Contract Exclusions Count

Beth Graham has posted commentary on a new arbitration case out of the Northern District of Illinois denying a motion to compel arbitration of claims alleging violation of the 12-year-old Illinois Biometric Information Privacy Act (“BIPA”). 

In Acaley, et al. v. Vimeo, Inc., No. 19-CV-07164 (N.D. Ill., June 1, 2020), Acaley signed up for a Magisto account using a mobile app, signed up for another account using the Magisto website, subscribed to a paid account, and edited his subscription on several occasions. This is another one of those cases in which an individual was presented with opportunity to see the Terms of Service (the “Terms”), which included an arbitration clause.  However, Acaley argued that the app sign-up screen was designed in such a way that a link to the Terms could be covered at times by other pop-up screens.  Still, the court found that the website offered the Terms in a drop-down menu that was available to users, and the sign-up page stated “By continuing I agree to the terms.”  Accordingly, the Northern District of Illinois  found that there was an agreement to arbitrate, including adequate assent (regardless of difficulty of accessing the Terms).

Nonetheless, it all came down to the contract in terms of scope.  Because Magisto’s Terms excluded Acaley’s BIPA claims from arbitration, the Northern District of Illinois denied Vimeo’s motion to compel arbitral proceedings and directed Vimeo to answer Acaley’s complaint by June 23, 2020.

For more, see the post at Beth Graham, Illinois Federal Court Refuses to Send BIPA Lawsuit Filed Against Vimeo to Arbitration, LexBlog, https://www.lexblog.com/2020/06/05/illinois-federal-court-refuses-to-send-bipa-lawsuit-filed-against-vimeo-to-arbitration/ (June 5, 2020).

                       

Amy Schmitz

Amy Schmitz is the John Deaver Drinko-Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law. From 2016-2021 Professor Schmitz was the Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law and the Center for Dispute Resolution. Previously she… MORE >