{"id":2615,"date":"2025-12-30T17:12:27","date_gmt":"2025-12-30T21:12:27","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=2615"},"modified":"2026-01-08T15:01:48","modified_gmt":"2026-01-08T19:01:48","slug":"seventh-circuit-affirms-certification-of-bipa-class-comprised-of-customers-who-used-amazons-virtual-try-on-tool","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2025\/12\/30\/seventh-circuit-affirms-certification-of-bipa-class-comprised-of-customers-who-used-amazons-virtual-try-on-tool\/","title":{"rendered":"Seventh Circuit Affirms Certification Of BIPA Class Comprised Of Customers Who Used Amazon\u2019s \u201cVirtual Try-On\u201d Tool\u00a0"},"content":{"rendered":"
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By Gerald L. Maatman, Jr. and Tyler Zmick<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:\u00a0\u00a0<\/em><\/strong>In Svoboda, et al. v. Amazon.com Inc., No. 25-1361, 2025 WL 3654053 (7th Cir. Dec. 17, 2025), a panel of the U.S. Court of Appeals for the Seventh Circuit\u00a0affirmed an order granting class certification<\/a>\u00a0in a case alleging that Amazon\u2019s \u201cvirtual try-on\u201d technology violated the Illinois Biometric Information Privacy Act (\u201cBIPA\u201d). In doing so, the Seventh Circuit dealt Amazon a significant blow by allowing Plaintiffs to proceed on behalf of a class comprised of hundreds of thousands of people who used Amazon\u2019s technology. The Svoboda decision is the most recent example of the plaintiffs\u2019 bar successfully obtaining class certification in an Illinois privacy class action, and it shows that even the most sophisticated companies can face exposure arising out of their data collection and retention practices.\u00a0<\/em><\/p>\n\n\n\n

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

Plaintiffs alleged that Amazon sells makeup and eyeware products through its mobile shopping application and that the company\u2019s \u201cvirtual try-on\u201d (\u201cVTO\u201d) technology incorporates augmented reality to overlay the products on images of users, allowing shoppers to see how makeup and eyewear products look on their faces. To superimpose a product over an image of a user\u2019s face, Plaintiffs claimed that the VTO software detects a person\u2019s facial features to determine where to virtually overlay a given makeup or eyewear product.<\/p>\n\n\n\n

Based on these allegations, Plaintiffs filed a class action in September 2021, claiming that Amazon violated the BIPA by collecting, capturing, storing, or otherwise obtaining the facial geometry and associated personal identifying information of thousands of Illinois residents who used Amazon\u2019s VTO technology.<\/p>\n\n\n\n

On March 30, 2024, Judge Jorge L. Alonso of the U.S. District Court for the Northern District of Illinois certified a class of individuals who used the VTO feature on Amazon\u2019s mobile website or app while in Illinois on or after September 7, 2016 (our previous blog post on the district court\u2019s order can be found here<\/a>). Amazon subsequently appealed the class certification order to the Seventh Circuit.<\/p>\n\n\n\n

The Seventh Circuit\u2019s Opinion<\/strong><\/p>\n\n\n\n

On appeal, the Seventh Circuit affirmed the class certification order and held that the district court did not abuse its discretion in certifying a class of Amazon VTO users within Illinois.<\/p>\n\n\n\n

The Seventh Circuit began by identifying Federal Rule of Civil Procedure 23(a)\u2019s four class-certification requirements (i.e.<\/em>, numerosity, commonality, typicality, and adequacy) and by explaining that Plaintiffs must also satisfy Rule 23(b)(3), which requires that \u201cquestions of law or fact common to class members predominate\u201d over individual questions and that \u201ca class action is superior to other available methods for fairly and efficiently adjudicating the controversy.\u201d The Seventh Circuit further noted that Amazon\u2019s appeal challenged the district court\u2019s order only with respect to Rule 23(b)(3)\u2019s predominance and superiority requirements.<\/p>\n\n\n\n

In affirming the district court\u2019s predominance ruling, the Seventh Circuit found that the same conduct (specifically, Amazon’s alleged use of the VTO application) unites Plaintiffs\u2019 BIPA claims and that issues relating to the functionality of the VTO software, Amazon\u2019s alleged use of class members\u2019 biometric data, and legal questions about whether that use violated the BIPA were common to the class and could be resolved by the district court \u201cin one stroke.\u201d<\/p>\n\n\n\n

The Seventh Circuit then turned to the individualized questions identified by Amazon, including the question of whether a class member was in Illinois at the time he or she used Amazon\u2019s VTO tool. Regarding this \u201clocational element,\u201d the Seventh Circuit observed that class members must prove that they were in Illinois when they used the VTO tool to have viable BIPA claims and that the lack of such proof also raised questions relating to class member identification and manageability. The Seventh Circuit further acknowledged that common proof of location may only be available for a subset of claimants, while \u201cindividualized inquiries will be necessary for others.\u201d I<\/em>d.<\/em> at *5 (\u201cFor example, where billing address and geolocation data point to different states, or are unavailable for an alleged VTO use, individual affidavits or other proof will be necessary to show that the claimant used the VTO in Illinois.\u201d).<\/p>\n\n\n\n

The Seventh Circuit ultimately ruled that the location of potential class members could generally be determined using (i) users\u2019 billing addresses, (ii) users\u2019 IP addresses and geolocation data, and (iii) personal affidavits from class members attesting that they used the VTO application while in Illinois, and that individualized questions connected to proof of location would not predominate over common questions. See also id.<\/em> (\u201c[I]t is not uncommon for class actions to have a \u2018final phase\u2019 for class members to submit individualized proof of a claim\u2026.A phase requiring individual presentations of proof on all (or part of) an element of a claim does not defeat predominance. Stated another way, an individual question does not predominate where common questions of law and fact relevant to liability otherwise generate significant efficiencies and the individual question is manageable.\u201d) (citation omitted). The Seventh Circuit also rejected Amazon\u2019s due process challenge to the district court\u2019s predominance finding because the company would have the opportunity to challenge class members\u2019 individual proof of location.<\/p>\n\n\n\n

Implications <\/strong>F<\/strong>or Corporate Counsel<\/strong><\/p>\n\n\n\n

Svoboda<\/em> is one of many cases demonstrating the dangers associated with collecting or retaining biometric information without implementing BIPA-compliant policies. The opinion is also a reminder that the larger the company, the larger the potential class size (and accompanying statutory damages award). The class in Svoboda <\/em>contained over one hundred thousand individuals, illustrating the potentially significant exposure associated with running afoul of Illinois privacy laws.<\/p>\n\n\n\n

Corporate counsel should also remember that the Seventh Circuit\u2019s discussion in Svoboda<\/em> applies to all<\/em><\/strong> class actions (not just those alleging BIPA violations) in which it may not be possible to identify a class member\u2019s location at the time of the alleged privacy violation. As noted above, due process does not require that class counsel be able to uncover such information for all class members at the certification stage. See also, e.g.<\/em>, Mullins v. Direct Digital, LLC<\/em>, 795 F.3d 654, 672 (7th Cir. 2015) (\u201c[C]ourts should not decline certification merely because the plaintiff’s proposed method for identifying class members relies on affidavits.\u201d).<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr. and Tyler Zmick Duane Morris Takeaways:\u00a0\u00a0In Svoboda, et al. v. Amazon.com Inc., No. 25-1361, 2025 WL 3654053 (7th Cir. Dec. 17, 2025), a panel of the U.S. Court of Appeals for the Seventh Circuit\u00a0affirmed an order granting class certification\u00a0in a case alleging that Amazon\u2019s \u201cvirtual try-on\u201d technology violated the Illinois … <\/p>\n

Continue reading “Seventh Circuit Affirms Certification Of BIPA Class Comprised Of Customers Who Used Amazon\u2019s \u201cVirtual Try-On\u201d Tool\u00a0“<\/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":[125],"tags":[],"ppma_author":[7,12],"class_list":["post-2615","post","type-post","status-publish","format-standard","hentry","category-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","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""},{"term_id":12,"user_id":578,"is_guest":0,"slug":"tzzmick","display_name":"Tyler Z. Zmick","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/zmicktyler-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/2615","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=2615"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/2615\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=2615"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=2615"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=2615"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=2615"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}