{"id":341,"date":"2023-02-14T20:32:10","date_gmt":"2023-02-15T00:32:10","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=341"},"modified":"2025-03-12T11:11:48","modified_gmt":"2025-03-12T15:11:48","slug":"dior-dismissed-from-illinois-bipa-class-action-lawsuit-challenging-virtual-try-on-technology","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/02\/14\/dior-dismissed-from-illinois-bipa-class-action-lawsuit-challenging-virtual-try-on-technology\/","title":{"rendered":"Dior Dismissed From Illinois BIPA Class Action Lawsuit Challenging Virtual Try-On Technology"},"content":{"rendered":"

\"\"<\/a>By Kelly A. Bonner, Alex W. Karasik, Gerald L. Maatman, Jr., and Jennifer A. Riley<\/strong><\/p>\n

Duane Morris Takeaways<\/em><\/strong>:\u00a0 <\/strong>In a significant win for fashion and beauty retailers in the privacy class action space, in Warmack-Stillwell v. Christian Dior Inc.<\/em>, No. 1:22-CV-04633, 2023 U.S. Dist. LEXIS 22926 (N.D. Ill. Feb. 10, 2023), an Illinois federal court held<\/a> that an exemption to the Illinois Biometric Information Privacy Act (\u201cBIPA\u201d) for data captured from a patient in a health care setting barred proposed class action claims alleging that luxury giant Christian Dior Inc.\u2019s (\u201cDior\u201d) virtual try-on tool (\u201cVTOT\u201d) violated the BIPA.<\/p>\n

Businesses in Illinois, particularly online fashion and beauty retailers, can use this ruling to attack BIPA claims involving VTOT technology.<\/p>\n

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

As discussed in our previous publications<\/a>, lawsuits involving BIPA claims and eyewear have been dismissed under one of BIPA\u2019s statutory exemptions, which in relevant part excludes from its definitions of biometric identifiers and biometric information: (1) information captured from a patient in a health care setting; or (2) information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996, including prescription lenses, non-prescription sunglasses, and frames meant to hold prescription lenses.<\/p>\n

Plaintiff alleged that Dior maintained a VTOT feature on its website that collected users\u2019 facial geometry data without first obtaining written consent or informing users of the purpose and length of time that their data was being collected in violation of Section 15(b) of BIPA. Plaintiff also alleged that Dior failed to provide a publicly available data retention and destruction schedule, as required by Section 15(a) of BIPA.<\/p>\n

Dior moved to dismiss Plaintiff\u2019s complaint on the basis that the BIPA\u2019s health care exemption applied to non-prescription sunglasses, such as the ones sold by Dior and which the plaintiff alleged that she tried on with the VTOT technology, and thus precluded Plaintiff\u2019s claims.<\/p>\n

Plaintiff countered that the sunglasses were fashion accessories; Dior\u2019s website was not a health care setting; and Dior\u2019s consumers were not patients. Plaintiff also sought to distinguish prior decisions applying the BIPA\u2019s health care exemption as focusing on the VTOT technology being used for prescription glasses, akin to optometrist fittings, and not in connection with the purchase of luxury sunglasses.\u00a0 Id. <\/em>at *8.<\/p>\n

The Court\u2019s Decision<\/strong><\/p>\n

The Court granted Dior\u2019s motion to dismiss under Rule 12(b)(6).\u00a0 First, the Court explained that Plaintiff qualified as a \u201cpatient in a health care setting\u201d under the dictionary definition of the term \u201cpatient,\u201d and that Dior\u2019s VTOT feature \u201cfacilitates the provision of a medical device that protects vision.\u201d Id. <\/em>at *8.\u00a0 Similarly, the Court held that use of the VTOT technology constituted \u201chealth care,\u201d which the dictionary defined as \u201cefforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals.\u201d\u00a0 Id. <\/em>at *9.<\/p>\n

In addition, the Court reasoned that the relevant test was \u201cnot a user\u2019s subjective understanding, but rather an objective application of the text of the exemption.\u201d Id. <\/em>at *8-9.\u00a0 The Court opined that the outcome of the analysis should not change if a consumer uses the VTOT in search of primarily stylish sunglasses rather than protective ones.<\/p>\n

Plaintiff attempted to distinguish Dior\u2019s website from a \u201chealth care setting\u201d by arguing that \u201c[a]n artist prepping a canvas is not providing a health care service if they use a scalpel instead of an Xacto knife.\u201d \u00a0Id. <\/em>at *9. \u00a0As to that point, the Court concluded that the VTOT feature facilitated the purchase of sunglasses to wear on one\u2019s face and protect one\u2019s eyes, thus performing the product\u2019s intended medical function rather than an unconventional purpose.<\/p>\n

Similarly, the Court rejected Plaintiff\u2019s attempts to analogize her case to BIPA suits against blood plasma centers, in which courts rejected application of the health care exemption.\u00a0 Even if the cases applied the same definitions of \u201chealth care\u201d and \u201cpatient,\u201d the Court concluded that the removal of plasma for commercial purposes is not \u201chealth care because the purpose \u2014 at least from the plasma donors\u2019 perspectives \u2014 was not to \u2018maintain or restore physical, mental or emotional well-being\u2019; it was to get paid.\u201d \u00a0Id. <\/em>at *11.<\/p>\n

Finally, the Court notably denied Dior\u2019s motion to dismiss under Rule 12(b)(1), rejecting Dior\u2019s argument that Plaintiff failed to allege an injury-in-fact sufficient for Article III standing. The Court concluded that Plaintiff sufficiently alleged an injury-in-fact under Section 15(a) \u201cbecause \u201cunlawful retention<\/em> of a person\u2019s biometric data is as concrete and particularized an injury as an unlawful collection<\/em> of a person\u2019s biometric data.\u201d \u00a0\u00a0Id. <\/em>at *11.<\/p>\n

Accordingly, the Court granted Dior\u2019s motion to dismiss on Rule 12(b)(6) grounds, but rejected Dior\u2019s Article III standing argument and denied its motion based on Rule 12(b)(1).<\/p>\n

Implications for Retailers<\/strong><\/p>\n

The Court\u2019s decision in Warmack\u00a0<\/em>is a solid victory for fashion and apparel retailers, and indicates that courts are willing to expand the BIPA\u2019s healthcare exemption to more retail-oriented environments, and adopt a plain reading of the statue rather than seeking to discern legislative intent. This ruling could have significant implications for personal care products retailers, especially those who utilize VTOT features to assess skin complaints such as aging, hyperpigmentation, and recommend treatments, and whether those defenses will draw regulatory scrutiny for purposed \u201cdrug\u201d claims.<\/p>\n

In the meantime, retailers should stay abreast of biometric data privacy laws in Illinois and beyond, and ensure that their privacy policies stay current with evolving nationwide legislation.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Kelly A. Bonner, Alex W. Karasik, Gerald L. Maatman, Jr., and Jennifer A. Riley Duane Morris Takeaways:\u00a0 In a significant win for fashion and beauty retailers in the privacy class action space, in Warmack-Stillwell v. Christian Dior Inc., No. 1:22-CV-04633, 2023 U.S. Dist. LEXIS 22926 (N.D. Ill. Feb. 10, 2023), an Illinois federal court … <\/p>\n

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