Dior recently defeated an Illinois Biometric Information Privacy Act (“BIPA”) putative class action on the pleadings by arguing that BIPA’s exemption for patient data captured in a health care setting covered the plaintiff’s use of Dior’s virtual try-on tool while shopping for non-prescription sunglasses.  See Warmack-Stillwell v. Christian Dior, Inc., No. 1:22-CV-04633 (N.D. Ill. Feb. 10, 2023). 

The plaintiff, Delma Warmack-Stillwell, filed a putative class action against Christian Dior, Inc. (“Dior”), contending that Dior violated BIPA because it profits (by virtue of an improved shopping experience) from the collection, storage, and use of customers’ facial geometry scans generated by the virtual try-on tool hosted on Dior’s website.  The plaintiff also asserted that Dior violated BIPA by failing to have a publicly available written policy for the retention and destruction of biometric data, and by failing to get her informed consent before collecting her biometric data.

Dior moved to dismiss, arguing in relevant part that BIPA’s statutory exclusion for “information captured from a patient in a health care setting” applies to the facial scans that allegedly were captured while the plaintiff virtually tried on sunglasses.  The plaintiff argued that she does not qualify as a “patient” because she was shopping for non-prescription sunglasses, not prescription glasses, and that Dior’s website is not a “health care setting.” 

The district court agreed with Dior, holding that even though the plaintiff was not trying on prescription glasses with Dior’s virtual try-on tool, she was still a “patient” within the meaning of BIPA because the non-prescription sunglasses she tried on “protect one’s eyes from the sun and are Class I medical devices under the Food & Drug Administration’s regulations.”  The court further reasoned that Dior’s virtual try-on tool “facilitates the provision of a medical device that protects vision,” and therefore the tool captured her facial scans in a “health care setting,” regardless of whether she was motivated to shop for the sunglasses for fashion purposes or for health purposes.

This ruling from the Northern District of Illinois may prove useful to other defendants who similarly fall into the health care exemption for BIPA. 

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Photo of Alice Phillips Alice Phillips

Alice Phillips is a litigation associate in the firm’s Los Angeles office. She represents clients in all stages of complex civil litigation, including at trial.

Previously, Alice clerked for Judge John M. Walker, Jr., on the U.S. Court of Appeals for the Second…

Alice Phillips is a litigation associate in the firm’s Los Angeles office. She represents clients in all stages of complex civil litigation, including at trial.

Previously, Alice clerked for Judge John M. Walker, Jr., on the U.S. Court of Appeals for the Second Circuit and Judge Carol Bagley Amon on the U.S. District Court for the Eastern District of New York.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.