Duane Morris Privacy Class Action Review – 2024

akin to optometrist fittings, and not in connection with the purchase of luxury sunglasses. Id. at *8. The court rejected the plaintiff ’ s contentions and granted the defendant ’ s motion to dismiss under Rule 12(b)(6). First, the court explained that the plaintiff qualified as a “patient in a health care setting” under the dictionary definition of the term “patient,” and that Dior ’ s VTOT feature “facilitates the provision of a medical device that protects vision.” Id. Similarly, the court held that use of the VTOT technology constituted “health care,” which the dictionary defined as “efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals.” Id. at *9. The court reasoned that the relevant test was “not a user ’ s subjective understanding, but rather an objective application of the text of the exemption.” Id. at *8-9. The court opined that the outcome of the analysis should not change if a consumer uses the VTOT in search of primarily stylish sunglasses rather than protective ones. The plaintiff attempted to distinguish the defendant ’ s website from a “health care setting” by arguing that “[a]n artist prepping a canvas is not providing a health care service if they use a scalpel instead of an Xacto knife.” Id. at *9. The court concluded that the VTOT feature facilitated the purchase of sunglasses to wear on one ’ s face and protect one ’ s eyes, thereby performing the product ’ s intended medical function rather than an unconventional purpose. The court rejected the plaintiff ’ s attempts to analogize her case to BIPA suits against blood plasma centers, in which courts rejected application of the health care exemption. Even if the cases applied the same definitions of “health care” and “patient,” the court concluded that the removal of plasma for commercial purposes is not “health care because the purpose – at least from the plasma donors’ perspectives – was not to ‘ maintain or restore physical, mental or emotional well-being ’ ; it was to get paid . ” Id. at *11. The court therefore granted the defendant ’ s motion to dismiss. In Clark, et al. v. Microsoft Corp., 2023 U.S. Dist. LEXIS 146169 (N.D. Ill. Aug. 21, 2023), the plaintiff filed a class action alleging that the defendant violated the BIPA. The defendant filed a motion to dismiss pursuant to Rule 12(b)(6), and the court granted the motion. The plaintiff asserted that he used video- based coaching software provided by Brainshark, Inc., used facial geometry scans to provide feedback on sales pitches and violated §§ 15(a) through (d) of the BIPA through the collection, retention and disclosure of the face scans. Brainshark ’ s software interfaces with and integrates with Microsoft ’ s Azure cloud services and Azure Cognitive Services applications. The court determined that the plaintiff failed to sufficiently allege that the defendant took an active step to obtain his biometric data to establish a violation of § 15(b), and dismissed that claim. The court stated that §§ 15(a), (c), and (d) require that the defendant was “in possession of” the plaintiff ’ s biometrics. Id. at *9. The court found it plausible that the defendant was in possession of the biometric data, and therefore declined to dismissing the plaintiff ’ s claim under § 15(a). Id. However, the court ruled with respect to the § 15(c) claim that the plaintiff failed to allege an injury-in-fact and thus lacked standing to bring the claim. The court also dismissed the plaintiff ’ s § 15(d) claim because the complaint did not support the assertion that Microsoft disclosed, redisclosed, or disseminated the plaintiff ’ s data. 5. GIPA Claims Are Beginning To Follow BIPA ’ s Lead While the BIPA’s class action surge became emmeshed in the mainstream over the past few years, a similar Illinois statute is starting to follow the BIPA ’ s playbook and is increasingly becoming a major source of litigation. The Illinois legislature enacted the Genetic Information Privacy Act (GIPA) in 1998 in order to enhance privacy protections for people in Illinois by prohibiting the unauthorized disclosure and use of an individual ’ s genetic information. After two decades of the GIPA flying under the radar, the Seventh Circuit ’ s affirmation of a district court ruling under the GIPA in Bridges, et al. v. Blackstone, Inc. , 2022 WL 2643968 (S.D. Ill. July 8, 2022), aff’d , 66 F.4th 687 (7th Cir. 2023), opened the door for plaintiffs to recover significant damages under this privacy law. In Bridges , the Seventh Circuit relied on the same logic that has made the BIPA such a significant source of litigation to hold that it is “appropriate to apply the definition of ‘ aggrieved person’ used by [the BIPA] to the GIPA.” Id. Accordingly, “an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under [the GIPA] in order to qualify as an ‘ aggrieved’ person.” Id. at *3 (quoting Rosenbach, et al. v. Six Flags Entertainment Corp. , 129 N.E.3d

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