Fashion designer Christian Dior, which achieved a rare legal feat in beating back a class action lawsuit under Illinois’ biometrics privacy law, is asking a federal court to order the plaintiffs to pay some of its legal bills.
Dior says courts should establish the threat of paying defendants’ legal bills to send a message to plaintiffs and their lawyers, seeking to use the threat of “astronomical damages” allowed under the law to “extract” quick settlements, at no risk to plaintiffs, who have been allowed to simply walk away even after forcing their targets to pay big money simply to be left alone.
Lawsuits brought under the Illinois Biometric Information Privacy Act, brought by the thousands in the past eight years, now crown courtrooms in Chicago and elsewhere, because lawyers are seeking big paydays, using the threat of damages that the Illinois Supreme Court itself has described as “annihilative” to businesses, Dior’s attorneys wrote.
“The plaintiffs’ bar leverages these risks into extracting massive settlements, even where no finding of liability is likely,” Dior wrote, in a memorandum filed in May. “That appears to be precisely what Plaintiff was counting on here – that she could pursue a legal theory expressly rejected by two Illinois federal judges, and implicitly rejected by a third, long enough to extract a settlement from Dior.
“To deter similar abuses of BIPA, the Court should award attorneys’ fees to a defendant forced to litigate a repeatedly-rejected theory of liability.”
Dior became a recent target of a class action under the BIPA law in August 2022, when attorneys from the firms of DiCello Levitt, of Chicago; Hausfeld LLP, of Washington, D.C., and New York; and Don Bivens PLLC, of Scottsdale, Arizona, filed suit.
The complaint was filed on behalf of named plaintiff Delma Warmack-Stillwell and a potentially large number of other Illinoisans who had used Dior’s online virtual try-on software when shopping for new eyeglasses.
In the complaint, the plaintiffs accused Dior of using their online try-on tool to scan users’ faces without first securing written consent, or without providing notices to them concerning how the company would use, store, share or ultimately destroy the scanned images of their faces, known under the BIPA law as biometric identifiers.
The lawsuit was similar to others filed against other sellers of eyeglasses, cosmetics and other accessories, who also deployed similar virtual try-on tools through their websites or apps.
However, the lawsuit against Dior also came after other federal courts had tossed or were in the process of dismissing some of those other lawsuits, finding eyeglass sellers were shielded from such lawsuits by the BIPA law’s provisions exempting biometric data “captured from a patient in a health care setting.”
However, unlike all other corporate defendants who have managed to defeat BIPA lawsuits to this point, Dior did not choose to walk away.
Instead, in May, Dior filed a motion asking Bucklo to order the plaintiffs to pay $152,000 to Dior to cover its legal fees paid to defeat the class action, becoming the first victorious defendant to make such a request.
In the motion, Dior reasons that it should be treated as the “prevailing party” in the action, which, it says, means the other side can be made to pay its legal bills, under the BIPA law and prior Illinois Supreme Court decisions.
Dior further argued the plaintiffs should pay in this instance because they should have known their claim was doomed, based on the other court rulings in similar cases, but instead went ahead with the lawsuit in the hope Dior would simply settle anyway.
In response, the plaintiffs’ lawyers, led by attorney Nada Djordjevic, of the DiCello Levitt firm, accused Dior’s lawyers of twisting the BIPA statute. They said the BIPA law actually only permits plaintiffs to collect legal fees, if they are the prevailing party, because the law adds the words “for each violation.”
Further, in this instance, the plaintiffs argued, the plaintiffs believed their case was different from the others, because they were targeting Dior’s use of the virtual try-on tool for non-prescription eyeglasses, which they believed should have allowed the lawsuit to continue.
The plaintiffs’ lawyers insisted they did not bring their action against Dior in “bad faith,” Dior’s “protestations that Plaintiff sought to ‘extract a settlement’ … notwithstanding.”
In a response filed on July 18, Dior urged Judge Bucklo to reject the plaintiffs’ claims that the law should allow plaintiffs to file costly, and potentially ruinous, lawsuits against companies, with no possible risk to them.
They argued the phrase “for each violation” should not be interpreted to foreclose defendants who win from securing recompense from plaintiffs who may bring meritless lawsuits.
Dior’s lawyers noted Illinois courts, including the Illinois Supreme Court, have repeatedly ruled that “prevailing parties” eligible to recover attorney fees from the other side should include defendants who prevail, not just plaintiffs.
Judge Bucklo has not yet ruled on Dior’s motion.
Dior is represented by attorneys Robert E. Shapiro, Maile H. Solis, Connor T. Gants and David B. Lurie, of the firm of Barack Ferrazzano Kirschbaum & Nagelberg, of Chicago.