

effectively entered until the decision of the JPML.” Ex. 3.

However, Defendants have never sought, and Judge McMahon has never granted, a stay of 

the New York Litigation in its entirety. See, e.g., Exhibit 7 (Docket - Calderon v. Clearview AI, 

Inc. (“Calderon”), No. 1:20-cv-01296-CM (S.D.N.Y.)). At best, Judge McMahon has “stayed” the 

date for Defendants’ answers. See Exs. 4-6.

Indeed, since Judge McMahon entered the first purported stay order on May 14, 2020, one 

of the plaintiffs has filed an amended complaint and effected service on newly-added defendants. 

See Calderon Dkt. 52-58. Defendants did not object to those actions or otherwise contend that they 

violated a stay order. Rather, on July 27, 2020, Defendants wrote to the Court requesting 

clarification as to when their answer to the amended complaint was due or if the answer was 

adjourned sine die. Calderon Dkt. 62. In the letter, Defendants stated that the request “does not 

affect any other scheduled dates” and made no mention of an overall stay of the litigation. Id. 

In an effort to narrow the issues raised in this motion, Plaintiff’s counsel advised defense 

counsel of the above-described facts and asked defense counsel if they would be willing to discuss 

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withdrawal or modification of their requested stay. Ex. 3. In a telephone call, defense counsel

maintained their above-stated position. Id.

The Court’s Order

Defendants filed their motion to stay at approximately 8:11 p.m. on August 20, 2020. 

Exhibit 8 (Notice of Electronic Filing). On August 21, 2020, without hearing from Plaintiff or 

setting a briefing schedule, the Court granted the motion via a docket entry and struck the briefing 

schedules for the Defendants’ transfer motion1 and the preliminary injunction motion. Dkt. 99.

ARGUMENT

I. Legal Standards.

A motion to reconsider “is a request that the [Court] reexamine its decision in light of 

additional legal arguments, a change of law, or perhaps an argument or aspect of the case that was 

overlooked.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (internal quotation omitted). 

Reconsideration is particularly appropriate when a court “has made an error not of reasoning but 

of apprehension.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th 

Cir. 1990) (citation omitted). 

A district court has the “inherent discretionary power to control the disposition of cases on 

its docket . . . .” Terkel v. AT&T Inc., No. 06 C 2837, 2006 WL 1663456, at *1 (N.D. Ill. June 9, 

2006) (Kennelly, J.). In deciding whether to stay an action based on the pendency of a transfer 

motion before the JPML, “courts consider whether judicial economy favors a stay; the potential 

prejudice to the non-moving party if the case is stayed; and any hardship or inequity to the moving 

party if the case is not stayed.” Id.

1 Defendants filed a courtesy copy of the JPML transfer motion in this Court (Dkt. 92). While this Court 

set a briefing schedule for that motion (Dkt. 93), the motion will be briefed before the JPML and will not 

require any of this Court’s resources. 

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The “pendency before the JPML of a motion to transfer under 28 U.S.C. § 1407 does not 

. . . automatically entitle a party to a stay of a case as to which transfer is sought.” Id. The JPML 

Rules of Procedure make clear that the “pendency of a motion . . . before the Panel pursuant to 28 

U.S.C. § 1407 does not affect or suspend orders and pretrial proceedings in any pending federal 

district court action and does not limit the pretrial jurisdiction of that court.” J.P.M.L. Rule 2.1(d). 

“In other words, a district judge should not automatically stay discovery, postpone rulings on 

pending motions, or generally suspend further rulings upon a party’s motion to the Judicial Panel 

for transfer and consolidation.” In re Pradaxa Prod. Liability Actions, No. 3:12-cv-00610-DRHSCW, 2012 WL 2357425, at *2 (S.D. Ill. June 20, 2012) (citing Manual for Complex Litigation 

(Fourth) § 20.131 (2004)). 

II. The Actual Facts Weigh Against Staying This Litigation.

As this Court found when it denied Defendants’ first motion to stay, “plaintiff’s need for 

injunctive relief and any prejudice resulting from a delay” outweighs the other stay factors. See 

Dkt. 61 at ECF 3. Nothing has changed that would alter the Court’s analysis.

Judge Kennelly’s opinion in Terkel is instructive. There, like here, the defendants sought 

to stay a case pending a ruling by the JPML. Terkel, 2006 WL 1663456, at *1. Further, as here, at 

the time of the defendants’ motion, the plaintiffs had a preliminary injunction motion pending, and 

the defendants had not sought a stay of the litigation in the other forum where related cases were 

pending. Id. at *2-3. Finally, as here, the various cases overlapped but were not identical. Id. at *2.

Based on those facts, as described in more detail below, the court refused to stay the case, 

concluding that “the potential prejudice to the plaintiffs that would result from a stay outweighs 

the interests of judicial economy and the potential for hardship to the defendants . . . that would 

accompany denial of a stay.” Id. at *3. 

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In reaching its decision, the court emphasized that the plaintiffs contended that the ongoing 

harm they would suffer from the defendants’ conduct would be irreparable, thereby necessitating 

preliminary injunctive relief. Id. Without addressing the merits of the plaintiffs’ preliminary

injunction motion, the court held that “the claim of ongoing irreparable harm, if the . . . plaintiffs’ 

allegations are shown to be true, is a serious one.” Id. The court further found that the fact that the 

JPML would not consider the transfer motion for at least a month would result in the plaintiffs’ 

claimed harm continuing in the interim. Id.

The court also determined that the prejudice to the plaintiffs outweighed the other stay 

factors. Id. at *3. While the court did not wholly discount the defendants’ contention of hardship 

in the absence of a stay, it found that their failure to seek a stay in the other forum made it “difficult 

to accept at face value their contention that this is a compelling reason for a stay.” Id. Moreover, 

the court noted that an injunction motion was only pending in the case before the court, alleviating 

any concern that the defendants would have to litigate that issue in a multiple of forums. Id. 

Further, the court highlighted the fact that the defendants had obtained extensions of time to 

respond to the complaints “in many, and perhaps most, of the other cases.” Id.

With respect to judicial economy, the court again pointed to the defendants’ strategy of 

only seeking a stay in one of the forums. Id. at *2. According to the court, the defendants’ strategy 

“strongly suggests that the goal of economy does not favor transfer to the extent argued by the 

defendants . . . .” Id. In that case, the defendants did not seek a stay of litigation where they had 

pending motions. Id.

As in Terkel, “the potential prejudice to the plaintiffs that would result from a stay 

outweighs the interests of judicial economy and the potential for hardship to the defendants . . . 

that would accompany denial of a stay.” See id. at *3. Plaintiff has sought preliminary injunctive 

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relief to halt Defendants’ ongoing egregious violations of his and class members’ privacy rights

that continue to cause irreparable harm. Dkt. 31. The problem of the ongoing harm is particularly 

acute, here, because the JPML is not likely to address Defendants’ motion until December 2020 –

making the stay quite lengthy. See Terkel, 2006 WL 1663456, at *3.

Any claim by Defendants that their purported actions in response to the preliminary 

injunction motion (see Dkt. 56 at ECF 4-5) have somehow alleviated the ongoing irreparable harm 

to Plaintiff and class members would lack merit. As set forth in Plaintiff’s reply in support of his 

preliminary injunction motion, Defendants’ purported actions do not rectify or halt that harm. See 

Dkt. 63 at ECF 13-15. Moreover, merely because Defendants contend they have taken certain 

actions does not make it so. No independent third party has verified the purported actions, and the 

record is clear that Defendants and their representatives cannot be taken at their word. See Dkt. 64, 

66 (highlighting misrepresentations made by Clearview’s General Counsel to Illinois Secretary of 

State and his lack of candor with the Court); see also Dkt. 86 at ECF 4-5 (Court finding factual 

conflict between Defendants’ affidavits and record evidence). Even if Defendants actually took 

any of the purported actions, they presently are free to resume their injurious conduct at any time.

See ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 724 F.3d 854, 864 (7th Cir. 2013).

Unable to address the actual prejudice resulting from a stay, Defendants ignore it and 

inaccurately claim that any stay will likely be brief. See Dkt. 98 at ECF 6-7. As discussed above, 

the stay will be lengthy and inflict severe harm on Plaintiff and class members.

Defendants also make the incredible argument that a stay benefits Plaintiff because he will 

not have to file a consolidated complaint. Dkt. 98 at ECF 6. Defendants know that Plaintiff wishes 

to advance this case, and their claim to the contrary is incredible.

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In contrast to the above-described prejudice, Defendants will not suffer any hardship if the 

stay is denied. As in Terkel, Defendants’ failure to seek a stay of the related litigation makes it 

“difficult to accept at face value their contention that [hardship in the absence of a stay] is a 

compelling reason for a stay.” See Terkel, 2006 WL 1663456, at *3.

Further, Defendants’ seeming desire to avoid a ruling on the preliminary injunction motion 

is not a hardship. Indeed, as the court found in Terkel, the fact that an injunction motion has only 

been brought in a single forum negates any concern about a ruling causing hardship. See id. To the 

extent Defendants are concerned about having to file an answer in this case on September 14, 

2020, the Court can easily address that concern by extending the answer date to September 30, 

2020, as Defendants request in their motion, or staying the answer date as was done in the New 

York Litigation. Dkt. 98 at ECF 7.

Finally, as in Terkel, Defendants’ contention that judicial economy favors a stay (id. at 

ECF 4) is overblown. By not moving to stay the New York Litigation or Thornley,

2 both this Court 

and the Southern District of New York may continue to work on this litigation. Moreover, the 

entry of a stay precludes Plaintiff from relating and consolidating Carmean, pending before Judge 

Aspen. Thus, as a result of Defendants’ strategy, three judges may continue working on Clearviewrelated litigation. The strategy “strongly suggests that the goal of economy does not favor transfer 

to the extent argued by the defendants,” if at all. See Terkel, 2006 WL 1663456, at *3.

Defendants’ contention that the pending preliminary injunction motion creates a burden 

because it raises complicated issues (Dkt. 98 at ECF 5) ignores that the motion has been fully 

briefed since May 2020. See Dkt. 63. While Defendants’ recently and improperly attempted to 

2 The Court may stay proceedings pending a transfer decision by the JPML, even if a remand motion is 

pending. Bd. of Trustees of the Teachers’ Retirement Sys. of the State of Ill. v. Worldcom, Inc., 244 

F.Supp.2d, 900, 905 (N.D. Ill. 2002).

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inject a new First Amendment argument into the mix (Dkt. 91 at ECF 3-4), the newfound argument 

is waived.3 See United States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007) (“Because the argument 

was not raised or developed in the opening brief, it is waived.”); see also Lores v. SailPoint Techs., 

Inc., No. 18-CV-3910, 2019 WL 1382080, at *1 (N.D. Ill. Mar. 27, 2019). 

As for the argument itself, Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) – on which 

Defendants primarily rely (Dkt. 91 at ECF 3-4) – makes clear that the Illinois Biometric 

Information Privacy Act (“BIPA”) does not violate the First Amendment because it regulates 

conduct, not content. Unlike the statute at issue in Sorrell, BIPA on its face does not burden 

disfavored speech by disfavored speakers. See 564 U.S. at 563-64. Rather, it broadly regulates the 

collection, disclosure and use of biometric data by private entities with only a few narrow and 

well-justified exceptions. See 740 ILCS 14/1, et seq. BIPA is on all fours with the Health Insurance 

Portability and Accountability Act of 1996 (“HIPPA”), 42 U.S.C. § 1320d-2. See Sorrell, 564 U.S. 

at 573. In Sorrell, the Court found that a “statute [like HIPPA] would present quite a different case 

from the one presented here” – i.e., the statute would not violate the First Amendment. See id.

Even if BIPA regulated speech, the speech at issue would be commercial in nature. Because 

BIPA “directly advances a substantial government interest” – namely, the protection of 

individuals’ sensitive biometric data – and “the measure is drawn to achieve that interest” through 

a “coherent policy,” it does not run afoul of the First Amendment. See id. at 571-72. As discussed 

above, in this way, BIPA is akin to HIPPA. Id. at 573.

3 Plaintiff has not yet had the opportunity to respond to Defendants’ improper “objections” to the proposed

order Plaintiff submitted regarding his preliminary injunction motion. Dkt. 91. The discussion here is 

intended to summarily show that Defendants’ primary objection lacks merit. Defendants’ other objections 

regurgitate substantive issues already briefed by the parties and ignore the plain language of the proposed 

order. If necessary, once the stay is lifted, Plaintiff will more fully address the objections. 

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Finally, while Defendants would like to believe that it is a foregone conclusion that the 

JPML will transfer this case to the Southern District of New York, that is not accurate. Both this 

Court and the Southern District of New York have found that differences between the cases in the 

two forums did not justify transfer. Dkt. 86 at ECF 8; Calderon v. Clearview AI, Inc., 2020 WL 

2792979, at *6 (S.D.N.Y. May 29, 2020). Moreover, given that there are only two districts 

involved and various ways for the cases to be informally coordinated, these matters do not seem 

ripe for JPML consolidation. Thus, the JPML may not transfer this case. If the JPML does 

consolidate the cases, it is equally, if not more likely, to transfer the New York Litigation to this 

this District, given that the common threads running through almost all of the cases are Illinois

plaintiffs who assert claims under an Illinois statute for harm suffered in Illinois.

The potential prejudice to Plaintiff and class members that would result from a stay 

outweighs the interests of judicial economy and the potential for hardship to Defendants that would 

accompany denial of a stay. Accordingly, the Court should reconsider its previous Order and: (a)

deny Defendants’ motion; or (b) modify the Order to solely delay Defendants’ answer date.

III. Alternatively, Plaintiff Respectfully Requests Clarification of the Court’s Order.

To the extent the Court keeps the stay in place, Plaintiff respectfully requests that the Court 

clarify its scope. The Order states that Defendants’ motion to stay is granted and strikes the briefing 

schedules for the motion to transfer and preliminary injunction. Dkt. 99. The Court did not strike 

the date for Plaintiff to file a consolidated complaint or for Defendants to answer. To ensure that 

Plaintiff complies with the Order, he seeks clarification as to whether the case is stayed in whole 

or in part.

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CONCLUSION

WHEREFORE, Plaintiff David Mutnick respectfully requests that the Court reconsider its 

stay Order and: (a) deny Defendants’ motion to stay; or (b) modify the Order to solely delay the 

date on which Defendants’ answer is due. Should the Court keep the stay in place, Plaintiff 

respectfully requests clarification as to whether the Order stays the proceeding in its entirety or 

only as to the preliminary injunction and transfer motions.

Dated: August 25, 2020

Respectfully submitted,

/s/ Scott R. Drury

SCOTT R. DRURY

Mike Kanovitz

Scott R. Drury

LOEVY & LOEVY

311 N. Aberdeen, 3rd Floor

Chicago, Illinois 60607

312.243.5900

mike@loevy.com

drury@loevy.com

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CERTIFICATE OF SERVICE

I, Scott R. Drury, an attorney, hereby certify that, on August 25, 2020, I filed the foregoing 

document using the Court’s CM/ECF system, which effected service on all counsel of record.

/s/ Scott R. Drury

One of David Mutnick’s Attorneys

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