Burke et al v. Clearview AI, Inc. et al

Filing 50

MEMORANDUM DECISION AND ORDER DENYING THE MOTION TO INTERVENE AND TO DISMISS OR, ALTERNATIVELY, TO STAY CASES OR TRANSFER VENUE denying #16 Motion to Intervene. Mutnick's motion for leave to intervene permissively is, therefore, DENIED. This constitutes the decision and order of the Court. It is a written opinion. The Clerk of the Court is directed to remove the motion at Dkt. No. 22 from the Court's list of pending motions. (Signed by Judge Colleen McMahon on 5/29/2020) (mml)

Case 1:20-cv-03104-CM Document 50 Filed 05/29/20 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_________________________________________x
MARIO CALDERON, et al.,
Plaintiffs,
-against-

20 civ. 1296 (CM)

CLEARVIEW AI, INC., et al.,
Defendants.
_________________________________________x
MARIA BROCCOLINO,
Plaintiff,
-against-

20 civ. 2222 (CM)

CLEARVIEW AI, INC.,
Defendant.
_________________________________________x
JOHN MCPHERSON,
Plaintiff,
-against-

20 civ. 3053 (CM)

CLEARVIEW AI, INC., et al.
Defendants.
_________________________________________x
SEAN BURKE, et al.,
Plaintiffs,
-against-

20 Civ. 3104 (CM)

CLEARVIEW AI, INC. et al.,
Defendants.

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_________________________________________x
DEAN JOHN, et al.,
Plaintiffs,
-against-

20 Civ. 3481 (CM)

CLEARVIEW AI, INC.,
Defendant.
_________________________________________x
SHELBY ZELONIS ROBERSON,
Plaintiff,
-against-

20 Civ. 3705 (CM)

CLEARVIEW AI, INC.,
Defendant.
_________________________________________x
MEMORANDUM DECISION AND ORDER DENYING THE MOTION TO
INTERVENE AND TO DISMISS OR, ALTERNATIVELY, TO STAY CASES OR
TRANSFER VENUE
McMahon, CJ:
On January 18, 2020, the New York Times published an exposé on the company
Clearview AI, Inc. (“Clearview”), entitled “The Secretive Company That Might End Privacy as
We Know It.” The article described Clearview’s creation of a facial recognition app “that could
end your ability to walk down the street anonymously.” 1
Since that exposé, eight federal class action lawsuits have been filed against Clearview
and its two principals, Hoan Ton-That (“Ton-That”) and Richard Schwartz (“Schwartz”)
(collectively with Clearview, the “Clearview Defendants”). All eight cases were filed within

1

Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan. 18, 2020; updated
Feb. 10, 2020), https://www.nyties.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

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weeks of each other. Two cases were filed in Chicago, Illinois; one in Alexandria, Virginia; one
in San Diego, California; and the rest in this court.
Each case arises out of Defendant Clearview’s conduct in: (a) allegedly scraping billions
of facial images from the Internet; (b) performing facial scans of those images; and (c) creating a
biometric database that allows users of the database to immediately identify a member of the
public merely by uploading a person’s image to the database.
The Virginia and San Diego cases have already been transferred to this court, so there are
now six actions pending in this district. There is a motion to transfer the Chicago cases to this
court pending in the Northern District of Illinois. Defendants have not filed an answer in any
case and no formal discovery has taken place.
Pursuant to Federal Rule of Civil Procedure 24, David Mutnick – who filed the first
federal class action against Clearview, in the Northern District of Illinois – moves to: (a)
intervene in the six class action lawsuits that are presently pending before this Court; and (b) to
dismiss those cases pursuant to the first-filed rule or, alternatively, stay the cases or have them all
transferred to the Northern District of Illinois where Mutnick first filed his case, Mutnick v.
Clearview AI, Inc., 1:20-cv-512-SC (N.D. Ill.) (“Mutnick”). The cases at issue are: (1) Calderon
v. Clearview AI, Inc., 1:20-cv-1296-CM (“Calderon”); (2) Broccolino v. Clearview AI, Inc.,
1:20-cv-2222-CM (“Broccolino”); (3) McPherson v. Clearview AI, Inc., 1:20-cv-3053-CM
(“McPherson”); (4) Burke v. Clearview AI, Inc., 1:20-cv-3104-CM (“Burke”); (5) John v.
Clearview AI, Inc., 1:20-cv-3481-CM (“John”); and (6) Roberson v. Clearview AI, Inc., 1:20-cv3705-CM (“Roberson”).
For the foregoing reasons, Mutnick’s Motion to Intervene, whether pursuant to FRCP
24(a) or 24(b), is DENIED. Moreover, had the motion been granted, this Court would have

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declined to stay or transfer the six Clearview actions pending here. I intend to consolidate the
cases and proceed with case management.
FACTUAL BACKGROUND
I.

The Clearview Defendants
Clearview is a Delaware corporation with its headquarters and principal place of business

in New York. Clearview collects images on the internet and organizes them into a searchable
database, which can then be searched on an online app by its licensed users. (Dkt. No. 34, at 4)
Clearview hosts its data on servers located in New York and New Jersey. (Id.)
Defendants Ton-That and Schwartz are principles of Defendant Clearview and manage
technology and sales for the company. Ton-That serves as the company’s chief executive officer.
Ton-That and Schwartz are both residents of New York. (Id. at 5)
II.

Procedural Background
Mutnick filed his lawsuit on January 22, 2020, alleging violations of the Illinois

Biometric Information Privacy Act (“BIPA”), as well as federal constitutional claims under 42
U.S.C. § 1983 (on the theory that Clearview AI qualifies as a state actor). He also asserted a
claim for unjust enrichment. The claims are asserted on behalf of a nationwide class and an
Illinois subclass. (Mutnick v. Clearview AI, Inc., 1:20-cv-512-SC (N.D. Ill.), Dkt. No. 1.)
Thereafter, several other plaintiffs filed similar, but not identical, putative class actions
against the Clearview Defendants.
On February 3, 2020, Plaintiff Roberson filed a complaint in the Eastern District of
Virginia, alleging violations of Virginia Code § 8.01-40 and for violations of the Virginia
Computer Crimes Act. No federal claims were alleged. The Clearview Defendants filed a motion

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to transfer to New York, arguing that the Clearview Defendants were not subject to personal
jurisdiction in Virginia and that New York was the proper venue for the lawsuit. (See Roberson
v. Clearview AI, Inc., No. 20-cv-111-RDA-MSN (ED. Va.), Dkt. Nos. 12-14.) Notwithstanding
the fact that the Virginia Action raised only issues of Virginia law, it was transferred to this
Court on May 12, 2020.
On February 5, 2020, Plaintiff Hall filed a second complaint against the Clearview
Defendants in the Northern District of Illinois. The complaint alleges violations of BIPA, the
Illinois Consumer Fraud and Deceptive Business Practices Act, as well as common law
conversion. No federal claims were alleged. (See Hall v. Clearview AI, Inc., No. 20-846 (N.D.
Ill.), Dkt. No. 1.)
On February 13, 2020, Plaintiff Calderon filed a complaint in the Southern District of New
York alleging violations of BIPA on behalf of a putative Illinois class. No federal claims were
alleged. (See Calderon v. Clearview AI, Inc., 1:20-cv-1296-CM.)
On February 27, 2020, Plaintiff Burke filed a complaint in the Southern District of
California alleging violations of California’s Unfair Competition Law § 17200, violation of
California Civil Code § 3344(a), unjust enrichment, and a violation of BIPA on behalf of putative
Illinois and California sub-classes. (See Burke v. Clearview AI, Inc., 1:20-cv-3104-CM.) No
federal claims were alleged. On April 15, 2020, the case was transferred to this district on consent
of the parties.
On March 12, 2020, Plaintiff Broccolino filed a complaint in the Southern District of New
York alleging violations of BIPA and claims for unjust enrichment, again on behalf of a putative
Illinois class. (See Broccolino v. Clearview AI, Inc., 1:20-cv-2222-CM.) No federal claims were
alleged.

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On April 15, 2020, Plaintiff McPherson filed a complaint in the Southern District of New
York alleging violations of BIPA and claims for unjust enrichment on behalf of a putative
nationwide class. (See McPherson v. Clearview AI, Inc., 1:20-cv-3053-CM.)
On May 4, 2020, Plaintiff John filed a complaint in the Southern District of New York
asserting claims under multiple states’ laws, including the Illinois Biometric Privacy Act,
California Business and Professional Code § 17200, the California Common Law Right of Privacy,
and the California Constitutional Right to Privacy, as well as common law claims for intentional
interference with contractual relations, and unjust enrichment. These claims were asserted on
behalf of a putative nationwide class and three state sub-classes – Illinois, California and New
York. (See John v. Clearview AI, Inc., No. 1:20-cv-3481-CM.)
All these actions are brought against New York-based defendants. None other than
Mutnick’s alleges any violation of federal law.
No party (including Mutnick) has applied to the Judicial Panel on Multi-District Litigation
for an order of consolidation and transfer to a single district for pre-trial purposes. It has been left
to the judges involved – which, at the moment, are Judge Coleman of Illinois Northern and me –
to figure out where these overlapping lawsuits should be litigated.
III.

Mutnick’s Motion for Preliminary Injunction
On April 8, 2020 – three months after filing his lawsuit, and well after other actions had

been filed in other districts – Mutnick filed a motion for a preliminary injunction against the
Clearview Defendants in the Northern District of Illinois. (Mutnick, Dkt. Nos. 31-32, 39.) The
motion seeks to preliminarily enjoin the Clearview Defendants from: (1) violating Illinois’s
BIPA; and (2) possessing the biometric identifiers and information of Illinois residents without
taking measures to ensure the security of that information. (Dkt. No. 23, Ex. 1, Preliminary

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Injunction Memorandum of Law.) At the time of this writing, the motion has been fully briefed
but remains unresolved.
IV.

Mutnick’s Motion to Intervene
On April 21, 2020, Mutnick filed the instant motion to intervene so that he could file a

motion to (a) dismiss the various New York Actions without prejudice; or (b) stay them until the
Illinois Action is resolved; or (c) transfer them to the Northern District of Illinois, arguing that
his first-filed case supports dismissal of the New York Actions. (Dkt. No. 22.) He asserts he may
intervene either as a matter of right under Rule 24(a)(2), or with the court’s permission under
Rule 24(b).
DISCUSSION
I.

Standard of Review
Before he can seek the dismissal, transfer, or stay of the New York Cases, Mutnick must

prevail on his motion to intervene. See U.S. ex. rel. Eisenstein v. City of N.Y., 556 U.S. 928, 933
(2009) (“intervention is the requisite method for a nonparty to become a party to a lawsuit.”).
A party may intervene as of right under Federal Rule of Civil Procedure Rule 24(a)(2) if
it: “(1) files a timely motion; (2) asserts an interest relating to the property or transaction that is
the subject of the action; (3) is so situated that without intervention the disposition of the action
may, as a practical matter, impair or impede its ability to protect its interests; and (4) has an
interest not adequately represented by the other parties.” United States v. Pitney Bowes, Inc., 25
F.3d 66, 70 (2d Cir. 1994).

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“Failure to meet any one of these four requirements is grounds for denial.” Freydl v.
Meringolo, No. 09 Civ. 7196, 2012 WL 1883349, at *1 (S.D.N.Y. May 22, 2012)
(citing MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, 471 F.3d 377, 389 (2d Cir. 2006)).
Alternatively, Federal Rule of Civil Procedure 24(b) grants a court discretion to, “On
timely motion,” “permit anyone to intervene who ... has a claim or defense that shares with the
main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). In deciding whether
to permit intervention under Rule 24(b), courts generally consider the same factors that are
relevant as of right under Rule 24(a)(2). Peterson v. Islamic Republic of Iran, 290 F.R.D. 54, 57
(S.D.N.Y. 2013) (citing R Best Produce, Inc. v. Shulman–Rabin Marketing Corp., 467 F.3d 238,
240 (2d Cir. 2006)). However, “The principal guide in deciding whether to grant permissive
intervention is ‘whether the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.’” Pitney Bowes, 25 F.3d at 73 (quoting Fed. R. Civ. P. 24(b)(3)).
Olin Corp. v. Lamorak Ins. Co., 325 F.R.D. 85, 87 (S.D.N.Y. 2018).
II.

Intervenor’s Motion to Intervene Pursuant to Rule 24(a) is DENIED.
Mutnick seeks to intervene in the New York Cases under Fed. R. Civ. P. 24(a)(2), as of

right, and under Rule 24(b), under the permissive joinder standards, in order to either dismiss,
stay, or transfer the New York Cases to the Northern District of Illinois.
Here, intervention is not justified on either mandatory or permissive grounds. First,
Mutnick has not demonstrated that he has a sufficiently direct interest in the filed actions to
justify intervention. Second, Mutnick has not demonstrated that his hypothetical interest in the
actions would be impaired in the absence of intervention. Finally, Mutnick has not shown that
his personal interest in his claims (as opposed to his and his lawyer’s interest in controlling the

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litigation against Clearview) would not be adequately represented by Plaintiffs in the other
actions.
A. Mutnick articulates no legally cognizable interest justifying intervention.
In order to intervene, a movant must have an interest that is “direct, substantial, and
legally protectable.” See Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir.
2010) (quoting Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d
Cir. 1990))). “An interest that is remote from the subject matter of the proceeding, or that is
contingent upon the occurrence of a sequence of events before it becomes colorable, will not
satisfy the rule.” Travis v. Navient Corp., 284 F. Supp. 3d 335, 342 (E.D.N.Y. 2018).
Mutnick summarily claims that he “satisfies this requirement” because his case and the
Southern District cases “are competing class actions, with overlapping classes, claims, parties
and legal and factual issues” and that “the Northern District of Illinois will be called upon to
decide identical legal issues.” (David Mutnick’s Memorandum of Law in Support of Motion to
Intervene and to Dismiss or, Alternatively, to Stay Cases or Transfer Venue (“Mem”) Dkt. No.
23, at 11.) To Mutnick, this is sufficient to assert intervention as of right because he “has an
interest in the proper application of BIPA and in protecting the class from procedural infighting
that adversely impacts Class Members’ substantive rights.” (David Mutnick Reply Memorandum
(“Reply Mem.”) Dkt. No. 41, at 2.)
The “property or transaction” that is the “subject of” these various lawsuits is a violation
of one of several state laws protecting biometric information. Mutnick has no cognizable interest
in any other person’s claims under BIPA, or under any other state’s biometric protection law.
The only such claim in which Mutnick has any interest is his own personal claim, which arises
under the law of the state of Illinois. He has not the slightest interest in the claims that other

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plaintiffs in this Court – namely, the plaintiffs in the Burke, Roberson and John lawsuits – are
asserting under the laws of Virginia and California; indeed, he arguably lacks standing to pursue
those claims. And at this moment, he has no interest in the claim of any other Illinois plaintiff,
either.
The interest that Mutnick is really seeking to protect is an interest in controlling the fate
of, and the fees to be earned in, several class actions that would, were they all in the same court,
be consolidated and proceed under the leadership of one class representative’s lawyer (I am
under no illusion that these cases are anything other than attorney-driven class actions). He is
using intervention as a vehicle to fight for control of what he anticipates will be a hotly contested
lawsuit that will test the limits of a new and untried body of law – and assuming all of these
cases end up in a single district (they may or may not), his lawyer is fighting for the right to be
lead counsel.
But at the moment, no class has been certified anywhere, so Mutnick has no right to
control the litigation and disposition of any claim other than his own. Prior to the certification of
a class and the appointment of class counsel, Mutnick’s (and his lawyer’s) interest in being in
control of the Clearview AI lawsuits is too attenuated to justify intervention as of right.
Travis v. Navient Corp., 284 F. Supp. 3d 335 (E.D.N.Y. 2018) is instructive. In Travis,
the proposed intervenors moved to intervene to dismiss, stay, or transfer a putative class action
alleging “the same factual allegations,” with the “same Delaware and New York state law
claims,” against the same defendants. Travis, 284 F. Supp. 3d at 341-42. The court nonetheless
found that the intervenors’ interests were “too speculative to warrant intervention” because “no
class has been certified in the instant action.” Id. at 343; see also Rudolph v. Hudsons Bay Co.,
No. 18-cv-8472, 2019 WL 1416986, at *3-4 (S.D.N.Y. Mar. 29, 2019) (denying intervention to

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stay or transfer a pending action because no class had been certified and noting that intervenors
could opt out of any settlement); Mejia v. Time Warner Cable Inc., No. 15-CV-6445, 2017 WL
3278926, at *18 (S.D.N.Y. Aug. 1, 2017) (“Here, intervention is not justified on either
mandatory or permissive grounds. At this early stage of litigation, prior to the certification of a
class, any interest the [proposed intervenors] claim is too remote to justify intervention.”).
Accordingly, any interest Mutnick might have in protecting “his” putative class is too
speculative to warrant intervention as of right. Travis, 284 F. Supp. 3d at 342-43; Mejia, 2017
WL 3278926, at *18 (finding proposed intervenors’ interest “too remote to justify intervention”
prior to class certification); Townes v. Trans Union, LLC, No. 04–1488, 2007 WL 2457484, at *2
(D. Del. Aug. 30, 2007) (“the Court finds the interest asserted by the [intervenors] to be
speculative at this juncture” because “A class has not been certified.”); Glover v. Ferrero USA,
Inc., No. 11–1086, 2011 WL 5007805, at *3 (D.N.J. Oct. 20, 2011) (“Proposed Intervenors’
purported interests are too speculative, i.e., their interests cannot be impaired by this litigation
because a class has not yet been certified in the California action, thus, Proposed Intervenors are
merely seeking to intervene for the purpose of preventing any potential adverse rulings which
may occur and may bind a class of consumers which Proposed Intervenors may or may not
represent.”). Unless and until (1) a class is certified; (2) Mutnick is found to be an appropriate
class representative, and (3) his counsel are deemed appropriate class counsel, the only legally
cognizable interest he has is in his own claim. That claim is not pending in the Southern District
of New York (all the actions that are here, like Mutnick’s in Illinois, being merely putative class
actions, not certified class actions), he has no right to intervene in any of the actions pending
here – even if all the actions in this district were identical to his.
But they are not.

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Mutnick’s motion hinges on his contention that the classes are overlapping and that these
cases are competing class actions. (Mem. at 11.) However, while Mutnick’s action overlaps to
some extent with the New York Actions, it is not identical to them.
Mutnick asserts Illinois state-law claims on behalf of an Illinois class only. To that extent,
his suit is substantially similar to Broccolino. However, Mutnick does not assert claims under
any state’s law other than Illinois. The Burke, Roberson and John cases assert claims under the
laws of other states, notably California and Virginia.
Furthermore, Mutnick alone asserts federal constitutional claims in his complaint. He
alleges that Clearview is a state actor (by virtue of the sale of its database to various state
agencies and police departments) and that its actions violate his and his Illinois and nationwide
class’ rights under 42 U.S.C. § 1983 and the First, Fourth, and Fourteenth Amendments, as well
as the Contract Clause of the U.S. Constitution. (See Dkt. No. 24, Drury Decl. ¶ 5 (stating that
Mutnick intends to call witnesses from the Chicago Police Department and the Illinois Secretary
of State’s Office to testify regarding their use of Clearview’s database).) Putting aside the
precarity of Mutnick’s premise as a matter of law – a proposition that will no doubt be tested on
a motion to dismiss – no such claim is asserted in any of the New York cases. So there is no
danger of inconsistent rulings on Mutnick’s federal claims – assuming he eventually gets to
pursue the federal claim on the merits.
In sum, the six New York cases and Mutnick’s case, while all premised on the same
underlying facts, raise different legal issues, have partially non-overlapping class definitions, and
may require different discovery. All this undercuts Mutnick’s claimed interest in seeing that they
are all resolved in the same manner. See In re Time Warner Cable, Inc., Tel. Consumer Prot. Act
(TCPA) Litig., 2016 WL 5846036, at *1 (J.P.M.L. Oct 3, 2016).

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B. Mutnick’s alleged interest would not be impaired of impeded without intervention.
Even if Mutnick’s concern about “the proper application of BIPA and in protecting the
class from procedural infighting that adversely impacts Class Members’ substantive rights” gave
rise to some legally protectable interest, Mutnick has not explained how that interest would be
impaired or impeded without intervention – a necessary showing under Rule 24(a).
The mere fact that this Court and the Northern District of Illinois would be confronted
with identical issues of Illinois law does not impair or impede Mutnick’s rights. Identical issues
of law arise in pending cases all the time. Sometimes they give rise to conflicting interpretations
of law (indeed, conflicting interpretations of law among Circuit courts is how most cases get to
the Supreme Court). And all litigants have an interest in the proper application of the law to their
claims. Mutnick does not have any interest in having the judge of his choice decide those issues
of law he raises, and he has not suggested that this Court is not up to the task of getting the law
right.
Travis rejected the argument that “the risk of conflicting rulings at this stage in the
litigation — prior to class certification — is []sufficient to merit intervention under Rule 24(a).”
Id. at 344. As Travis explained, “if the Court were to certify a class in this action that includes
proposed intervenors and their putative class, their rights would be deemed protected, and not
impaired,” whereas, “if the Court were to decline to certify a class in this action, proposed
intervenors’ rights would not be impaired because … they would still be able to litigate their
claims in the [proposed intervenors’] action.” Id. at 344-345.
Mutnick is and always will be the master of the one thing in which he inarguably has a
legal interest at this moment: his own claim. If a class of which he would otherwise be a member
should be certified in an action not controlled by him, he is perfectly free to opt out and pursue

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his claim on his own in the court of his choice. Therefore, intervention is not needed for him to
protect his interest in the “property or transaction that is the subject matter of” his own lawsuit –
which is his personal claims under BIPA and Section 1983, not being lead class plaintiff.
C. Mutnick has not demonstrated that his interests would not be adequately represented.
Finally, to intervene as of right under Rule 24(a), the proposed intervenor must show that
his interests are not being adequately protected in the lawsuits in which he seeks to intervene.
Mutnick asserts that there is an identity of interests among the parties to all these
lawsuits. If so, then there exists a presumption that his interest will be adequately represented in
the New York Actions. (Mem. at 12-13; see also Travis, 284 F. Supp. 3d at 346.), The question,
then, is whether Mutnick has overcome that presumption. The answer is no.
In lieu of “a hard-and-fast rule of what form of showing must be made to rebut a
presumption of adequate representation when there is an identity of interest between the putative
intervenor and an existing party to the action,” the Second Circuit has offered general guidelines.
Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 180 (2d Cir. 2001). “Although perhaps
not an exhaustive list, we generally agree ... that evidence of collusion, adversity of interest,
nonfeasance, or incompetence may suffice to overcome the presumption of adequacy.” Id.
Mutnick admits that there is congruity of interest but asserts that there is circumstantial
evidence of collusion, because the parties agreed to transfer the California case to the Southern
District of New York. However, the fact that other plaintiffs’ class action lawyers have elected to
avoid frolic-and-detour litigation over personal jurisdiction and venue by suing Clearview and its
principals in a place where they inarguably can be sued does not evidence collusion; it is more
suggestive of a strategy directed toward avoiding litigation over collateral issues and getting
straight to the merits.

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By all indications, New York is the primary locus of the disputes. Schwartz and TonThat, the company’s principles and insureds, both reside in New York. (Plaintiffs’ Opposition to
David Mutnick’s Motion to Intervene (“Pl. Opp.”) Dkt. No. 27, at 3.) Clearview has its
headquarters and principal place of business in New York (Id.); the “majority” of Clearview’s
employees “work in New York” (Id.); the “servers hosting the data necessary for Clearview’s
business are located in New York” (Id.); and the “images collected by Clearview were accessible
to Clearview from its place of business in New York.” (Id.) Accordingly, as the Clearview
Defendants concede, New York “unquestionably has personal jurisdiction over all three
Clearview Defendants.” (Id.)
Mutnick has not established that he is entitled to intervention as of right. Therefore, his
motion to intervene pursuant to Rule 24(a) is denied.
III.

Mutnick’s Motion for Permissive Intervention is DENIED.
A court may permit a party to intervene if he has a claim or defense that shares a common

question of law or fact with the main action. Fed. R. Civ. P. 24(b). Mutnick’s action qualifies for
permissive intervention under that standard.
In exercising its discretion to decide a motion for permissive intervention, the court’s
primary consideration is whether intervention will unduly delay or prejudice the adjudication of
the rights of the parties whose lawsuits are being “invaded.” See U.S. v. Pitney Bowes, Inc., 25
F.3d 66, 73 (2d Cir. 1994) (“The principal guide in deciding whether to grant permissive
intervention” is prejudice to existing parties.).
Additionally, in determining whether to permit intervention under Rule 24(b), courts
consider “the nature and extent of the intervenors’ interests, whether their interests are
adequately represented by the other parties, and whether parties seeking intervention will

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significantly contribute to full development of the underlying factual issues in the suit and to the
just and equitable adjudication of the legal questions presented.” U.S. Postal Serv. v.
Brennan, 579 F.2d 188, 191–92 (2d Cir. 1978) The Second Circuit has recognized “the broad
discretion of the district court when considering permissive intervention,” and “A denial of
permissive intervention has virtually never been reversed.” AT&T Corp. v. Sprint Corp., 407
F.3d 560, 561 (2d Cir. 2005)
Though Mutnick contests that allowing him to intervene would prejudice Plaintiffs, the
Court, in its discretion, finds that permissive intervention for the sole purpose of dismissing,
staying, or transferring the actions would not further the ultimate resolution of these lawsuits.
There is little question that Plaintiffs who have either sued or consented to transfer to New York
would be prejudiced if Mutnick is granted permission to intervene, since he does not seek to
litigate here and only hopes to have the New York Actions dismissed, stayed, or transferred to
the Northern District of Illinois -- where the Clearview Defendants have already filed a motion to
dismiss or transfer for lack of personal jurisdiction.
Courts have previously recognized that intervention for the sole cause of dismissing,
staying, or transferring an action – the very action sought here – is prejudicial to the original
parties’ right to proceed before the court of their choosing. See, e.g., Travis, 284 F. Supp. 3d at
346-47 (finding prejudice to the original parties when proposed intervenors “do not seek to
intervene to participate in this case” but only to “dismiss, stay, or transfer this action,’ which
“would prejudice the rights of [plaintiff] and [defendants] given that they wish to proceed before
this Court.”); Glover, 2011 WL 5007805, at *7 (“the Proposed Intervenors’ stated interest in
only having this action dismissed or transferred ... will clearly prejudice the rights of the existing
parties in this action, [and] the Court declines to permit the Proposed Intervenors to intervene.”).

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Though Mutnick asserts that Illinois plaintiffs cannot be prejudiced by being required to
litigate in their home state, the hypothetical “convenience” of the forum does not end the inquiry.
Not all of the New York plaintiffs are Illinois residents. Furthermore, the New York Plaintiffs’
chosen forum is one in which jurisdiction over both Clearview and the individual defendants,
Schwartz and Ton-That, 2 is uncontested. And if it turns out that Clearview is not a state actor,
pendent jurisdiction in Illinois over the New York Defendants (on which Mutnick relies) would
be in jeopardy.
Mutnick asserts that this uncertainty could be addressed by staying the New York
Actions while these things play out in Chicago. But entry of a stay so that collateral issues not
addressed to the merits – issues that will never be raised in New York – can be litigated in
Illinois benefits no one, except, arguably, Mutnick’s counsel.
One more factor counsels against permissive intervention in this case. I recognize that,
absent intervention, the court need not – indeed, cannot – reach the merits of his motion to
dismiss, transfer, or stay the New York cases. See U.S. ex. rel. Eisenstein v. City of N.Y., 556
U.S. 928, 933 (2009) (“intervention is the requisite method for a nonparty to become a party to a
lawsuit.”). However, it bears noting that this court would almost certainly not have granted such
a motion. While I initially observed that there was some appeal to litigating the claims of Illinois
plaintiffs under an Illinois statute in Illinois (Dkt. No. 21), things have changed considerably
since I made that statement. There are now six cases pending in this court – two of them having
been transferred here from other courts, one after a judge carefully considered whether New

2

Both Schwartz and Ton-That have challenged the Northern District of Illinois’s jurisdiction over them and have
submitted declarations stating that they “do not reside, pay taxes, or own any property in Illinois,” and “have never
traveled to Illinois to conduct Clearview business.” (Ex. 6 ¶¶ 3-4; Ex. 7 ¶¶ 3-4.) That neither pays taxes or owns
property in Illinois nor have Illinois bank accounts or driver’s licenses. (Ex. 6 ¶ 3; Ex. 7 ¶ 3.) Neither have ever
traveled to Illinois to conduct business for Clearview. (Ex. 6 ¶ 4; Ex. 7 ¶ 4.) Clearview has no employees in Illinois,
is not registered to do business in Illinois, and has no offices, servers, or other facilities in Illinois. (Ex. 6 ¶10.)

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Case 1:20-cv-03104-CM Document 50 Filed 05/29/20 Page 18 of 18

York was an appropriate forum. Claims are being asserted under the laws of various states, not
just Illinois. New York is the one place where no jurisdictional issues can possibly be raised.
And aside from the fact that Mutnick’s case was the first filed (by a matter of days), much of
what a court would consider on a motion brought under 28 U.S.C. § 1404(a) counsels against
transfer. (See, e.g., supra, p. 15). The one factor that might augur for transfer of the cases that
raise issues under Illinois law is the inarguable fact that an Illinois judge is more familiar with
Illinois statutory law than is a New York judge. But it long ago became de rigeur for a single
court to oversee and coordinate litigation that raises identical factual issues under the laws of
several, even many states – either by assignment from the Judicial Panel on Multi-District
Litigation, or by the filings of multiple actions in a single court (pay-to-delay generic drug patent
cases brought under the laws of many different states is an example that comes to mind). There
would be little point to granting Mutnick’s motion to intervene if his reason for intervening was
(as it likely would be) futile.
Mutnick’s motion for leave to intervene permissively is, therefore, DENIED.
CONCLUSION
This constitutes the decision and order of the Court. It is a written opinion. The Clerk of
the Court is directed to remove the motion at Dkt. No. 22 from the Court’s list of pending
motions.
Dated: May 29, 2020

Chief Judge
BY ECF TO ALL COUNSEL

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