A recent Law 360 story by Celeste Bott, “In a First, Dior Wants Fee Award For Beating BIPA Suit”, reports that Christian Dior says it should be the first defendant awarded attorney fees in a case under Illinois' biometric privacy law, urging a federal judge who threw out class claims against it to reject the argument that the law only allows for the recovery of fees for prevailing plaintiffs.  U.S. District Judge Elaine Bucklo in February dismissed the Illinois Biometric Information Privacy Act suit brought by lead plaintiff Delma Warmack-Stillwell, holding that an exemption under BIPA for data captured "from a patient in a health care setting" freed Christian Dior Inc. from the suit over its online tool for users to virtually try on sunglasses.

Warmack-Stillwell qualified as a patient because Dior's virtual try-on tool "facilitates the provision of a medical device that protects vision," the judge said.  In May, Dior argued that Judge Bucklo should award it attorney fees and costs, saying BIPA's plain language makes clear that a "prevailing party" may recover its attorney fees and that the Illinois Supreme Court has held that prevailing parties include defendants.

Dior claimed those fees were particularly warranted in this case, citing two other lawsuits that were dismissed by Illinois federal judges under the same health care exemption — one before Warmack-Stillwell's case was filed and one tossed about a week after hers was filed.  "These decisions were dispositive of this case, such that pursuing these claims would necessarily be wasteful," Dior claimed. "Plaintiff filed and pursued a lawsuit premised on a repeatedly-rejected theory of liability and increased the costs of this lawsuit with wasteful discovery demands."

Warmack-Stillwell, meanwhile, contends that no BIPA case has ever awarded fees to a defendant and says that BIPA provides a "prevailing party" may seek to recover its fees "for each violation," a phrase that necessarily implies further the word "proven" and therefore applies only to plaintiffs, she said.

In Dior's response contesting that interpretation, it cited the Illinois Supreme Court's recent holding in Cothron v. White Castle, which said claims accrue each time data is unlawfully collected and disclosed rather than simply the first time.  There, the justices cautioned against an "interpretation-by-assumption approach in the context of BIPA itself" by forbidding parties from creating "new elements or limitations not included by the legislature."

"In Cothron, it acknowledged that its ruling could result in 'annihilative liability' and that 'there is no language in [BIPA] suggesting legislative intent to authorize a damages award that would result in the financial destruction of a business,'" Dior said.  "And yet, because it found the statutory language was clear, those sort of policy judgments are reserved for the legislature. The same result applies here."

Judge Bucklo should also reject the plaintiff's other argument that the term "prevailing party" in BIPA should exclude defendants because the law's purpose is to protect consumers, Dior said in its reply.  "Of course, the Illinois Consumer Fraud Act was also intended to protect consumers, but that did not stop the Supreme Court from holding that its prevailing party provision applied to prevailing defendants as well," Dior said.