DiCello Levitt, Co-Counsel Secure Appellate Victory Vacating Dismissal of BIPA Lawsuit Over Facial-Geometry Data Collection
The U.S. Court of Appeals for the Seventh Circuit has revived a proposed class action led by DiCello Levitt LLP and Hausfeld LLP alleging that Gunnar Optiks, LLC violated the Illinois Biometric Information Privacy Act (BIPA) by collecting consumers’ facial-geometry data through its virtual try-on feature without complying with the law’s consent and data-retention requirements.
In an opinion issued on July 10, 2026, the Seventh Circuit vacated the district court’s dismissal and remanded the case for further proceedings.
Plaintiff William Clements alleges that Gunnar’s technology scanned users’ faces and transmitted biometric data so consumers could see how different glasses frames would look on them. Gunnar argued that the data fell within BIPA’s exemption for information collected, used, or stored for health care treatment under HIPAA.
The appellate court found that whether the exemption applied was beyond the scope of the complaint and could not be resolved at the pleading stage. Writing for the court, Judge Frank H. Easterbrook observed that Gunnar used the data to show consumers how the glasses would look, not to facilitate treatment, adding: “The ‘virtual try on’ service that Gunnar offered seems to be aesthetic, not medical,” and “[b]etter-appearing glasses are not medical treatment.”
The court also noted that the healthcare exemption refers to health care “under” HIPAA, which “implies that, to be exempt, the entity that obtains the information must comply with HIPAA.” Factual development may be necessary to determine whether Gunnar complied with HIPAA’s data collection and privacy requirements.
The decision allows the biometric privacy lawsuit to proceed in the U.S. District Court for the Northern District of Illinois.
The DiCello Levitt team is led by Nada Djordjevic and includes Amy Keller and James Ulwick. The case is William Clements v. Gunnar Optiks, LLC, No. 25-1890, in the U.S. Court of Appeals for the Seventh Circuit.
