Unilaterally Amended Arbitration Clauses Permissible in Illinois
The dispute in Miracle-Pond v. Shutterfly, Inc., No. 19 cv 04722, 2020 U.S. Dist. LEXIS 86083 (N.D. Ill. May 15, 2020)stems from allegations by Plaintiffs Vernita Miracle-Pond (a Shutterfly account holder) and Samantha Paraf (who does not own a Shutterfly account) that Shutterfly (a photo publishing service) unlawfully stored biometric data from its facial-recognition technology. Plaintiffs, in their June 2019 filing on behalf of themselves and similarly situated Shutterfly users, claim that Shutterfly violated the Illinois Biometric Information Privacy Act (“BIPA”) “by using facial-recognition technology to extract biometric identifiers for ‘tagging’ individuals and by ‘selling, leasing, trading, or otherwise profiting from Plaintiffs’ … biometric identifiers and/or biometric information.’”
Plaintiff Required to Arbitrate
Here, the Court was asked to decide two motions: (1) Shutterfly’s motion to compel arbitration and (2) the Plaintiffs’ motion for curative measures regarding the September 2019 email.
Whether the web pages presented to the consumer adequately communicate all the terms and conditions of the agreement; and,
Whether the circumstances support the assumption that the purchaser receives reasonable notice of those terms.
Arbitration clauses subject to unilateral modification are illusory,
Miracle-Pond could not have assented to the arbitration provision because Shutterfly failed to provide notice of the 2015 modification, and
Arbitration clauses that apply retroactively are unenforceable.
As for Plaintiff Miracle-Pond’s third argument, the premise of the argument was that Plaintiff “did not agree to arbitration before she filed this lawsuit in June 2019, and that the September 2019 email was an attempt to retroactively force her into arbitration.” Nevertheless, the Court found that Plaintiff is bound by the 2015 modification. In other words, by continuing to use Shutterfly products after the 2015 notice, Plaintiff “agreed that her continued use of Shutterfly’s services would communicate her assent to the most recent version of the Terms and Use posted online at the time of her use.”
Accordingly, the Court granted Shutterfly’s motion to compel arbitration for Plaintiff Miracle-Pond and stayed the litigation for all remaining claims (including Plaintiff Paraf’s claims) pending the outcome of the arbitration. As for the curative measures claim, Judge Mary Rowland denied the motion due to a lack of persuasive authority on behalf of the Plaintiffs and remarked, “[t]he Court has not and will not rely on the 2019 email to find that any putative class members agreed to arbitrate. Indeed, Shutterfly conceded that the Court need not rely on the 2019 email for that purposes. No remedial measures are necessary.”