While the Illinois Biometric Information Privacy Act (BIPA) remains one of the hottest areas of class action litigation today, many core issues underlying BIPA disputes remain unsettled and uncertain at this time. And as the recent decision by the Northern District of Illinois in Kukovec v. Estee Lauder Co., Inc., No. 22 CV 1988, 2022 U.S. Dist. LEXIS 202212 (N.D. Ill. Nov. 7, 2022) shows, courts are often in disagreement on many of these key matters—underscoring the need for compliance with the statutory requirements of the Illinois biometrics law.

Plaintiff Kukovec used a makeup try-on tool (“VTO Tool”) on the website of Too Faced Cosmetics, owned by Estee Lauder. The plaintiff claimed that the VTO Tool collected her facial geometry in violation of Sections 15(a) and (b) of BIPA. Estee Lauder subsequently moved to dismiss the complaint based on (among other things) the existence of an agreement to arbitrate and failure to plead a cognizable claim.

Estee Lauder’s argued dismissal was appropriate because the plaintiff’s claims were subject to arbitration. The company’s terms and conditions appeared in browsewrap form on some pages and clickwrap forms on others. Importantly, however, the plaintiff did not access any of the pages with a clickwrap agreement, so only the browsewrap agreement was at issue in the court’s analysis. The court easily dispatched with this argument, noting that Estee Lauder’s website design required users to scroll all the way to the bottom of the page to even become aware of the site’s terms and conditions, and then required users to click on a buried link to learn about the content of those terms and conditions. Thus, users could easily utilize the VTO Tool without once confronting the terms and conditions link. Taken together, the court concluded that the browsewrap agreement failed to put users on constructive notice, which was fatal to Estee Lauder’s arbitration argument.

Finally, the court addressed Estee Lauder’s argument that dismissal was warranted due to deficiencies regarding the sufficiency of the allegations concerning the conduct allegedly forming the basis for Estee Lauder’s BIPA violations; specifically, because the complaint provided only conclusory legal statements and “naked assertions devoid of further factual enhancement.” The court also rejected this argument, finding that the plaintiff’s complaint “present[ed] a story that holds together” and did more than simply parrot the elements of a BIPA claim. Thus, the complaint alleged plausible violations of BIPA Sections 15(a) and (b) that allowed the plaintiff to avoid dismissal under Civil Rule 12(b)(6).

Interestingly, the court found that the plaintiff failed to adequately allege recklessness or intent in connection with her request for damages underlying her BIPA cause of action. Here, the court reasoned that the complaint failed to set forth any facts pointing to recklessness or intent—e.g., knowledge of BIPA’s requirements or statements about purposefully not complying with the law. As such, while the plaintiff adequately alleged negligence—allowing her to proceed on that theory—her claim of intentional and reckless conduct was dismissed, though the plaintiff was permitted to amend her pleading to cure this deficiency if she was able to allege the requisite detail.

This case underscores the importance of maintaining strict compliance with the statutory requirements of Illinois’s biometric privacy law. The Kukovec decision also highlights the need for consumer-facing companies to ensure that they not only maintain arbitration agreements and class action waivers in their terms of use or similar online agreements, but also that online terms are presented to website users in the proper fashion—so that they create a legally enforceable agreement with consumers to resolve any biometric privacy suits in individual arbitration and not through class action litigation. At the same time, companies must also give thorough consideration when designing the layout and appearance of the mechanism for obtaining user assent to arbitration agreements. This includes ensuring the terms are presented directly and conspicuously to put users on notice and avoiding any type of “clutter” on the page.