A federal judge has shelved Christian Dior’s attempt to force plaintiffs in a failed Illinois biometrics lawsuit to pay the fashion designer’s legal defense bills.
The lawsuit in question started in August 2022, when named plaintiff Delma Warmack-Stillwell accused Dior of violating the Biometric Information Privacy Act. 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, sought to represent a class. In a complaint similar to other BIPA litigation, the root issues was Dior’s online virtual try-on software intended for customers shopping for eyewear.
In the complaint, the plaintiffs accused Dior of using the 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 suit came after other federal courts had tossed or were in the process of dismissing similar proceedings, finding eyeglass sellers were shielded by a BIPA provision exempting data “captured from a patient in a health care setting.” Dior defeated the action on those grounds, winning dismissal from U.S. District Judge Elaine Bucklo in February.
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.
On July 27, Bucklo denied Dior’s request. She first noted Warmack-Stillwell challenged the dismissal before the U.S. Seventh Circuit Court of Appeals, which has yet to act. But the judge further noted she need not answer the larger question of whether any defendant can pursue legal fees under BIPA litigation, because Dior's case doesn't hold up to such a demand.
“All agree that, because BIPA says the court ‘may’ award attorneys’ fees, that award is within the trial court’s discretion,” Bucklo wrote. “Warmack-Stillwell contends that Dior may not recover attorneys’ fees here because it has failed to make the threshold showing that she acted in bad faith.”
Dior argued “bad faith” is only one requirement that may be considered. In its initial motion for fees, Dior contended plaintiffs should’ve known the claim was doomed based on other rulings in similar cases, but still chose to proceed with hope Dior would simply settle anyway.
Bucklo compared BIPA to the Illinois Consumer Fraud and Deceptive Business Practices Act and said neither law indicates the circumstances under which a legal fee award is proper.
“Importantly, the only way the legislature provided to enforce compliance with BIPA is through the statute’s private right of action,” Bucklo wrote. “Exposing plaintiffs bringing BIPA suits in good faith, even if ultimately unsuccessful, to attorneys’ fees would unduly chill the sole enforcement mechanism for a law the legislature clearly intended to protect critical privacy interests and would defy BIPA’s remedial purpose.”
As such, Bucklo said, to the extent BIPA allows any fee recovery, a defendant must show a plaintiff’s bad faith, and Dior failed to meet that burden.
“Though at the time Warmack-Stillwell filed her complaint, one court had found that virtual try-on tools used for prescription glasses as well as nonprescription sunglasses fell under BIPA’s health care exemption, and another court agreed shortly after she filed suit, those decisions are not binding,” Bucklo wrote. “Neither the Seventh Circuit nor the Illinois Supreme Court has expressed guidance on the matter, so it was not unreasonable for plaintiff to pursue her case.”
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.