Decorté Virtual Try-On Class Action Alleges Feature Violates Biometric Laws

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Decorté Virtual Try-On Class Action Lawsuit Overview:

• Who: A makeup customer is suing Decorté parent company Kose America.
• Why: Plaintiff Ashley Hiatt says the makeup brand’s virtual try-on tool violated Illinois biometric privacy laws.
• Where: The class action lawsuit was filed in Illinois federal court.

The owner of luxury makeup brand Decorté is collecting customers’ facial data and storing it without their consent, a new class action lawsuit alleges.

Plaintiff Ashley Hiatt filed the class action complaint against Kose America, Inc. Feb. 15 in an Illinois federal court, alleging violations of the Illinois Biometric Information Privacy Act (BIPA).

Decorté is a luxury cosmetics brand sold by Kose America in retail stores and online.

In March 2021, the brand launched a “Virtual Services” tool on its website that contains two artificial intelligence-driven features: a Virtual Try-On feature for cosmetics and a Skin Diagnostics feature, Hiatt says.

The tool enables consumers to see how beauty products will look on them through uploading a photo of themselves to the technology. 

The tool then uses the consumer’s facial biometric data and identifiers to show the person how the product will look on their face and to recommend beauty products, Hiatt says. 

However, the company is violating BIPA by failing to inform consumers that it is collecting, capturing, possessing, obtaining and using their biometric information and identifiers and by not informing them of how and where the data will be used. 

Hiatt says the company does not get informed written consent from the consumers before taking their facial data in violation of the law. 

“Defendant is depriving consumers of any meaningful opportunity to make an informed decision about the collection and use of their own biometrics in direct violation of BIPA,” the lawsuit states.

It says the aggregate amount in controversy exceeds $5 million exclusive of interest and costs. 

Class Action Affects at Least 4,000 People, According to Lawsuit

At least 4,000 people are estimated to have been impacted by the claims, the lawsuit states. Hiatt is looking to represent all Illinois residents who used the Virtual Services technology in Illinois from February 2017 to now.

She is seeking certification of the class action, damages of $5,000 for each intentional violation of BIPA and $1,000 for each negligent violation of BIPA.

Target is also fighting a class action lawsuit alleging its virtual try-on feature unlawfully captures, collects and stores consumers’ biometric data through facial geometry scans without their permission.

A similar class action lawsuit was filed in September 2021 against Amazon by consumers who allege the company violated BIPA with its virtual try-on feature. 

Have you used a virtual try-on feature without being aware it was collecting your biometric data? Let us know in the comments! 

The plaintiff is represented by Brendan Donelon and Daniel W. Craig of Donelon, P.C. and Thomas M. Ryan of the Law Office of Thomas M. Ryan. 

The Kose America Class Action Lawsuit is Ashley Hiatt v. Kose America, Inc., Case No. 1:22-cv-01044-JES-JEH, in the U.S. District Court for the Central District of Illinois Peoria Division. 

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