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ModiFace Avoids Sephora Shopper’s Biometric Privacy Claims

June 2, 2020, 12:40 AM

ModiFace Inc., a developer of augmented reality technology for make-up simulation, beat biometric privacy claims that its tools were used by Sephora to capture customer face scans without consent, after an Illinois federal court found it lacked jurisdiction.

Sephora customer Auste Salkauskaite alleged in a lawsuit against both companies that her face scans were collected without consent, in violation of the Illinois Biometric Information Privacy Act, when she visited a branch in Chicago and participated in a “Visual Artist Kiosk.”

The case shows that plaintiffs must establish that defendants have a minimum level of contact within a state for complaints under BIPA to move forward.

ModiFace, a Canadian company that allegedly supplied Sephora with the biometric technology, sought to dismiss the claims in April 2019. The company then argued that it didn’t have a sufficient connection to Illinois for the U.S. District Court for the Northern District of Illinois to have jurisdiction to hear the case, according to court documents.

Judge Andrea R. Wood agreed, writing May 30 that ModiFace “did not purposefully avail itself of the privilege of conducting business in Illinois.”

Salkauskaite alleged in her complaint that the kiosk captured and stored customers’ facial scans and then asked them to provide phone numbers and other personal information to receive a scan with Sephora’s beauty products on it.

ModiFace claimed in its motion to dismiss that it doesn’t market or sell its products in Illinois and that it never had a business relationship with Sephora in Illinois. Wood found that Salkauskaite failed to rebut evidence that ModiFace didn’t have a business relationship in Illinois.

Sephora, which is owned by luxury goods company LVMH Moet Hennessy Louis Vuitton SE, must still face claims in the Illinois court. Wood denied its bid to transfer the case to the Northern District of California, where Sephora’s North American headquarters is based.

Representatives of both Sephora and Salkauskaite didn’t immediately respond to requests for comment.

Paul Hastings LLP represents ModiFace. Barack Ferrazzano Kirschbaum & Nagelberg LLP represents Sephora. McGuire Law, P.C. represents Salkauskaite.

The case is Salkauskaite v. Sephora USA, Inc., 2020 BL 201640, N.D. Ill., No. 18-cv-08507, motion granted 5/30/20.

To contact the reporter on this story: Julia Weng in Washington at jweng@bloombergindustry.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

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