Thousands of people who used “virtual makeup” kiosks in Sephora stores in Illinois could be in line for a cut of a $1.25 million settlement to end a class action that accused Sephora of failing to properly obtain consent from users, , under Illinois’ biometrics privacy law, before scanning their faces to show how they might look if they used certain makeup products.
In late June, a Cook County judge is expected to consider granting final approval to a settlement in the class action lawsuit against cosmetics retailer, Sephora Brands.
Under the deal, Sephora has agreed to pay $1.25 million overall. Attorneys for the plaintiffs could receive 35% of that total, or more than $437,000, according to a motion for attorney fees filed by the lawyers on April 30.
Timothy Kingsbury
| Superlawyers.com
People who submit claims under the settlement could receive up to $500, according to settlement documents. Claims must be submitted by June 11.
The plaintiffs are represented by attorneys Evan M. Meyers, Eugene Y. Turin and Timothy P. Kingsbury, of the firm of McGuire Law P.C., of Chicago.
The lawsuit is one of dozens the McGuire firm has brought in recent years under the Illinois Biometric Information Privacy Act (BIPA.)
Enacted in 2008, supporters of the law said BIPA was designed to protect Illinois residents against the risk of having digitally collected and stored biometric data, such as fingerprints, retinal scans and facial geometry, exposed in data breaches, or in the event a company were to go out of business.
However, in recent years, groups of plaintiffs’ lawyers have used the law to file thousands of class actions against businesses of all types and sizes. The law allows for them to claim damages of $1,000-$5,000 per violation. The law has been interpreted to define individual violations as each time a biometric identifier is scanned.
For example, thousands of the lawsuits have targeted employers who require workers to use so-called biometric time clocks – or employee punch clocks that require workers to verify their identity by scanning their fingerprints, or other biometric identifier, each time they punch in or out of a work shift.
Such employers have been targeted, not for exposing their workers’ biometric data, but rather for allegedly failing to collect proper written consent from workers, or providing specific notices concerning how and why the data is collected, and how it might be used, shared, and ultimately destroyed.
Such lawsuits were given a big boost in 2019, when the Illinois Supreme Court ruled plaintiffs don’t need to show how they were actually harmed by the biometric scans before bringing massive class action lawsuits, potentially worth millions or even billions of dollars in damages, should the case go to trial.
To avoid such potentially crippling payouts, many employers and other businesses have opted to settle, and pay hundreds of thousands or millions of dollars instead. To this point, the settlements have typically included payouts of hundreds of thousands of dollars to plaintiffs’ lawyers for each lawsuit.
The McGuire lawyers filed suit against the France-based cosmetics giant in 2018, on behalf of people who used the so-called virtual makeup kiosks, made by Modiface. The devices worked by scanning customers’ faces, and then allowing them to virtually experiment with various cosmetic products in the store.
The lawsuit asserted Sephora failed to abide by the technical notice and consent provisions in the Illinois BIPA law, before allowing customers to scan their faces at the virtual makeup kiosks.
The lawsuit initially also included Modiface. However, a Cook County judge dismissed Modiface from the lawsuit in May 2020.
Sephora and the plaintiffs reached the settlement agreement in December 2020. The deal would allow anyone who interacted with a virtual makeup kiosk in a Sephora store since July 2018 to file a claim for a share of the settlement.
The settlement does not guarantee a certain amount of payment to those submitting claims. However, settlement documents say they could receive up to $500 each.
Cook County Judge Anna Loftus granted preliminary approval to the settlement on March 12, 2021.
As of April 30, a motion filed by plaintiffs’ lawyers indicated settlement administrators had sent out more than 10,500 notices to potential claimants, and “hundreds” of claims had been filed by potential class members.
Sephora has been represented by attorneys with the firm of Barack Ferrazzano & Nagel, of Chicago.