Kukovec v. The Estee Lauder Companies, Inc.
Filing
40
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 11/7/2022: The motion to dismiss, 30 , is granted in part and denied in part. [For further detail see attached order.] Defendant shall answer the complaint by 11/28/22. The parties shall file a joint status report with a proposal for a discovery schedule by 12/5/22. Notices mailed. (psm, )
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MORGAN KUKOVEC, individually and
on behalf of all others similarly
situated,
Plaintiff,
No. 22 CV 1988
Judge Manish S. Shah
v.
THE ESTÉE LAUDER COMPANIES, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Morgan Kukovec used a makeup try-on tool on the website of Too
Faced Cosmetics, which is owned by Estée Lauder. She says the tool collected her
facial-geometry data in violation of Illinois’s Biometric Information Privacy Act and
she filed this lawsuit. Estée Lauder moves to dismiss the complaint based on lack of
personal jurisdiction, the presence of an arbitration agreement on its website, the
failure to state a claim on the merits, and the partial lack of Article III standing. The
motion is granted in part and denied in part.
I.
Legal Standards
A defendant may move to dismiss an action for lack of subject-matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of proving that
subject-matter jurisdiction is proper, so she must allege facts sufficient to plausibly
suggest that it exists. See Silha v. ACT, Inc., 807 F.3d 169, 173–74 (7th Cir. 2015). A
court lacks subject-matter jurisdiction if a plaintiff doesn’t have standing. See Taylor
v. McCament, 875 F.3d 849, 853 (7th Cir. 2017). To establish standing, “a plaintiff
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must show (1) [she] has suffered an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be redressed by a favorable
decision.” Silha, 807 F.3d at 173 (quoting Friends of the Earth, Inc. v. Laidlaw Env’t
Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)) (quotations omitted).
Federal Rule of Civil Procedure 12(b)(2) governs dismissals based on lack of
personal jurisdiction. A plaintiff need not include facts alleging personal jurisdiction
in the complaint, but once a defendant moves to dismiss for lack of personal
jurisdiction, the plaintiff bears the burden of establishing it. See Curry v. Revolution
Labs., LLC, 949 F.3d 385, 392 (7th Cir. 2020). At the motion-to-dismiss stage, when
a court relies only on the party’s pleadings to decide personal jurisdiction, and doesn’t
hold an evidentiary hearing, the plaintiff only needs to make a prima facie case for
personal jurisdiction to proceed. uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 423
(7th Cir. 2010); Purdue Rsch. Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782
(7th Cir. 2003). Even though courts resolve all factual disputes in the plaintiff’s favor,
courts accept as true all unrefuted facts in the defendant’s declarations or affidavits.
GCIU-Employer Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, n.1 (7th Cir. 2009).
Accordingly, when a defendant challenges a fact alleged in the plaintiff’s complaint
with a sworn statement, the plaintiff has an obligation to go beyond the pleadings
and submit affirmative evidence supporting the exercise of jurisdiction. Purdue
Research Found., 338 F.3d at 783.
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Defendant moves to enforce its forum-selection clause (an agreement to
arbitrate) under Federal Rule of Civil Procedure 12(b)(3). That rule governs
dismissals based on improper venue. Whether a venue is “improper”, though,
“depends exclusively on whether the court in which the case was brought satisfies the
requirements of federal venue laws,” and has nothing to do with contractual
forum-selection clauses. Atlantic Marine Const. Co., Inc. v. U.S. Dist. Ct., 571 U.S. 49,
55 (2013). Defendant’s 12(b)(3) motion is more appropriately considered as a motion
to enforce the arbitration clause, perhaps through the doctrine of forum non
conveniens. See Dr. Robert L. Meinders, D.C., Ltd. v. United Healthcare Servs., Inc.,
7 F.4th 555, 560 (7th Cir. 2021); see also Brickstructures, Inc. v. Coaster Dynamix,
Inc., 952 F.3d 887, 890 (7th Cir. 2020) (substance of motion, not its label, is what
counts).
The party opposing arbitration bears the burden of identifying a triable issue
of fact about the existence of the arbitration agreement. Tinder v. Pinkerton Sec., 305
F.3d 728, 735 (7th Cir. 2002). As in summary judgment, a party cannot avoid
compelled arbitration by generally denying facts about an arbitration agreement but
must instead “identify specific evidence in the record demonstrating a material
factual dispute for trial.” Id.
A complaint must contain “a short and plain statement” showing that the
complaining party is entitled to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556
U.S. 662, 677–78 (2009). To survive a Rule 12(b)(6) motion to dismiss, plaintiff must
allege facts that “raise a right to relief above the speculative level.” Bell Atlantic Corp.
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v. Twombly, 550 U.S. 544, 555 (2007). At this stage, I accept all factual allegations in
the complaint as true and draw all reasonable inferences in plaintiff’s favor,
disregarding legal conclusions or “threadbare recitals” supported by only “conclusory
statements.” See Iqbal, 556 U.S. at 678.
II.
Facts
Too Faced Cosmetics’s try-on tool allows online shoppers to see how a product
looks on them. [1] ¶¶ 19–21. 1 A shopper selects a product and a “Try It On” button
appears beneath a picture of the product. [1] ¶ 19. When a shopper clicks on the
button, a pop-up box appears. [1] ¶ 20. It says, “TRY IT NOW,” “Your image will be
used to provide you with the virtual try-on experience and to help with product
selection. For information about our privacy practices, please read our Privacy
Policy.” [1] ¶¶ 20 (accompanying image). Beneath the text but still inside the pop-up
box, there are two buttons. [1] ¶¶ 20 (accompanying image). One for “LIVE CAMERA”
and the other for “UPLOAD A PHOTO.” [1] ¶¶ 20 (accompanying image).
Bracketed numbers refer to entries on the district court docket. Page numbers are taken
from the CM/ECF header placed at the top of filings.
1
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Clicking the “LIVE CAMERA” button activates the user’s computer camera
automatically. [1] ¶ 21. The user can then choose one of two display options:
overlaying the product on the user’s entire face or overlaying it on half of the face for
a split-screen, before-and-after effect. [1] ¶ 21. From there, the user can download the
image or post it to social media. [1] ¶ 22. Plaintiff, an Illinois resident, used the tool
in Illinois to try on various foundations but didn’t end up buying anything. [1] ¶¶ 31–
34.
The Biometric Information Privacy Act regulates private entities’ possession
and use of biometrics. 740 ILCS 14. Facial-geometry scans are a type of biometric
identifier. 740 ILCS 14/10. The act requires entities that possess biometric data to
develop a publicly available written policy establishing a retention schedule and
guidelines for permanently destroying biometric data. 740 ILCS 14/15(a). It also bars
private entities from collecting or capturing a person’s biometric data unless the
entity tells the subject that the data is being collected, tells the subject the purpose
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of collection and how long the data is being stored, and receives written consent from
the subject. 740 ILCS 14/15(b).
Plaintiff alleges that the virtual try-on tool captures users’ facial geometry and
does so without telling the user how that data is collected, used, or retained, in
violation of Section 15(b) of the act. [1] ¶¶ 23–24, 27. What’s more, defendant doesn’t
make publicly available a written policy establishing a retention schedule and
guidelines for permanently destroying consumers’ biometric data, perhaps because
(according to plaintiff) defendant hasn’t developed such a written policy in the first
place, in violation of Section 15(a) of the act. [1] ¶¶ 28–29. Plaintiff wants to represent
a class of people who used the try-on tool not just on the Too Faced website, but also
on four other websites associated with Estée Lauder brands. [1] ¶ 41.
Defendant removed the case to federal court, asserting diversity jurisdiction
and jurisdiction under the Class Action Fairness Act. [1] at 2–5. Defendant now
moves to dismiss on four grounds: lack of personal jurisdiction under Federal Rule of
Civil Procedure 12(b)(1), improper venue under Rule 12(b)(3) (though really a motion
to enforce an arbitration clause), failure to state a claim under Rule 12(b)(6), and lack
of standing under Rule 12(b)(1) as to the websites plaintiff didn’t use. [31].
III.
Analysis
A.
Personal Jurisdiction
With exceptions not relevant here, personal jurisdiction is governed by the law
of the forum state. Fed. R. Civ. P. 4(k)(1). Illinois’s long-arm jurisdiction statute
permits the exercise of personal jurisdiction to the full extent allowed by federal due
process, so the state statutory and federal constitutional inquiries merge. Tamburo
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v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010). Personal jurisdiction comes in the form
of general or specific jurisdiction. Ford Motor Co. v. Montana Eighth Judicial Dist.
Ct., 141 S. Ct. 1017, 1024 (2021) (citing Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U. S. 915, 919 (2011)). A court has general jurisdiction only over a
defendant who has “continuous and systematic” contacts with the forum state,
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984), and so is
“essentially at home” there, Ford Motor Co., 141 S. Ct. at 1024. Usually this means
that the defendant is incorporated in or has its principal place of business in the
forum state. See Daimler AG v. Bauman, 571 U.S. 117, 139 (2014). Plaintiff doesn’t
argue that Estée Lauder is subject to general jurisdiction in Illinois, but instead that
the company is subject to specific jurisdiction for its suit-related contacts with the
state. [35] at 2–4.
Specific jurisdiction exists when (1) the defendant has purposefully directed its
activities at the forum state or purposefully availed itself of the privilege of
conducting business in that state, and (2) the alleged injury “arise[s] out of or relate[s]
to the defendant’s contacts” with the forum. See Ford Motor Co., 141 S. Ct. at 1024–
25 (quoting Bristol-Myers Squibb Co. v. Superior Ct., 582 U.S. ----, ----, 137 S. Ct. 1773,
1780 (2017)); Tamburo, 601 F.3d at 702 (citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 472 (1985)). In other words, when the defendant’s suit-related conduct
“create[s] a substantial connection with the forum state.” Walden v. Fiore, 571 U.S.
277, 284 (2014). The exercise of specific jurisdiction must also “comport with
traditional notions of fair play and substantial justice as required by the Fourteenth
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Amendment’s Due Process Clause.” Tamburo, 601 F.3d at 702 (citing Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)).
Defendant argues that there’s no specific jurisdiction here because the try-on
tool is “geography neutral.” [31] at 13. It does not target Illinois customers and it
operates the same way, regardless of where a customer accesses it. [31] at 13. Plaintiff
doesn’t dispute this, nor does she argue that the virtual try-on tool by itself would
necessarily establish personal jurisdiction. (It wouldn’t—a defendant can’t be “haled
into court simply because [it] owns or operates a website that is accessible in the
forum state, even if that site is interactive.” Advanced Tactical Ordnance Sys., LLC
v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th Cir. 2014) (quotations and
citation omitted).) 2
Plaintiff instead argues that Estée Lauder purposefully avails itself of the state
by selling cosmetics in Illinois and employing people there. [35] at 2. It also recruits
Illinois-based employees to work as makeup artists, counter managers, sales
associates, beauty advisors, and retail managers, among other jobs. [35-1]. Given all
that, plaintiff characterizes defendant’s forum-related activities as “the sale of
cosmetics.” [35] at 3. The Virtual Try-On tool’s “only purpose” is to sell and market
defendant’s products, so the alleged BIPA violations—all of which stem from the
Defendant also argues that it’s not subject to jurisdiction in Illinois because the tool isn’t
hosted on and doesn’t run on an Estée Lauder server or a server that Estée Lauder controls.
[31] at 14. But Estée Lauder “itself set the system up this way,” uBid, Inc., 623 F.3d at 430,
and the tool appears on Estée Lauder’s site. If the try-on tool relates to defendant’s contacts
with Illinois, the fact that the tool is hosted on a server somewhere else wouldn’t affect the
personal-jurisdiction analysis.
2
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tool—are necessarily connected to defendant’s purposeful availment of the Illinois
makeup market, plaintiff says. [35] at 3.
Defendant responds that whether it sells cosmetics in Illinois, has employees
there, or recruits there is irrelevant. [37] at 8. To establish specific jurisdiction, the
defendant’s “suit-related conduct must create a substantial connection” with the
forum state, and none of the Illinois conduct plaintiff points to is related to this suit.
[37] at 8 (quoting Advanced Tactical Ordnance Sys., LLC, 751 F.3d at 801).
Defendant’s objection to jurisdiction is based on what it sees as a mismatch
between the misconduct (implementation of the cosmetics try-on tool) and defendant’s
forum contacts (selling cosmetics). But that is an overly narrow reading of Ford’s
“arise out of or relate to” standard. 141 S. Ct. at 1026. The try-on tool is part of Estée
Lauder’s cosmetics marketing and sales strategy. That’s why, as plaintiff notes, a
customer who pulls up the try-on tool is also presented with “add to cart,” “add to
bag,” and “send as a gift” buttons. [35] at 3 (citing [1-1] ¶¶ 19–25 (accompanying
screenshots)).
Finding personal jurisdiction here doesn’t stray from the holdings in Advanced
Tactical and be2 LLC & be2 Holding v. Ivanov, 642 F.3d 555 (7th Cir. 2011). Those
cases held that the operation of an interactive website by itself was not enough to
confer specific jurisdiction in any state where the website could be accessed. See be2
LLC, 642 F.3d at 558–59; Advanced Tactical, 751 F.3d at 803 (“The interactivity of a
website is…a poor proxy for adequate in-state contacts.”). The key difference here is
that defendant was using its website (and the virtual try-on tool that appears on it)
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in order to purposefully avail itself of the Illinois cosmetics market. Nor is plaintiff’s
theory so broad as to eliminate the distinction between general and specific
jurisdiction. Defendant’s suit-related conduct—its alleged capture of facial geometry
through its website—relates to its sale of cosmetics and it purposefully avails itself
of Illinois to sell cosmetics; there is a substantial connection (marketing) between the
conduct and the forum. Defendant is therefore subject to jurisdiction in Illinois for its
use of the try-on tool.
B.
Arbitration
Defendant next argues that plaintiff’s claims are subject to arbitration. [31] at
15–17. To enforce an arbitration clause, I must decide that 1) there is an agreement
to arbitrate, 2) the dispute at issue is within the scope of that agreement, and 3) a
party refuses to arbitrate. Druco Rests., Inc. v. Steak N Shake Enters., Inc., 765 F.3d
776, 781 (7th Cir. 2014). Under the Federal Arbitration Act, an arbitration agreement
must be enforced if the agreement is valid and the claims in the lawsuit are within
its scope. 9 U.S.C. § 4; see also Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1412
(2019). State contract law governs decisions on the validity and scope of arbitration
agreements. Gupta v. Morgan Stanley Smith Barney, LLC, 934 F.3d 705, 710–11 (7th
Cir. 2019).
Plaintiff doesn’t contest that the terms and conditions contain an arbitration
agreement. 3 The only issue is whether she agreed to be bound by those terms and
The arbitration provision provides, “ANY DISPUTE RELATING IN ANY WAY TO YOUR
USE OF THE SITE OR THESE TERMS AND CONDITIONS…SHALL BE SUBMITTED TO
CONFIDENTIAL BINDING ARBITRATION IN NEW YORK AND YOU AGREE TO
3
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conditions in the first place. “Formation of a contract requires mutual assent,” and
Illinois courts analyze assent using an objective standard. Sgouros v. TransUnion
Corp., 817 F.3d 1029, 1034 (7th Cir. 2016). 4 In the online context, the formation
analysis comprises two questions: “whether the web pages presented to the consumer
adequately communicate[d] all the terms and conditions of the agreement, and
whether the circumstances support[ed] the assumption that the purchaser receive[d]
reasonable notice of those terms,” either via actual knowledge or constructive
knowledge. See id. Neither party claims plaintiff had actual knowledge of the
agreement, so only constructive knowledge is at issue.
The constructive-knowledge inquiry hinges in part on whether the terms and
conditions were presented in clickwrap or browsewrap form. See Sgouros v.
TransUnion Corp., 2015 WL 507584, at *4–6 (N.D. Ill. Feb. 5, 2015), aff’d, 817 F.2d
1029 (7th Cir. 2016). Clickwrap agreements require a customer to affirmatively
indicate assent by clicking or checking a box. See id.; Van Tassell v. United Mktg.
Grp., LLC, 795 F. Supp. 2d 770, 790–91 (N.D. Ill. 2011). In browsewrap agreements,
though, simply continuing to use the website is taken as assent, albeit passive, to the
SUBMIT YOURSELF TO THE JURISDICTION AND PROCEEDINGS THEREOF. YOU
AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL
CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED
CLASS OR REPRESENTATIVE PROCEEDING.” [37-2] at 5–6.
Defendant says the contract-formation question is governed by New York law because the
terms and conditions contain a New York choice-of-law provision, but notes that the result
would be the same under New York or Illinois law because the two are “consistent on all
material matters concerning contract formation.” [37] at n.7 (quoting Behrens v. JPMorgan
Chase Bank N.A., 2019 WL 1437019, at n.14 (S.D.N.Y. Mar. 31, 2019)). Given that, I do not
conduct a choice-of-law analysis, and as a federal court sitting in diversity jurisdiction apply
the law of the forum state (Illinois). See Thomas v. Guardsmark, Inc., 381 F.3d 701, 705 (7th
Cir. 2004).
4
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site’s terms and conditions. See Sgouros, 2015 WL 507584, at *4–6; Van Tassell, 795
F. Supp. 2d at 790. Courts generally find assent in cases with clickwrap agreements
but conduct a more detailed inquiry with browsewrap agreements. See Sgouros, 2015
WL 507584, at *4–6; Van Tassell, 795 F. Supp. 2d at 790.
Too Faced’s terms and conditions appear in browsewrap form on some pages
and clickwrap form on others. Plaintiff didn’t access any of the pages with clickwrap
agreements, though, so only the browsewrap agreement is at issue. 5 That agreement
states, [31] at 15–17 (citing [37-3] at 5):
By accessing or using the Site, you are acknowledging that you have read,
understand, and agree, without limitation or qualification, to be bound by
these Terms of Website Use. IF YOU DO NOT AGREE TO THE TERMS OF
WEBSITE USE, YOU MAY NOT USE THE SITE.
A user can find these terms by clicking on a “Terms and Conditions” link at the
bottom of each page of the website. [35] at 6; [37-3] at 3. The link, which sits in the
middle of fifteen links to other pages on the site and six links to social media
platforms, is shown below. [35] at 6; [37-3] at 3.
The clickwrap agreements appear on a number of pages. Someone logging in as a new
customer, for instance, must click a box agreeing to the Terms and Conditions. [37-3] at 7.
The same is true for a customer on the payment page. [37-3] at 11. And signing in with a preexisting account or proceeding to the checkout page as a guest sometimes requires a
customer’s agreement, though only if the customer continues via Facebook. [37-3] at 8, 10.
5
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According to defendant, a user can also find the terms-and-conditions page via
the pop-up notification that appears when a user pulls up the virtual try-on tool.
[37-3] at 13. The pop-up links to Too Faced’s privacy policy and not its terms and
conditions, [37-3] at 13, but defendant says that the privacy-policy page itself has a
link to the terms-and-conditions page. [37] at 12. Defendant offers no exhibits that
show this and the cited part of the complaint, [1] ¶¶ 25; 37, doesn’t support this either.
At the motion-to-dismiss stage, I disregard this factual allegation from defendant and
consider only whether the terms-and-conditions link at the bottom of each page
provides constructive notice.
This is a “fact-intensive inquiry,” Sgouros, 817 F.3d at 1034–35, that “depends
on the design and content” of the website and, specifically, the “conspicuousness and
placement” of the terms-and-conditions link. Nguyen v. Barnes & Noble Inc., 763 F.3d
1171, 1177 (9th Cir. 2014); see also Starke v. SquareTrade, Inc., 913 F.3d 279, 289–
92 (2d Cir. 2019). 6 To determine whether terms and conditions are displayed
Because California, New York, and Illinois law assess constructive notice under an objective
standard, see n. 4 above, Nguyen and Starke’s analyses are helpful here. See DeLeon v.
Verizon Wireless, LLC, 207 Cal. App. 4th 800, 813 (2012) (mutual consent necessary for
6
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conspicuously, courts look at a number of factors, including: whether the hyperlink’s
font is adequately contrasted by the color of its background; how cluttered the
webpage is (i.e., whether other things obscure the relevant link); and whether a page’s
entire screen is visible at once, so that users don’t have to scroll to find terms and
conditions. Starke, 913 F.3d at 289–94 (comparing the court’s finding of no
constructive notice in one case with a finding of constructive notice in another);
Hussein v. Coinabul, LLC, 2014 WL 7261240, at *3 (N.D. Ill. Dec. 19, 2014).
Defendant argues that the link here was clear and conspicuous, noting that it
is located under a “PRIVACY & TERMS” heading that’s in bold, all caps, and in a
contrasting color. [37] at 12. Plaintiff responds that users can’t see the link unless
they scroll to the very bottom of the page. [35] at 6 & n.1 (linking to an archived
version of the site as it existed in November 2021). What’s more, it’s placed in the
middle of fifteen links to other Too Faced pages and six links to Too Faced’s social
media sites. [35] at 6. A website design that requires users to scroll all the way to the
bottom to even become aware of the site’s terms and conditions, then requires them
to click on a buried link to learn the content of those terms and conditions, does not
put a user on constructive notice. See Nguyen, 763 F.3d at 1177–78; Soliman v.
Subway Franchisee Ad. Fund Tr., Ltd., 999 F.3d 828, 836 (2d Cir. 2021). A user could
easily try the tool without once confronting the terms-and-conditions link.
formation of a contract “is determined under an objective standard applied to the outward
manifestations or expressions of the parties”) (citation omitted); Starke, 913 F.3d at 289
(“objective meeting of the minds”).
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Even so, defendant says, plaintiff was on constructive notice for another
reason: she had recently filed two other BIPA suits—one against TikTok and another
against L’Oreal, the latter filed on the same day as this suit. [37] at 14 (citing [37-4]
¶ 91 and [37-5] ¶ 31). She allegedly accessed the TikTok and L’Oreal websites before
accessing the Too Faced website. Id. By the time she did, she was an “avid and
prodigious Internet app and tool user who…[knew] that websites routinely contain
terms of use accessible to users via hyperlinks,” and that those terms of use may
contain arbitration and class-action waiver provisions. [37] at 14. Her “attempt to
feign ignorance” of these facts should be rejected, defendant says. [37] at 14.
The Ninth Circuit addressed a similar argument in Nguyen. There, defendant
Barnes & Noble said plaintiff was familiar with browsewrap agreements on other
sites, including his own website. But that fact had no bearing on whether plaintiff
was on constructive notice about the terms and conditions on Barnes & Noble’s
website, the court said. 763 F.3d at 1179. The same is true here. A user is not
automatically on notice that any website she visits likely has terms and conditions
just because she’s visited other websites that had them. More importantly, she isn’t
on notice about what a site’s terms and conditions say just because other websites
had terms and conditions (whose contents she may or may not have read).
Because
plaintiff
adequately
disputed
the
conspicuousness
of
the
terms-and-conditions link, the arbitration clause cannot be enforced against her at
this stage of the case.
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C.
Sufficiency of the Allegations
Defendant next argues that I should dismiss the complaint because it provides
only conclusory legal statements and “naked assertions devoid of further factual
enhancement.” [31] at 17 (quoting Iqbal, 556 U.S. at 678). Defendant says plaintiff
doesn’t adequately allege that the try-on tool captured users’ facial geometry;
defendant collected users’ biometric data; and defendant’s conduct was negligent,
reckless, or intentional. [31] at 17–19. But plaintiff “present[s] a story that holds
together,” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010), and does
more than simply parrot the elements of a BIPA claim. Specifically, she explains how
the try-on tool works: using facial-geometry scans from a user’s uploaded picture or
live camera, the tool “identif[ies] the shape and features of the user’s face in order to
accurately overlay the virtual makeup product onto the image provided.” [1] ¶ 23.
With that description of the technology, it is reasonable to infer that collection of
biometric data is necessary for it to work. And at this stage, the fact that plaintiff’s
allegations are made on information and belief isn’t a problem because those facts
“are peculiarly within the knowledge of the defendants.” Huon v. Denton, 841 F.3d
733, 743 (7th Cir. 2016) (citation omitted) (“[P]otentially meritorious claims could be
prematurely and improperly dismissed if we were to accept [defendant’s] position,
since the information necessary to prove or refute allegations like [plaintiff’s] is
typically available only to defendants.”).
Defendant responds that other cases from this court required plaintiffs to show
more than they do here. [37] at 15–16. In four of those cases, though, plaintiffs sued
the third-party providers of the data-collection technology at issue—not the
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companies using the technology. See Heard v. Becton, Dickinson & Co., 440 F. Supp.
3d 960, 963–64 (N.D. Ill. 2020); Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279, 282
(N.D. Ill. 2019); Kloss v. Acuant, Inc., 462 F. Supp. 3d 873, 877 (N.D. Ill. 2020); Jacobs
v. Hanwha Techwin America, Inc., 2021 WL 3172967, at *2 (N.D. Ill. July 27, 2021).
This difference is relevant because the same set of facts may be enough to establish
liability of one defendant but not another. The Namuwonge court, for instance,
explained that although the complaint didn’t adequately allege BIPA violations by
the third party, the same factual allegations would have been enough to allege that
plaintiff’s employer impermissibly collected biometric data. 418 F. Supp. 3d at 286.
Here, plaintiff has alleged enough to infer that the defendant captured her biometric
information and no intermediary separated the defendant from the collection of
plaintiff’s facial geometry.
Defendant next argues that the cases plaintiff relies on involved complaints
that were more detailed. [37] at 16 (citing Neals v. PAR Tech. Corp., 419 F. Supp. 3d
1088 (N.D. Ill. 2018) and Pruitt v. Par-A-Dice Hotel Casino, 2020 WL 5118035 (C.D.
Ill. Aug. 31, 2020)). To the contrary, the allegations in Pruitt were skeletal compared
to those here. Plaintiffs only alleged that when they went to defendant’s casino, the
casino’s video-surveillance cameras captured their facial geometry and then
compared it to scans in an internal database. Pruitt, 2020 WL 5118035, at *1. Those
bare facts were enough; at that stage in the litigation, plaintiffs didn’t need to allege
“how they knew [d]efendants were conducting facial geometry scans or plead
technical details about the devices or software used.” Pruitt, 2020 WL 5118035, at *3.
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If the casino defendants weren’t using equipment that collected and stored biometric
data—as Estée Lauder claims here, [31] at 18 (“Plaintiff voluntarily ran the tool
without Estée Lauder obtaining, possessing, or collecting any biometric data.”)—that
fact would come to light in discovery, the court said. Pruitt, 2020 WL 5118035, at *3.
Nor did the complaint in Neals provide more information about defendant’s
data collection than plaintiff does here. The complaint merely alleged that defendant,
a third-party provider that sold fingerprint scanners to plaintiff’s employer, operated
a cloud-based point of sale system that enabled businesses to track their employees’
time with fingerprint scanners, and that plaintiff was required to scan her
fingerprints into that system. Neals, 419 F. Supp. 3d at 1090. She didn’t need to
“substantiate” her allegations that defendant collected biometric data, as defendant
argued. Id. at 1091. She’d presented a “story that [held] together,” and that was
enough. Id. So too here. At this stage, it’s enough that plaintiff alleged the use of the
try-on tool on defendant’s website, and that defendant possessed and collected
biometric data through use of the tool.
Still, defendant says, plaintiff hasn’t adequately alleged that defendant acted
negligently, recklessly, or intentionally. [31] at 19; [37] at 17. That argument is only
relevant to plaintiff’s request for damages. Under the act, plaintiffs are entitled either
to actual damages or liquidated damages of $1,000 per negligent violation and $5,000
per reckless or intentional violation, whichever is greater. 740 ILCS 14/20(1), (2).
There is no state-of-mind requirement for injunctive relief, though, 740 ILCS
14/20(4), so even if plaintiff failed to adequately allege negligence, recklessness, or
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intent, she could proceed on her claim. [1] ¶¶ 54–57, 58(e), 66–69, 70(e) (requesting
injunctive relief).
I agree with defendant that plaintiff hasn’t adequately alleged recklessness or
intent. States of mind can be alleged generally, Fed. R. Civ. P. 9(b), but “a plaintiff
still must point to details sufficient to render [the] claim plausible.” Pippen v.
NBCUniversal Media, LLC, 734 F.3d 610 (7th Cir. 2013). The complaint lacks those
details. Plaintiff doesn’t mention defendant’s state of mind until the very end of the
complaint, where she requests statutory damages. And no other facts in the
complaint point to recklessness or intent—e.g., knowledge of BIPA’s requirements or
statements about purposefully not complying with the law. Plaintiff has adequately
alleged negligence, though. Under Illinois law, “violation of a statutory standard of
care is prima facie evidence of negligence.” Cuyler v. United States, 362 F.3d 949, 952
(7th Cir. 2004). In the context of BIPA, this means that as long as a plaintiff
adequately alleges impermissible data possession and collection, she doesn’t need to
separately allege negligence.
Plaintiff has adequately alleged a negligent violation of Sections 15(a) and (b)
of the act and can proceed on that theory. Her claim of intentional and reckless
conduct is dismissed, though she may amend her complaint to cure that deficiency if
she can allege the requisite detail. See Barry Aviation, Inc. v. Land O’Lakes Mun.
Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004).
D.
Standing
Finally, defendant argues that because plaintiff only used the Too Faced
website, she lacks standing to sue on behalf of users who visited other Estée Lauder
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sites. [31] at 19–20; [37] at 18–20. A plaintiff’s individual claim cannot reach beyond
her own injuries, and so in cases involving injuries from purchased products, courts
often limit the case or controversy to the products plaintiff bought. See Flaherty v.
Clinique Labs. LLC, 2021 WL 5299773 (N.D. Ill. Nov. 15, 2021); Brodsky v. Aldi Inc.,
2021 WL 4439304 (N.D. Ill. Sep. 28, 2021); Porter v. NBTY, Inc., 2016 WL 6948379
(N.D. Ill. Nov. 28, 2016); Pearson v. Target Corp., 2012 WL 7761986 (N.D. Ill. Nov. 9,
2012)). But that does not decide the scope of a potential class represented by a
plaintiff or the plaintiff’s suitability to be a class representative. See Payton v. Cty. of
Kane, 308 F.3d 673, 677, 681–82 (7th Cir. 2002). At this stage of the case, there is no
class and I ask only whether I have subject-matter jurisdiction over plaintiff’s
individual claim. This is not a purchased-product case, and plaintiff alleges an injury
from a technology apparently deployed across multiple websites. Her injury is
traceable to defendant and can be redressed by a decision in her favor. No more need
be said to establish standing.
IV.
Conclusion
The motion to dismiss, [30], is granted in part and denied in part.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: November 7, 2022
20
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