By order issued Tuesday, Judge John S. Tigar permitted a group of Instagram user plaintiffs to respond to a newly-made contention by Facebook amid its quest to compel arbitration in an ongoing biometrics privacy suit. In its reply brief, Facebook asserted that one of the plaintiffs, a minor, created a second Instagram account and agreed to arbitration as part of that sign-up process.
The 2020 privacy lawsuit alleged that Instagram’s corporate parent illegally collects users’ personally identifying biometric information in violation of the Illinois Biometric Information Privacy Act (BIPA). In response to the complaint, Facebook asked the court to compel arbitration, arguing that the plaintiffs assented to Instagram’s Terms of Use at least once, either at sign-up or through subsequent updates that were emailed to users. After that motion was filed, the court permitted arbitration-related discovery over Facebook’s protests, during which the defendant purportedly learned of the minor plaintiff’s second sign-up.
According to this week’s order, the plaintiffs have not had an opportunity to respond to the second sign-up argument or the evidence submitted in support thereof. “Nor have Plaintiffs had an opportunity to respond to other evidence submitted by Facebook with its reply, including evidence that Facebook contends supports a finding that Plaintiffs agreed to arbitration by continuing to use Instagram after the terms of use were updated in 2020,” Judge Tigar wrote.
In a footnote, the order acknowledged that Facebook could have made these arguments in its initial moving papers because some, but not all, of the evidence was then in its possession. Judge Tigar stated that while the court might otherwise decline to consider such evidence, “it will do so in this instance given its potential materiality.”
The plaintiffs have until October 1 to file a supplemental brief responding to the evidence presented with Facebook’s reply. Should they elect to do so, Facebook may file its own in response on or before October 15.
The Instagram users are represented by Carlson Lynch LLP, Whitfield Bryson LLP, and Greg Coleman Law PC and Facebook by Mayer Brown LLP and Cooley LLP.
