Some mostly dead and potentially big money class action lawsuits against online eyewear sellers under Illinois' biometrics privacy law could quickly roar back to life, after an Illinois appeals court said some federal judges had misinterpreted the law to allow eyeglass sellers to escape.
On August 30, a three-justice panel of the Illinois First District Appellate Court in Chicago ruled in favor of plaintiffs seeking to use a class action lawsuit to extract a potential big payout from Gunnar Optiks.
Gunnar is a Carlsbad, California-based maker and seller of eyewear, specializing in so-called gaming glasses and other eyeglass products touted to reduce eye strain caused by looking at electronic screens.
Illinois First District Appellate Justice Mary Mikva
| Illinoiscourts.gov
The lawsuit was filed in 2022 in Cook County Circuit Court by attorneys with the firms of Milberg Coleman Bryson Phillips Grossman PLLC, of Chicago, and Peiffer Wolf Carr Kane Conway & Wise LLP, of St. Louis.
The lawsuit was filed on behalf of named plaintiff Macaire Marino, as well as potentially hundreds or thousands of additional plaintiffs.
The lawsuit targeted Gunnar over its use of a so-called "virtual try-on" system that allows customers to remotely see how the glasses might look on their face without visiting a store or clinic, or actually putting the glasses on.
According to court documents, the tool scans a user's face, creating a template upon which the tech can use augmented reality to virtually replicate how a particular pair of glasses may look on that particular person.
The lawsuit specifically asserts the face scans violated the Illinois Biometric Information Privacy Act (BIPA) by scanning and allegedly storing customers' so-called biometric identifiers without their knowledge or consent.
The lawsuit against Gunnar was one of several lodged in recent years against online retailers using such virtual try-on tools to sell eyewear and cosmetics, among others.
Those suits, however, were just a small stream amid a torrent of thousands of BIPA class actions that have flooded into Illinois courts in the past decade, since trial lawyers first discovered the potent nature of the law's notice and consent provisions.
The lawsuits have primarily targeted employers, mostly over the use of so-called "biometric timeclocks," which require workers to scan a fingerprint or other "biometric identifier" when punching in and out of work shifts.
However, a large number of class actions have also targeted tech companies and retailers, for allegedly failing to comply with the BIPA law's notice and consent provisions when dealing with customers.
Facebook, for instance, famously agreed to pay $650 million to settle a class action lawsuit, claiming it improperly scanned the faces of people appearing in photos on its platform.
The power in the law comes from its damages provision. The law allows plaintiffs to demand damages of $1,000-$5,000 per violation.
The potential damage awards have received big boosts from the Illinois Supreme Court. To begin, in 2019, the state high court declared plaintiffs do not need to prove they were actually harmed by the alleged improper data collections before filing suit.
The high court further expanded the potential reach of the law and heft of the payouts for lawsuits brought through it, finding that individual violations of the law should be defined as each time a company scans someone's biometrics, not just the first time. And the court further declared that the damages should include all biometric scans dating back to five years before a lawsuit is filed.
When multiplied across potentially hundreds of customers or more, such potential damages could quickly climb into the many millions of dollars, while generating potentially big paydays for lawyers.
According to a 2023 report, an industry group said trial lawyers bringing BIPA cases had collectively raked in hundreds of millions of dollars in attorney fees from cases in which no plaintiffs have yet alleged they suffered any real harm from the biometric scans.
For years, the state's Democrat-dominated General Assembly had turned a mostly deaf ear to pleas from business groups warning of long-term harm to the state's economy should trial lawyers be allowed to continue hammering businesses with potentially catastrophic financial damages in lawsuits alleging no one was actually harmed.
Observers have noted courts will need to next sort out competing claims over what that reform actually means, particularly if the changes should be applied to BIPA lawsuits filed before Gov. JB Pritzker signed the law this summer.
In the meantime, however, some businesses managed to score a few wins to limit their exposure under the BIPA law.
Notably, some federal judges have ruled that eyewear sellers can't be sued over their virtual try-on tool face scans. Those judges ruled that the sellers qualify for an exemption under the BIPA law for companies providing health care services because they sell prescription eyeglasses and sunglasses.
Other sellers who have benefited from such rulings include FramesDirect and Christian Dior.
Other sellers, including Amazon and Gunnar, could not similarly win the seeming quick exits from court, as judges ruled non-prescription eyeglasses shouldn't qualify for a health care exemption.
After Cook County Circuit Judge Anna Loftus rejected Gunnar's attempt to use the health care exemption to end the lawsuit against them, the eyewear seller appealed to the First District Appellate Court, asking the court to decide the question.
In the ruling, the appeals justices sided with the plaintiffs.
"Applying our understanding of the health care exclusion to the case before us, we find that an individual who uses software to try on nonprescription sunglasses is not a patient in a health care setting because they are not presently awaiting or receiving medical care," Mikva wrote. "An individual who is trying on nonprescription sunglasses - unconnected to any specific medical advice, prescription, or need - is simply not within this statutory exclusion."
Mikva and her colleagues further said it doesn't matter to them that at least three federal judges have reached different conclusions on the question.
Those judges, Mikva said, chose to apply a definition of "patient" using federal law and regulations that Illinois courts have rejected. And they rejected the federal judges' reasoning that the exclusion should also apply because federal law designates nonprescription sunglasses and other eyewear as "Class 1 medical devices," which are generally regulated by the Food and Drug Administration.
"Moreover, even if we agreed that the defendant in this case was offering a service that could be considered health care, the person using the software was not a 'patient' under the dictionary definition that we think is clearly what the legislature had in mind," Mikva wrote.
The justices formally declared that the health care exclusion in the BIPA law should not apply to customers using virtual try-on tools for non-prescription eyewear.
The case against Gunnar remains pending in Cook County Circuit Court.
Gunnar is represented in the case by attorney Richard J. Miller, of Miller Law Firm P.C., of Schaumburg.
Neither Miller nor Gunnar replied to requests from The Record for comment on the decision. It is not known if Gunnar may seek to appeal to the Illinois Supreme Court.
Plaintiffs are represented by attorneys Gary M. Klinger, of the Milberg Coleman firm; and Brandon M. Wise and Domenica M. Russo, of the Peiffer Wolf firm.