Halim v. Charlotte Tilbury Beauty Inc.
| Decision Date | 11 May 2023 |
| Docket Number | 23 CV 94 |
| Parties | OLENA HALIM, individually and on behalf of all those similarly situated,, v. CHARLOTTE TILBURY BEAUTY INC. and ISLESTARR HOLDINGS, LTD. Defendants |
| Court | U.S. District Court — Northern District of Illinois |
Plaintiff Olena Halim (“Plaintiff”), on behalf of herself and a proposed class of all those similarly situated, brings suit against Defendants Charlotte Tilbury Beauty Inc. (“Charlotte Tilbury”) and Islestarr Holdings Ltd. (“Islestarr”) (collectively “Defendants”) for alleged violations of the Illinois Biometric Privacy Act (“BIPA”) and unjust enrichment arising out of Plaintiff's and the proposed class members' use of Defendants' “Charlotte's Virtual Try On” tool. Defendants removed the case from state to federal court pursuant to the Class Action Fairness Act (“CAFA”). Currently before the Court is Plaintiff's motion to remand [Dkt 29]. For the reasons explained below, the Court concludes that Defendants have not satisfied CAFA's $5 million amount in controversy requirement. Plaintiff's motion to remand [Dkt. 29] is therefore granted. This matter will be remanded to the Circuit Court of Cook County. Civil case terminated.
Plaintiff is an individual who resides in Chicago, Illinois. Defendant Charlotte Tilbury, a Delaware corporation with its principal place of business in New York City, is a makeup and cosmetics company that sells its branded products online and in brick and mortar stores. Defendant Islestarr, a United Kingdom private limited corporation with its principal place of business in London, is Charlotte Tilbury's parent company.
On the Charlotte Tilbury website and in select stores, Defendants invite consumers to “virtually try on” Charlotte Tilbury cosmetic products such as lipstick, mascara, eyeliner, and blush. [Dkt. 1-1, ¶ 22.] A consumer accesses Charlotte's Virtual Try On tool by clicking a “TRY IT ON ME” hyperlink on the product page. A box appears that says, “WELCOME TO CHARLOTTE'S VIRTUAL TRY ON” and includes a button labeled “ALLOW CAMERA ACCESS.” [Id. ¶ 26.] When the consumer clicks “ALLOW CAMERA ACCESS,” Defendants use the consumer's camera to take a live scan of the consumer's face, which is then overlaid with the selected makeup product.
Charlotte's Virtual Try On tool uses a sophisticated and precise facial recognition technology called “Makeup AI™”. Makeup AI™ uses a scan of the consumer's facial landmarks and facial geometry to create a “face template.” [Dkt. 11, ¶ 31.] Each face template is unique to an individual and can be used to identify them. On information and belief, Islestarr owns and holds the trademark to Makeup AI™ and also owns the copyright for the Charlotte Tilbury website.
On several occasions between December 2020 and October 2022, Plaintiff visited the Charlotte Tilbury website and used Charlotte's Virtual Try On tool to see how Charlotte Tilbury cosmetic products would look if applied to her face. Plaintiff “virtually” tried on lipstick, lip liner, eye shadow, highlighter, and other cosmetics. To use the tool, Plaintiff was required to turn on and use her live camera so it could scan, capture, use and store digital copies of her unique facial geometry. Prior to capturing Plaintiff's biometric identifiers, Defendants did not inform Plaintiff that these identifiers were being captured, collected, stored, used, or disseminated. Nor did Defendant publish any policy concerning the retention or destruction of biometric identifiers.
Plaintiff filed suit against Defendants in the Circuit Court of Cook County on December 7, 2022, alleging that Defendants operated Charlotte's Virtual Try On tool in a manner that violates multiple provisions of BIPA. In Count One, Defendants allegedly violated BIPA subsection 15(a) because they “failed to develop a written policy, made available to the public, that establishes a retention schedule and guidelines for permanently destroying the biometric identifiers and/or biometric information of Plaintiff and Class members.” [Dkt. 1-1, ¶ 37 (citing 740 ILCS § 14/15(a); see also id., ¶¶ 56-62 (Count I).]
In Count Two, Plaintiff alleges that “Defendants never informed or disclosed to Plaintiff and Class members that it was capturing, collecting, and storing their biometric identifiers and biometric information,” in violation of subsection 15(b)(1) of BIPA. [Dkt. 1-1, ¶ 32 (citing 740 ILCS § 14/15(b)(1)]; that “Defendants never informed Plaintiff and the Class members of the specific purpose and length of time for which Defendants were collecting, storing, and using their biometric identifiers and biometric information,” in violation of subsection 15(b)(2). Id., ¶ 33 (citing 740 ILCS § 14/15(b)(2)); and that Defendants “never obtained a written release executed by Plaintiff and Class members prior to collecting, capturing, storing, and using their biometric identifiers or biometric information.” Id., ¶ 34 (citing 740 ILCS § 14/15(b)(3)); see also [Dkt. 1-1, ¶¶ 63-73 (Count II).]
Count Three claims that Defendants allegedly violated BIPA subsection 15(c) by failing to obtain consent to transfer, disclose, redisclose, or disseminate biometric identifiers and biometric information to other companies within the Charlotte Tilbury Group, as well as vendors, service providers, and other third parties. [See id., ¶¶ 3940, 43 (citing 740 ILCS § 14/15(c); see also id., ¶¶ 74-81 (Count III).] Count Four claims that Defendants allegedly violated BIPA subsection 15(d) by disclosing and disseminating Plaintiff's biometric information and identifiers without consent (Count IV). [Id. ¶¶ 42, 82-89 (citing 740 ILCS § 14/15(d) (Count IV).] Plaintiff seeks “$1,000 for each negligent violation of BIPA” and “$5,000 for each willful and/or reckless violation.” [Id., ¶¶ 62, 71, 79, 87.] Finally, Count V is a claim for unjust enrichment that requests injunctive and equitable relief, attorneys' fees, and costs.
On January 6, 2023, Defendants removed the action to this Court. [See Dkt. 1.] Plaintiff filed her motion for remand on March 28, 2023, arguing that Defendants fail to satisfy CAFA's requirement that the amount in controversy exceed $5 million and that the Court lacks subject matter over her claims for violation of subsections 15(a) and 15(c) of BIPA. [See Dkt. 29.]
Defendants removed this action to federal court pursuant to CAFA, which was enacted in 2005 “to facilitate adjudication of certain class actions in federal court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). “CAFA expands jurisdiction for diversity class actions by creating federal subject matter jurisdiction if: (1) a class has 100 or more class members; (2) at least one class member is diverse from at least one defendant (‘minimal diversity'); and (3) there is more than $5 million, exclusive of interest and costs, in controversy in the aggregate.” Sabrina Roppo v. Travelers Commercial Ins., 869 F.3d 568, 578 (7th Cir. 2017) (citing 28 U.S.C. § 1332(d); Hart v. FedEx Ground, 457 F.3d 675, 677 (7th Cir. 2006)).
Defendants, as the parties asserting federal jurisdiction, have “the burden of showing that CAFA's requirements are satisfied.” Schutte v. Ciox Health, LLC, 28 F.4th 850, 854 (7th Cir. 2022) (citing Roppo, 869 F.3d at 578). “To meet this burden, a defendant seeking to remove to federal court must file in the district court a notice of removal ‘containing a short and plain statement of the grounds for removal.'” Roppo, 869 F.3d at 578 (quoting 28 U.S.C. § 1446(a)). “By design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure.” Dart Cherokee Basin Operating Co., 574 U.S. at 87 (citing 14C C. Wright, A. Miller, E. Cooper, & J. Steinman, Federal Practice and Procedure § 3733, pp. 639641 (4th ed. 2009)). “Congress, by borrowing the familiar ‘short and plain statement' standard from Rule 8(a), intended to ‘simplify the pleading requirements for removal' and to clarify that courts should ‘apply the same liberal rules [to removals] that are applied to other matters of pleading.'” Id.
In this case, Plaintiff objects to removal on the basis that Defendants cannot satisfy CAFA's $5 million minimum amount in controversy requirement. Since Plaintiff contests Defendants' factual allegations concerning the amount in controversy, removal is proper only “if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds” the jurisdictional threshold. 28 U.S.C. § 1446(c)(2)(B); see also Schutte, 28 F.4th at 854; Blomberg v. Serv. Corp. Int'l, 639 F.3d 761, 763 (7th Cir. 2011). In determining whether the jurisdictional threshold has been met, the court “evaluate[s] the plaintiff's complaint and the record as a whole as of the time the case was removed.” Janis v. Workhouse Custom Chassis, LLC, 891 F.Supp.2d 970, 973 (N.D. Ill. 2012) (citing Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 404 (7th Cir. 2004)).
Defendants “only must establish the amount in controversy by a good faith estimate that is ‘plausible and adequately supported by the evidence.'” Roppo, 869 F.3d at 579 (quoting Blomberg, 639 F.3d at 763). They “do[] not need to establish what damages the plaintiff will recover, but only how much is in controversy between the parties.” Bloomberg, 639 F.3d at 763. There are several non-exclusive ways Defendants may meet this burden, including (1) “by calculation from the complaint's allegations”; (2) “by reference to the plaintiff's informal estimates or settlement demands”; and (3) “by introducing evidence, in the form of affidavits from the defendant's employees or experts, about how much it would cost to satisfy the plaintiff's demands.” Roppo, ...
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