A Cook County woman and her attorneys have won approval to move forward with a class action lawsuit under Illinois’ biometrics privacy law against Amazon for allegedly improperly scanning the faces of people using its online virtual try-on tool when buying cosmetics.
The win marked a reversal of fortunes for the same woman and lawyers, who had earlier whiffed in a similar, but separate class action attempt vs an online eyewear seller over its virtual try-on tool.
On March 30, U.S. District Judge Jorge Alonso granted the request from named plaintiffs Tanya N. Svoboda and Antonella M. Ortiz Colosi for class certification, which grants them permission to move their case forward as a class action. That, in turn, dramatically increases the expected payout from Amazon, and expected fees that could be paid to their lawyers, which could amount to millions of dollars more in fees.
The plaintiffs are represented by attorneys Keith J. Keogh, Theodore H. Kuyper and Timothy J. Sostrin, of the firm of Keogh Law, of Chicago.
The named plaintiffs will receive a much smaller comparative bump in payment from any settlement, as they will entitled to a “service award,” usually worth a few thousand dollars, depending on potential settlement terms.
Svoboda and the Keogh attorneys filed suit in Cook County Circuit Court in Chicago in 2021. In the complaint, they asserted the plaintiffs used Amazon’s virtual try-on tool, available on mobile devices, when allegedly buying makeup products.
The lawsuit asserts the Amazon tool works similarly to other apps used by many other online retailers. Allegedly, the tool scans a user’s face, creating a template upon which the tech can use augmented reality to virtually replicate how a particular pair of glasses or a new kind of lipstick or blush may look on that particular person.
The complaint alleges, however, that these face scans amount to violations of the Illinois Biometric Information Privacy Act. They claim Amazon was required by the law to obtain consent from people in Illinois and provide them with certain notices concerning how Amazon would handle their face scans, before allowing people in Illinois to use the tool.
The lawsuit is similar in many ways to thousands of other class action lawsuits lodged under the law against businesses operating in Illinois since 2015, when the first trial lawyers discovered the potent nature of the law’s notice and consent provisions.
The lawsuits have primarily targeted employers, mostly over the use of so-called “biometric timeclocks,” which require workers to scan a fingerprint or other “biometric identifier” when punching in and out of work shifts.
However, a large number of class actions have also targeted tech companies and retailers, for allegedly failing to comply with the BIPA law’s notice and consent provisions when dealing with customers.
Facebook, for instance, famously agreed to pay $650 million to settle a class action lawsuit, claiming it improperly scanned the faces of people appearing in photos on its platform.
The power in the law comes from its damages provision. The law allows plaintiffs to demand damages of $1,000-$5,000 per violation.
The potential damage awards have received big boosts from the Illinois Supreme Court. To begin, in 2019, the state high court declared plaintiffs do not need to prove they were actually harmed by the alleged improper data collections before filing suit.
Then, in 2023, the state high court delivered two further big blows, ruling that individual violations should be defined as each time someone’s biometrics are scanned, not just the first time. And the court further declared that the damages can include all biometric scans dating back to five years before a lawsuit is filed.
The rulings have prompted warnings and calls for reform from industry and judges, alike, who have said the law should be changed to address the potential for financially ruinous rulings against employers and other companies operating in Illinois, and allow trial lawyers to reap windfalls.
According to a 2023 report, for instance, an industry group said trial lawyers in BIPA cases have collectively raked in hundreds of millions of dollars in attorney fees from cases in which no plaintiffs have yet alleged they suffered any real harm from the biometric scans.
Along the way, businesses have scored a few wins to limit potential exposure. Courts have declared, for instance, that employees belonging to unions with collective bargaining agreements can be shielded from BIPA claims from those same employees.
And in 2022, different federal judges in Chicago ruled that eyewear sellers can’t be sued over their virtual try-on tool face scans, because they qualify for an exemption within the BIPA law for health care providers. Svoboda and the Keogh firm had led one of those unsuccessful lawsuits against retailer FramesDirect.
In the case against Amazon, the online retail giant attempted to use that exemption to defeat Svoboda and Keogh. Amazon asserted most of the proposed plaintiffs’ class would bring claims based on virtual try-on scans for eyewear.
Judge Alonso, however, said face scans for cosmetics are different from those for prescription eyewear.
Alonso noted the named plaintiffs themselves never claimed to have used Amazon’s virtual try-on tool for eyewear, only for lipstick. So, the judge said the health care exemption carved out by the decisions related to prescription eyewear don’t apply to their claims against Amazon.
Further, Alonso said scans of customers’ mouths for cosmetic purposes also qualify as “biometric,” whether or not the eyes are also scanned.
“Amazon does not explain how mapping the user’s mouth versus eyes and nose might be materially different for determining whether the information is ‘biometric,’ when each VTO uses the same augmented reality process to map facial landmarks,” the judge wrote.
It is unknown at this time how many people will be included in the final class. However, at this point, the judge noted plaintiffs have estimated the class will include hundreds of thousands of people.
When multiplied against the allowed individual damages claims, the final payout could easily amount to tens of millions of dollars or more, based on other BIPA settlements. Plaintiffs’ lawyers typically receive between 15% to a third of settlement amounts as fees.
Amazon has been represented by attorney Elizabeth Brooke Herrington and others from the firm of Morgan, Lewis & Bockius LLP, of Chicago.
Amazon did not respond to a request for comment from The Cook County Record.