Court Sends Shutterfly BIPA Suit to Arbitration

A proposed class-action lawsuit filed against photo-sharing service Shutterfly that alleged it had violated the Illinois Biometric Privacy Act (BIPA) was dismissed by a federal judge last week, granting Shutterfly’s motion to compel the plaintiff to take her claims to arbitration.

The case — which was filed in June of 2019 by Vernita Miracle-Pond and Samantha Paraf in a Cook County Circuit Court — claimed that Shutterfly violated BIPA when it used facial recognition technology to identify and tag pictures of Miracle-Pond and upload them to its website without her consent.

A number of lawsuits have been filed under BIPA in recent months, with a variety of high profile companies finding themselves on the receiving end of them including Google, Amazon, Tik Tok, Clearview AI, WeWork, Wallgreens, Dr. Pepper and The Home Depot. In January, Facebook made headlines after it settled its BIPA lawsuit for a record-breaking $550 million.

However, U.S. District Judge Mary M. Rowland ruled in favor of Shutterfly, saying that Miracle-Pond agreed to Shutterfly’s terms of use by clicking a button labeled ‘Accept’ when she opened her account with the company in 2015, and that any subsequent revisions to those terms can be considered to have been accepted by the plaintiff due to the fact that she continued to order products and services from the company.

Judge Rowland said in her written statement that the terms of use Miracle-Pond accepted when she opened her account included a clause that allows the defendant to revise them by posting those changes online.

She pointed out that the clause states that continued use of Shutterfly’s websites, mobile sites or apps after changes are posted constitutes acceptance of both the changes and the revision clause, and noted that “Illinois courts allow parties to agree to authorize one party to modify a contract unilaterally,” citing the case of Williams v. TCF National Bank as precedent.

The Judge also rejected the plaintiff’s argument that she had not entered into an arbitration agreement with Shutterfly, writing that “Ms. Miracle-Pond entered into a valid arbitration agreement, and the [c]ourt grants Shutterfly’s motion to compel arbitration.”

The motion to compel arbitration applies only to Miracle-Pond, as Paraf reportedly never actually opened an account with Shutterfly.

Source: Chicago Daily Law Bulletin

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May 20, 2020 – by Tony Bitzionis