Your Silence Is the Settlement: Class Actions Need Witnesses
| Law, Business & Power Correspondent --- The 7th Circuit Court of Appeals just handed every plaintiff's lawyer in America a lesson they should have learned before they filed.
By Harvey Specter Jr. | Law, Business & Power Correspondent
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The 7th Circuit Court of Appeals just handed every plaintiff's lawyer in America a lesson they should have learned before they filed. The ruling that overturned the Clearview AI privacy settlement wasn't about the technology, wasn't about facial recognition, wasn't even really about privacy. It was about something far more fundamental: you cannot settle a class action on behalf of people who weren't at the table when the deal was made.
Let me make that concrete. Clearview AI — the company that scraped billions of facial images from the internet and sold access to law enforcement and private clients — faced a class action under Illinois' Biometric Information Privacy Act. A settlement was reached. Money was allocated. And one entire subclass of plaintiffs ended up receiving materially less from the fund than others, with no separate representation negotiating their share. The 7th Circuit saw exactly what that was. Not a compromise. A carve-out. A group of claimants whose interests were traded away in the room because nobody in that room was exclusively fighting for them.
This is the written side of the contract versus the unwritten side. The written side said everyone was represented. The unwritten side said some people were represented harder than others.
I've seen this dynamic play out in smaller rooms too. A client years ago — before the suits, when I was still learning which fights were worth taking — showed me a settlement agreement from a workplace dispute. On paper, a group of affected employees had all been represented by the same solicitor. In practice, the solicitor's incentive was to close the file, and the claimants whose cases were weakest got proportionally less without anyone in that negotiation whose sole job was to push back for them. Nobody went back to court. Nobody challenged it. They signed because they trusted the process, and the process trusted them to not read carefully enough.
The 7th Circuit challenged it. That's the difference between a court doing its job and a system just processing paper.
The Thomas Keller Restaurant Group case runs parallel. $2 million to settle a federal sexual harassment lawsuit. The number is notable not for its size but for what it confirms: the cost of institutional silence. These cases don't begin with a single incident — they begin with the moment someone in management knew, calculated the exposure, and decided that silence was cheaper than accountability. Until it isn't. Until the federal lawsuit arrives and the $2 million settlement lands in discovery requests and becomes the number that defines your brand in every future HR proceeding, every insurance renewal, every prospective employee's background search. The settlement didn't end the story. It became the story.
What connects these two cases is the same principle: representation without power is not representation. In the Clearview settlement, one class got less money because no one was exclusively fighting for them. In a workplace harassment case, victims settle for less than they're owed because the institution controls the information, the timeline, and the narrative. The law nominally protects everyone. The power structure protects whoever hired the better strategist.
Julian Taylor at Simmons & Simmons said something that I respect more than most things lawyers say publicly: *it can't ever be just about the money.* He's right. And also, the money is how you know whether it was ever about anything else. A $2 million settlement for years of documented harassment is a number someone ran through a spreadsheet. A class action overturned because one subgroup was underrepresented is a court saying the money doesn't launder the injustice.
The Acetaminophen ruling from the Second Circuit is the third piece of this. Nearly 600 lawsuits connecting prenatal Tylenol use to autism and ADHD were dismissed when the expert testimony was thrown out. The Second Circuit reversed that dismissal — meaning the experts get back in, and the cases get back in front of juries. This matters because the mechanism defendants use most reliably to kill mass tort litigation isn't winning on the merits. It's attacking the expert. Disqualify the science, and there's nothing left to argue. The Second Circuit just said: not so fast. The methodology was challengeable, not disqualifying. That distinction is the difference between 600 families having a day in court and 600 families having a door slammed in their faces.
Three cases. Three different arenas. One constant: the party with institutional power used a procedural mechanism — settlement structure, silence, expert exclusion — to close the case before anyone could see the full picture. And
