![]() Straite represents plaintiffs in virtual try-on lawsuits against companies but said he couldn’t comment on the pending litigation. “But you don’t need a biometric statute to bring unfair competition or invasion of privacy claims.” “Companies are playing with fire-they have this false sense of security that if they’re not in Illinois, they’re fine,” Straite said. While Illinois’ biometric privacy law has been a vehicle for many plaintiffs to bring lawsuits related to virtual try-on technology, it’s not a prerequisite for litigation, said David Straite, a partner at DiCello Levitt Gutzler in New York who primarily represents consumers. There are currently no pending lawsuits in federal court against Perfect Corp., which provides virtual try-on capabilities to companies including Meta Platforms Inc., Sally Hansen, and Clinique, according to a Bloomberg Law docket analysis. While most federal lawsuits have been filed in Illinois, several are pending in the Southern District of New York and the Northern District of California. That may be because plaintiffs often allege violations under Illinois’ Biometric Information Privacy Act by saying companies are unlawfully collecting “scans of face geometry,” a term used in the statute’s definition of biometric identifier, he said.Ĭourts are currently grappling with whether applications of such technology violate BIPA, which safeguards Illinois residents’ biometric privacy rights and requires companies to seek written consent before collecting data such as iris and fingerprint scans. Lawsuits against companies that offer virtual try-on technology are largely focused on eyewear and makeup retailers despite the fact that some companies, including Inc., now offer the technology for clothing and shoe try-on, Oberly said. Warby Parker’s tool looks at “multiple data points on the user’s face” while users interact with it, but it doesn’t store any face scan data or share it with any third parties, according to the company’s App Store description. Attorneys representing Estée Lauder and LVMH didn’t respond to requests for comment about the pending litigation. ![]() ![]() ![]() Sunski, L’Oréal, and Estée Lauder didn’t respond to requests for comment about their use of virtual try-on technology. “These cases are still being filed but they’re being fought aggressively by defendants.” “In terms of figuring out how these cases will play out, there’s no great answer,” Oberly said. That “explosion” in try-on technology coincided with an upswing in related litigation in 20, said Oberly, who has defended companies in such lawsuits. Some retailers offered virtual try-on tools before the Covid-19 pandemic, but widespread adoption took off as stores shuttered and people stayed at home in the spring of 2020, said David Oberly, a senior associate at Squire Patton Boggs in Cincinnati. Other companies that offer the technology include Warby Parker, Sunski, and L’Oréal. Biometric privacy lawsuits against retailers that allow online shoppers to virtually try on glasses and makeup are posing novel legal issues and casting uncertainty on the technology’s viability in the long run.Ĭompanies must take heed of the legal, regulatory, and reputational risks associated with virtual try-on technology as privacy litigation climbs, attorneys warn.Ĭases are already pending against cosmetics conglomerate Estée Lauder over its virtual try-on tool for makeup and against LVMH Moët Hennessy Louis Vuitton over its virtual try-on tool for sunglasses and frames.
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