People who virtually “tried on” Ray-Ban eyeglasses using eyewear-maker Luxottica’s Try-On Application Tool could be in line for a payout of several hundred dollars each, under the terms of a recently approved $8 million settlement to end a class action brought under Illinois’ biometrics privacy law.
The lawyers who brought the class action are slated to collect nearly $3 million in fees under the deal.
Cook County Circuit Judge Michael T. Mullen approved the deal on June 7, clearing the way for the $8 million fund to be divided between the lawyers, settlement administrators and an unknown number of people who registered to receive a cut of the money, perhaps up to $1,000 each, according to court documents.
David Gerbie
| Superlawyers.com
The lawsuit was filed against Luxottica, the world’s largest maker, distributor and seller of eyewear, in 2019 by attorneys with the firm of McGuire Law P.C., of Chicago. It was brought on behalf of named plaintiff Amanda Vo.
Luxottica’s stable of name brands include Armani, Arnette, Brooks Brothers, Chanel, Bvlgari, Coach, Oakley, Polo, Prada, Ralph Lauren, Ray-Ban, Porsche, Valentino and Versace, among others. The company is considered by many to hold a virtual monopoly over the eyeglass market worldwide.
The lawsuit centers on Luxottica’s deployment of its Try-On app, which allows potential customers to virtually see how certain eyeglasses may look on their faces. According to court documents, the app works by using cameras to scan customers’ faces and then virtually applying eyeglass styles to their image.
The lawsuit particularly centers on the use of the app for customers seeking Ray-Ban sunglasses.
According to the complaint, the app improperly measured and stored users’ so-called facial geometry, which is considered a so-called unique biometric identifier. The plaintiffs assert such face scans of customers in Illinois violated the law known as the Illinois Biometric Information Privacy Act. According to the complaint, generally, Luxottica failed to first secure written consent from customers before scanning their faces in the app, and failed to provide certain written notices required by the law concerning what Luxottica may do with the scanned facial images.
The lawsuit demanded money damages of $1,000-$5,000 per violation, as allowed under the BIPA law. The exact definition of a violation under the BIPA law remains the subject of arguments in court. However, many have interpreted the law to define a violation as each time a face scan takes place. So, if one customer’s face is scanned multiple times without meeting the requirements of the BIPA law’s notice and consent provisions, the law could be read to mean each of those scans stands as a separate violation.
It is not known how many current and former Illinois residents may have used Luxottica’s Ray-Ban Try-On app.
Luxottica attempted and failed to dismiss the BIPA-related claims.
The two sides then entered mediation, meeting four times. Judge Mullen then put the case on hold in mid-2021, as Illinois appellate courts grappled with key questions concerning the reach and limits of the BIPA law.
Since 2015, thousands of BIPA-related class action lawsuits have been filed in Illinois courts, primarily in Cook County. The bulk of the lawsuits have taken aim at employers, claiming they violated the BIPA law’s notice and consent provisions in the way they required workers to scan fingerprints to verify their identity when punching the clock at work.
However, a number of other class actions have also targeted big tech companies and a host of companies that may scan customers’ faces to help them virtually sample products or access certain features online and in retail stores.
While defendants have attempted to defend themselves against the lawsuits, to date, courts have denied most defenses.
Most famously, the Illinois Supreme Court particularly rejected arguments from defendants, who have noted those bringing lawsuits under the BIPA law have never actually been harmed by any of the biometric scans. The state high court declared the technical violation of the law is enough under Illinois law to allow the potentially massive and financially ruinous class actions to continue.
However, the Illinois Supreme Court and other appellate courts are also hearing arguments on other questions, including over time limits for BIPA claims and whether financial damages should be limited in some way.
In the meantime, faced with potentially crippling damages should BIPA cases go to trial, a growing number of companies have opted to settle.
While the lawsuit against Luxottica remained paused, the two sides continued to negotiate, reaching a deal in early 2022.
Under the deal, class members had until May 31 to submit eligible claims for a cut of the fund. No court documents posted online, including Judge Mullen’s final approval order, indicated how many eligible claims may have been submitted.
However, in a motion in April, plaintiffs’ lawyers asserted eligible claims could “receive at least hundreds of dollars, and potentially over $1,000” each. Payments would be sent in the next 30-60 days.
In granting final approval, Judge Mullen also granted plaintiffs’ lawyers request for 38% of the settlement fund, or $3.04 million.
Plaintiffs have been represented by attorneys Myles McGuire, Evan M. Meyers and David L. Gerbie, of the McGuire Law firm.
Luxottica has been represented in the case by attorney David L. Weinstein, of the firm of Taft Stettinius & Hollister, of Chicago.