Vo v. VSP Retail Development Holding, Inc.
1:19-cv-07187
N.D. Ill.Mar 25, 2020Background
- Plaintiff Amanda Vo, an Illinois resident, used VSP Retail’s online “Virtual Try-On” which scanned her facial geometry to overlay eyewear.
- Vo alleges VSP collected her biometric identifiers without informed written consent and without a written retention/destruction policy, violating the Illinois Biometric Information Privacy Act (BIPA).
- VSP, a Delaware corporation, removed Vo’s state-court BIPA suit to federal court and moved to dismiss under Fed. R. Civ. P. 12(b)(6).
- Central legal question: whether the facial-scan data falls within BIPA’s health care exemption (information captured from a patient in a health care setting or collected/used/stored for HIPAA-covered health care operations).
- The court found Virtual Try-On is part of a health care service: eyewear is a Class I medical device and the software replicates diagnostic/assessment functions, so the scan was obtained from a patient in a health care setting.
- Because the data fell within BIPA’s health care exemption, the court dismissed the BIPA claim, declined to reach HIPAA preemption or Terms-of-Use waiver arguments, and denied leave to amend as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether biometric scans fall within BIPA or its health care exemption | Vo: she was not a patient; scans not health care, so BIPA applies | VSP: scans are collected as part of health care-related services for eyewear fitting; exemption applies | Court: exemption applies; BIPA claim dismissed |
| Whether Vo was a patient / in a health care setting | Vo: she never requested/received an exam or prescription | VSP: initial Virtual Try-On evaluation is a health care assessment even if no exam followed | Court: preliminary evaluation qualifies as health care; Vo was a patient |
| Whether HIPAA preempts BIPA | Vo: BIPA governs biometric privacy regardless of HIPAA | VSP: argued preemption (raised but not resolved) | Court: did not decide preemption because exemption dispositive |
| Whether website Terms of Use waived claims | Vo: Terms do not bar BIPA claim | VSP: Terms of Use purportedly disclaimed/waived claims (raised but not resolved) | Court: did not reach waiver issue because dismissal was dispositive |
Key Cases Cited
- Alam v. Miller Brewing Co., 709 F.3d 662 (7th Cir. 2013) (treating complaint allegations as true on a motion to dismiss)
- League of Women Voters of Chicago v. City of Chicago, 757 F.3d 722 (7th Cir. 2014) (draw reasonable inferences in plaintiff’s favor)
- McReynolds v. Merrill Lynch & Co., 694 F.3d 873 (7th Cir. 2012) (Rule 12(b)(6) tests complaint sufficiency)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations insufficient to survive dismissal)
- E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773 (7th Cir. 2007) (requirement that complaint give defendant fair notice of claim)
- Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510 (7th Cir. 2015) (futility standard for amendment denials)