News
Goldberg Kohn Litigation Principal David Morrison is quoted in the article, “Top Illinois Decisions of 2025,” published in the Dec. 23, 2025, edition of Law360. The article breaks down some of the biggest rulings courts have issued in Illinois cases in 2025, including Tonya Svoboda et al. v. Amazon.com Inc. in the U.S. Circuit Court of Appeals for the Seventh Circuit.
At the very end of the year, the Seventh Circuit affirmed an Illinois district judge's certification of a class of more than 100,000 Amazon shoppers who accuse the e-commerce giant of illegally collecting their facial geometric data in violation of the state's biometric privacy law when they used the company's virtual try-on feature to preview products such as makeup and eyewear.
On Dec. 17, 2025, the appellate court rejected the argument from Amazon's online retail unit that it would take "tens of thousands of mini trials" to determine whether every class member in consumers Tonya Svoboda and Antonella Colosi's lawsuit used its virtual try-on feature while in Illinois.
The shoppers, who used the feature to test facial products like lipstick and eyewear in Amazon's app, filed claims against the retail giant under the Illinois Biometric Information Privacy Act, which provides companies must get written, informed consent before capturing biometric data, such as the facial geometry at issue in the litigation, and make certain disclosures about its data retention and destruction policies. Amazon was unable to convince the three-judge panel that determining each individual's location would make the class action too burdensome to litigate.
The appellate court agreed that proof of location is individualized, but the question was whether it predominated over the common questions concerning Amazon's liability — whether the facial data used by the try-on tool constitutes biometric identifiers under BIPA, and whether using the try-on feature meant that Amazon collected, captured, obtained, or possessed users' biometric information, according to David Morrison.
"Because the answer to those common questions running across the class would either lead to Amazon's liability to all or none of the class, the appellate court held that class certification was appropriate," David is quoted as saying.
The Seventh Circuit held that determining users' locations, and verifying they used the try-on tool in Illinois, could be handled in a "final phase" of litigation, where class members will have to submit individualized proofs of claim and show they used the feature in Illinois to be awarded damages, which can include billing addresses, IP and geolocation data, and affidavits.
"That does not mean that Amazon cannot challenge class members' individual proof of location — it can. But that is for another stage in the litigation," said David.
The court also made a point in instructing the district court to "remain vigilant in monitoring the propriety of certification as the case develops" and making clear it could go another way “should damages become unmanageable."
"So, while Amazon must face this class action for now, it maintains the right to question whether a class resolution of the individual damages [and] location issues is more appropriate on an individualized basis and thus seek to decertify the class later," David said.
The case is Tonya Svoboda et al. v. Amazon.com Inc., case number 25-1361, in the U.S. Circuit Court of Appeals for the Seventh Circuit.
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