{"id":237,"date":"2022-12-12T20:25:20","date_gmt":"2022-12-13T00:25:20","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=237"},"modified":"2025-03-12T11:12:27","modified_gmt":"2025-03-12T15:12:27","slug":"federal-court-in-new-york-rejects-louis-vuittons-motion-to-dismiss-bipa-suit-over-virtual-try-on-tool","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2022\/12\/12\/federal-court-in-new-york-rejects-louis-vuittons-motion-to-dismiss-bipa-suit-over-virtual-try-on-tool\/","title":{"rendered":"Federal Court In New York Rejects Louis Vuitton\u2019s Motion To Dismiss BIPA Suit Over Virtual Try-On Tool"},"content":{"rendered":"

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

Duane Morris Takeaway<\/em> <\/strong>– In another blow to retailers utilizing virtual try-on technology to enhance shopping experiences this holiday season, Judge Denise Cote for the U.S. District Court for the Southern District of New York recently denied in part Defendant Louis Vuitton North America, Inc.\u2019s\u00a0motion to dismiss proposed class action claims that its \u201cVirtual Try-On\u201d tool violated the Illinois Biometric Information Privacy Act (\u201cBIPA\u201d).\u00a0 In Theriot v. Louis Vuitton North America<\/i>, Inc.<\/i>, Case No. 1:22 Civ. 02944, the Court rejected<\/a> Defendant\u2019s extraterritoriality argument, as well as claims that a third party not named in the lawsuit operated the \u201cVirtual Try-On\u201d tool and collected users\u2019 biometric data. \u00a0However, the Court dismissed Plaintiffs\u2019 Section 15(a) claim that Defendant failed to develop and make publicly available a written policy for retaining and destroying biometric data on the grounds that Plaintiffs lacked Article III standing. \u00a0The Court\u2019s ruling in Theriot <\/i>illustrates the continued risk for retailers from biometric data privacy lawsuits invoking the BIPA.<\/p>\n

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

Louis Vuitton North America (\u201cDefendant\u201d), a subsidiary of French luxury conglomerate LVMH, operates a website that features a \u201cVirtual Try-On\u201d tool, which allows users to visualize themselves in a particular pair of eyeglasses.\u00a0 Id.<\/i> at 2.\u00a0 When a user clicks on the words, \u201cTry On\u201d, the tool automatically activates the user\u2019s computer or phone camera to depict a live image of that user \u201cwearing\u201d the selected glasses in real-time, or allows the user to upload a photograph of his or her face.\u00a0 Id.<\/i> at 2-3.\u00a0 While the tool is featured on Defendant\u2019s website, it is operated by an application created by a third-party company, which was not named in this case, and incorporates that company\u2019s proprietary technology to collect and process a user\u2019s facial geometry.\u00a0 Id.<\/i> at 3.<\/p>\n

Plaintiffs, residents of Illinois, alleged that Defendant 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\u00a0Plaintiffs also alleged that Defendant lacked a publicly-available written policy establishing how long such data is retained and when it is destroyed, in alleged violation of Section 15(a) of the BIPA.\u00a0\u00a0Plaintiffs filed a putative class action lawsuit against Defendant, alleging jurisdiction based on diversity and the Class Action Fairness Act, and seeking to represent a class of individuals that used the \u201cVirtual Try-On\u201d tool.\u00a0 Defendant moved to dismiss Plaintiffs\u2019 amended complaint.<\/p>\n

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

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

The Court dismissed Plaintiffs\u2019 Section 15(a) claim on the grounds that Plaintiffs lacked Article III standing.\u00a0 Id.<\/i> at 8.\u00a0 Relying on the Seventh Circuit\u2019s decision in\u00a0Bryant v. Compass Group<\/i>, which remanded Section 15(a) claims to state court because the company\u2019s statutory duty was to the public generally, the Court concluded that because the company\u2019s duty was not to the specific individuals whose biometric information is collected, but to the public generally, Plaintiffs failed to allege any particularized, individual harm.\u00a0 Id.<\/i>\u00a0 The Court reasoned that \u201cPlaintiffs\u2019 \u00a7 15(a) claim is expressly based on the \u2018failure to develop and make publicly available a written policy for retention and destruction of biometric identifiers,\u2019 rather than on the unlawful retention of data after the initial purpose for collecting the data had been satisfied \u2026. As the court held in Bryant<\/i>, because the duty to develop and disclose a retention policy is owed to the public generally, plaintiffs have failed to allege a particularized harm sufficient for Article III standing.\u201d\u00a0 Id.<\/i><\/p>\n

Plaintiffs sought to analogize their case to another decision by the Seventh Circuit \u2014 Fox v. Dakkota Integrated Systems, LLC<\/i>, in which the Seventh Circuit found that the plaintiff had standing to pursue her Section 15(a) claims where she alleged that the defendant not only failed to publish a retention policy, but unlawfully retained<\/u> her biometric data, and such allegations were sufficient to allege an injury in fact for Article III standing.\u00a0 Id.<\/i> at 9.\u00a0 But the Court rejected this comparison, noting that Plaintiffs\u2019 amended complaint centered on Defendant\u2019s alleged failure to develop and publish policies governing data collection and retention \u2014 not Defendant\u2019s retention of the data.\u00a0 Id.<\/i>\u00a0 The Court also rejected Plaintiffs\u2019 alleged injury due to \u201cthe unknowing loss of control of \u2026of biometric identifiers\u201d and \u201cviolations of their privacy\u201d as relevant to Plaintiffs\u2019 Section 15(b) claim \u2014 not a Section 15(a) claim.\u00a0 Id.<\/i> at 9-10.<\/p>\n

However, the Court rejected both of Defendant\u2019s arguments to dismiss Plaintiffs\u2019 Section 15(b) claims.<\/p>\n

First, the Court rejected Defendant\u2019s argument that Plaintiffs \u201cpleaded themselves out of court\u201d by alleging that Defendant\u2019s \u201cVirtual Try On\u201d tool was powered by a third party not party to the litigation, and that that third party is the entity that collects users\u2019 biometric identifiers.\u00a0 Id.<\/i>\u00a0 at 12.\u00a0 Instead, the Court concluded that Plaintiffs\u2019 complaint sufficiently alleged that Defendant \u201ccollects detailed and sensitive biometric identifiers and information, including complete facial scans, of its users\u201d and \u201ctakes active steps to collect users\u2019 facial scans \u2026. such as inviting users to take advantage of the Virtual Try-On tool.\u201d\u00a0 Id.<\/i> at 12-13.<\/p>\n

Second, the Court found no basis to dismiss Plaintiffs\u2019 Section 15(b) claim on extraterritoriality grounds even though, as Defendant argued, the events giving rise to Plaintiffs\u2019 claims did not occur \u201cprimarily and substantially\u201d in Illinois.\u00a0 Id.<\/i> at 14.\u00a0 Instead, the Court concluded that Plaintiffs were \u201cIllinois residents who used the Virtual Try-On Tool while in Illinois, and that there was no indication from Plaintiffs\u2019 complaint that any other events relevant to their claims occurred elsewhere.\u00a0 Id.<\/i><\/p>\n

Implications for Companies Using Biometric Equipment<\/b><\/p>\n

The Court\u2019s ruling in Theriot <\/i>illustrates the continued risk for retailers from biometric data privacy lawsuits invoking the BIPA, and the resiliency of Section 15(b) claims despite efforts to dismiss at the pleading stage.<\/p>\n

Notably, earlier lawsuits involving BIPA claims and eyewear have been dismissed under BIPA\u2019s health care exemption, which exempts \u201cinformation captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996,\u201d including “prescription lenses, non-prescription sunglasses, and frames meant to hold prescription lenses.\u201d\u00a0 See<\/i> Opinion and Order at 7, Svobova v. Frames for America, Inc.<\/i>, No. 21-CV-5509 (N.D. Ill. Sept. 8, 2022) (concluding that plaintiff was a \u201cpatient receiving a health care service in a health care setting). But the issue of whether courts will apply BIPA\u2019s health care exemption to luxury sunglasses is currently pending in the U.S. District Court for the Northern District of Illinois in Warmack v. Christian Dior, Inc.<\/i>, Case No. 1:22-CV-04633, while its application with respect to so-called \u201ccosmeceuticals\u201d and other luxury skincare products raises significant FDA regulatory concerns.<\/p>\n

In the meantime, companies should implement proper safeguards and consent processes for the collection and retention of biometric data \u2014 particularly with respect to Illinois consumers or states considering similar legislation \u2014 and consider how they notify users and obtain consent regarding biometric data.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Kelly Bonner, Gerald L. Maatman, Jr., and Gregory Tsonis Duane Morris Takeaway – In another blow to retailers utilizing virtual try-on technology to enhance shopping experiences this holiday season, Judge Denise Cote for the U.S. District Court for the Southern District of New York recently denied in part Defendant Louis Vuitton North America, Inc.\u2019s\u00a0motion … <\/p>\n

Continue reading “Federal Court In New York Rejects Louis Vuitton\u2019s Motion To Dismiss BIPA Suit Over Virtual Try-On Tool”<\/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":[59],"tags":[],"ppma_author":[7,8],"class_list":["post-237","post","type-post","status-publish","format-standard","hentry","category-privacy-class-actions"],"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\/237","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=237"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/237\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=237"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=237"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=237"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=237"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}