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District court denies arbitration in mobile app BIPA suit

Courts Privacy/Cyber Risk & Data Security Arbitration Class Action

Courts

On June 1, the U.S. District Court for the Northern District of Illinois denied a mobile application company’s motion to, among other things, compel arbitration in a class action alleging the company used face-geometry scan technology in violation of the Illinois Biometric Information Privacy Act (BIPA). According to the opinion, the plaintiff brought the proposed class action against the company alleging the company used “facial recognition technology to scan, collect, and store his and other users' face geometries from videos and photographs they uploaded to [the company’s photo editing app] without satisfying [BIPA]’s requirements.” The company moved to compel arbitration of the claims on an individual basis. The court concluded that the plaintiff received reasonable notice of the terms of service when he signed up for his account and subscription plan in the app. However, the court noted that while the company’s terms of service include a binding arbitration agreement, the agreement does not cover potential violations of BIPA. Specifically, the court highlighted that the arbitration clause contained exceptions for “allegations of theft, piracy, invasion of privacy or unauthorized use,” and concluded that the BIPA claim is not within the scope of the agreement to arbitrate.

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