Marino v. Gunnar Optiks, LLC

Plaintiff filed a class action complaint alleging that the defendant, a corporation that sells eyeglasses and other optical wear online, violated the Biometric Information Privacy Act through the collection of facial geometry scans taken in connection with virtual try-on software. Defendant filed a motion to dismiss arguing that the information collected fell under the health care exclusion contained in the Act. The circuit court granted the motion to dismiss with regard to prescription eyeglasses, but denied it for non-prescription eyewear. The trial court then certified the question of whether non-prescription eyeglasses fell under the healthcare exemption. The appellate court answered the question in the negative, explaining that it could not conclude a person trying on non-prescription eyeglasses was a “patient in a healthcare setting” under the Act. (LYLE and NAVARRO, concurring)