{"id":180,"date":"2022-11-11T12:34:25","date_gmt":"2022-11-11T16:34:25","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=180"},"modified":"2025-03-12T11:13:19","modified_gmt":"2025-03-12T15:13:19","slug":"illinois-federal-court-rejects-efforts-to-dismiss-bipa-claims-involving-virtual-try-on-technology","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2022\/11\/11\/illinois-federal-court-rejects-efforts-to-dismiss-bipa-claims-involving-virtual-try-on-technology\/","title":{"rendered":"Illinois Federal Court Rejects Efforts To Dismiss BIPA Claims Involving Virtual Try-On Technology"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr<\/a>., Gregory Tsonis<\/a>, and Kelly Bonner<\/a><\/strong><\/p>\n

Duane Morris Takeaways \u2013<\/em><\/strong>\u00a0In a significant decision for retailers, Judge Manish Shah of the U.S. District Court for the Northern District of Illinois recently denied in part<\/a>\u00a0Defendant Est\u00e9e Lauder\u2019s motion to dismiss proposed class action claims that its consumer \u201ctry-on\u201d technology violated the Illinois Biometric Information Privacy Act (\u201cBIPA\u201d).\u00a0 The Court rejected Defendant\u2019s personal jurisdiction argument, as well as claims that its website terms and conditions required Plaintiff to arbitrate her dispute, and that Plaintiff lacked standing to sue on behalf individuals that used websites Plaintiff herself did not visit. In a decision entitled Kukovec v. The Est\u00e9e<\/em> Lauder Companies, Inc.<\/em>, Case No. 22-CV-1988 (N.D. Ill.), the Court determined, however, that Plaintiff did not sufficiently plead that the cosmetics giant intentionally or recklessly violated consumers\u2019 biometric privacy rights, and thereby dismissed those claims.\u00a0 The ruling in Kukovec<\/em> illustrates the ongoing legal risks for retailers in using \u201ctry-on\u201d tech to enhance customer service.<\/p>\n

Case Background<\/strong><\/p>\n

Too Faced Cosmetics, a cosmetics brand owned by Defendant Est\u00e9e Lauder, operates a website featuring a try-on function to allows shoppers to virtually test its products.\u00a0 When a shopper clicks a \u201cTry It On\u201d button, a pop-up box appears containing a disclaimer informing the shopper that their \u201cimage will be used to provide you with the virtual try-on experience\u201d and a link to a privacy policy.\u00a0 Id<\/em>. at 4.\u00a0 If the shopper selects the \u201cLive Camera\u201d option, the user\u2019s computer camera is activated and the product is overlaid on part or all of the user\u2019s face.\u00a0 Id<\/em>.<\/p>\n

Plaintiff, an Illinois resident, alleged that Defendant\u2019s try-on tool violated Section 15(b) of the BIPA by capturing users\u2019 facial geometry without informing them how that data is collected, used, or retained.\u00a0 Id<\/em>. at 6.\u00a0 Plaintiff also alleged that Defendant lacked a publicly-available written policy establishing how long such data is retained and when it is destroyed, in violation of Section 15(a) of the BIPA.\u00a0 Id<\/em>.\u00a0 Plaintiff filed a putative class action lawsuit against Defendant, seeking to represent a class of individuals that used the virtual try-on tool not just on the Too Faced website, but also four other websites for Defendant\u2019s other brands.\u00a0 Id<\/em>.\u00a0 Defendant removed the case to federal court based on diversity jurisdiction and the Class Action Fairness Act, then moved to dismiss the complaint.<\/p>\n

The Court\u2019s Ruling On Defendant\u2019s Motion To Dismiss <\/strong><\/p>\n

Defendant sought to dismiss Plaintiffs\u2019 claims on four grounds, three of which the Court fully rejected.<\/p>\n

First, Defendant argued that the Court lacked personal jurisdiction over it since its \u201cTry On\u201d tool was \u201cgeography neutral,\u201d did not target Illinois consumers, and the mere accessibility of the tool to Illinois consumers lacked the substantial connection to Defendant\u2019s sale of cosmetics and employees in Illinois.\u00a0 Id<\/em>. at 8.\u00a0\u00a0 The Court rejected this \u201coverly narrow\u201d interpretation of personal jurisdiction. It held that \u201c[t]he try-on tool is part of [Defendant\u2019s] cosmetics marketing and sales strategy,\u201d since those that use the tool are also presented with buttons to add the products to their cart or send as a gift.\u00a0 Id<\/em>. at 9.<\/p>\n

Second, Defendant argued that venue was improper because Plaintiff\u2019s claims were subject to arbitration pursuant to a provision in its website\u2019s terms and conditions.\u00a0 Id<\/em>. at 11.\u00a0 Central to the issue of whether Plaintiff had constructive knowledge of the arbitration agreement was whether the terms and conditions were presented in \u201cclickwrap\u201d form, where a customer has to affirmatively check a box to assent (as courts generally uphold such assent), or \u201cbrowsewrap\u201d form, where a customer\u2019s continued use of a website is taken as passive assent (and which require more detailed analysis).\u00a0 Defendant\u2019s website contained both clickwrap and browsewrap forms, but the Plaintiff only visited pages with browsewrap forms.\u00a0 Id<\/em>. at 12.\u00a0 Users of the virtual try-on tool received a pop-up notification that had Too Faced\u2019s privacy policy, not its terms and conditions, though the privacy policy contained a link to the terms and conditions.\u00a0 Id<\/em>.\u00a0 On other pages, the terms and conditions were presented at the bottom of webpages \u201cin the middle of fifteen links to other pages on the site and six links to social media platforms. . .\u201d\u00a0 Id<\/em>.\u00a0 The Court held such a website design insufficient to provide constructive notice, since a customer \u201ccould easily try the tool without once confronting the terms-and-conditions link.\u201d\u00a0 Id<\/em>. at 14.\u00a0 Further, the Court rejected Defendant\u2019s argument that the Plaintiff had constructive notice because she recently filed two other BIPA-related lawsuits against TikTok and L\u2019Or\u00e9al, noting that a website user \u201cis not automatically on notice that any website she visits likely has terms and conditions just because she\u2019s visited other websites that have them.\u201d\u00a0 Id<\/em>. at 15.\u00a0 Accordingly, the Court held that Plaintiff lacked constructive knowledge and that the arbitration clause could not be enforced against her.<\/p>\n

Third, Defendant also sought to dismiss the complaint on the basis that it provided only \u201cconclusory legal statements\u201d and lacked sufficient facts establishing that Defendant captured users\u2019 facial geometry, collected biometric data, or acted negligently, recklessly, or intentionally under the BIPA.\u00a0 Id<\/em>. at 16.\u00a0 The Court disagreed. It found that the complaint \u201calleged enough to infer\u201d that Defendant captured Plaintiff\u2019s biometric information and \u201cno intermediary separated the defendant from the collection of plaintiff\u2019s facial geometry.\u201d\u00a0 Id<\/em>. at 17.\u00a0 However, since recklessness and intentionality require a specific state of mind that Plaintiff did not allege, the Court dismissed Plaintiff\u2019s claims for reckless or intentional conduct, but allowed Plaintiff an opportunity to amend her complaint.\u00a0 Id<\/em>. at 18.<\/p>\n

Finally, Defendant contended that since Plaintiff did not use the websites of its four other brands that utilize the virtual try-on tool, she lacked standing to sue on their behalf.\u00a0 The Court noted that because no class had been certified, yet Defendant\u2019s argument was premature. The Court reasoned that plaintiff \u201calleges an injury from a technology deployed across multiple websites\u201d and that standing exists because Plaintiff\u2019s injury \u201ccan be redressed by a decision in her favor.\u201d\u00a0 Id<\/em>. at 20.<\/p>\n

Implications For Companies Using Biometric Equipment<\/strong><\/p>\n

By allowing consumers to \u201ctry-on\u201d products in a virtual environment, retailers increasingly rely on biometric data to provide hyper-personalized services and recreate the real-world shopping experience for the virtual world.\u00a0 But as the popularity of try-on technology grows, so too does the legal risk from biometric data privacy lawsuits.\u00a0 Since 2019, numerous retailers have been sued for violating the BIPA and other state biometric privacy laws for their use of try-on tech and other digital tools to personalize consumer recommendations.\u00a0 The Kukovec<\/em> decision highlights how new technologies expose companies to costly litigation, even when they take steps to notify consumers or mandate arbitration.\u00a0 Companies should consider how they notify customers regarding try-on technology, ensure that their privacy policies stay current with evolving legislation and competing definitions of \u201cbiometric data,\u201d and implement proper safeguards and consent processes.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Gregory Tsonis, and Kelly Bonner Duane Morris Takeaways \u2013\u00a0In a significant decision for retailers, Judge Manish Shah of the U.S. District Court for the Northern District of Illinois recently denied in part\u00a0Defendant Est\u00e9e Lauder\u2019s motion to dismiss proposed class action claims that its consumer \u201ctry-on\u201d technology violated the Illinois Biometric … <\/p>\n

Continue reading “Illinois Federal Court Rejects Efforts To Dismiss BIPA Claims Involving Virtual Try-On Technology”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97,59],"tags":[27],"ppma_author":[7,8],"class_list":["post-180","post","type-post","status-publish","format-standard","hentry","category-erisa-class-actions","category-privacy-class-actions","tag-bipa"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","author_category":"","last_name":"Maatman Jr.","first_name":"Gerald L.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/geraldmaatman.html","description":"Read Gerald's bio.<\/a>"},{"term_id":8,"user_id":577,"is_guest":0,"slug":"gtsonis","display_name":"Gregory Tsonis","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/tsonisgreg-100x100.jpg","author_category":"","last_name":"Tsonis","first_name":"Gregory","job_title":"","user_url":"","description":"Read Gregory's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/180","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=180"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/180\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=180"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=180"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=180"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=180"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}