Cheryl Doyle v. Louis Vuitton North America, Inc.

Background

Paula Theriot and Cheryl Doyle brought claims under Sections 15(a) and 15(b) of the Illinois Biometric Information Privacy Act on behalf of themselves and a proposed group of similarly situated people. Louis Vuitton North America, Inc. moved to dismiss the amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Louis Vuitton’s website offered a Virtual Try-On feature for eyewear. The feature could activate a device’s camera or allow a user to upload a facial photograph. The complaint alleged that technology created by FittingBox, which was not a defendant, extracted and processed facial geometry and that Louis Vuitton collected detailed biometric information, including complete facial scans.

The complaint alleged that Louis Vuitton did not tell users that the feature collected or stored facial geometry, did not obtain their consent, and did not publish a written policy describing when biometric information would be retained and destroyed. Doyle used the real-time feature once between November and December 2021. Theriot used both versions of the feature four times during that period.

Section 15(a) claim

Section 15(a) requires a private entity possessing biometric information to create and publicly provide a written retention schedule and destruction guidelines. Louis Vuitton argued that the plaintiffs lacked standing, meaning a legally sufficient injury allowing them to sue in federal court.

The court granted the motion to dismiss the Section 15(a) claim. It held that the complaint challenged only Louis Vuitton’s alleged failure to create and publish a retention policy, not the unlawful retention of the plaintiffs’ biometric information after the original collection purpose ended. Relying on the distinction drawn in the cited authorities, the court concluded that the alleged failure to publish a policy harmed the public generally rather than causing a sufficiently personal and particularized injury to these plaintiffs.

The court also rejected the plaintiffs’ arguments that the risk of compromise or illicit use, and their loss of control over their biometric information, supplied the required injury for Section 15(a). The court explained that those allegations either were tied to the failure to create a policy or were relevant to the informed-consent requirements of Section 15(b). The Section 15(a) claim was dismissed. The opinion does not add a with-prejudice or without-prejudice designation.

Section 15(b) claim

Section 15(b) generally prohibits a private entity from collecting biometric information unless it first gives written notice of the collection, its purpose, and its duration, and receives a written release. The court denied Louis Vuitton’s motion to dismiss this claim under Rule 12(b)(6), which tests whether a complaint states a legally plausible claim.

The court held that the allegations were sufficient to claim that Louis Vuitton actively collected users’ facial scans through its Virtual Try-On tool without the required disclosures or written consent. The fact that FittingBox created the technology, and might have extracted the facial scans, did not defeat the claim against Louis Vuitton. The precise roles of Louis Vuitton and FittingBox, and the precise data each received, were factual questions for a later stage.

The court also declined to dismiss the Section 15(b) claim on the ground that the events did not occur primarily and substantially in Illinois. The complaint alleged that the plaintiffs were Illinois residents, used the tool while in Illinois, and did not receive the required disclosures or provide the required consent when they accessed the website there. The court found no basis at that stage to conclude that the relevant events occurred primarily elsewhere.

Disposition

The court granted Louis Vuitton’s motion to dismiss the Section 15(a) claim and denied its motion to dismiss the Section 15(b) claim. The ruling addressed whether the claims could proceed at the pleading stage; it did not determine whether Louis Vuitton was ultimately liable. Judge Denise Cote signed the opinion and order on December 5, 2022.