18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 643 sworn declaration authenticating the agreements. Based on this evidence, the Court granted the motion to compel arbitration. Soliman, et al. v. Subway Advertising Trust Fund Ltd., 2020 U.S. Dist. LEXIS 38183 (D. Conn. March 5, 2020). Plaintiff brought class action alleging that Defendant violated the Telephone Consumer Protection Act (“TCPA”) by sending her unwanted text messages. Plaintiff signed up to receive price discounts by means of promotional texts in response to Defendant’s marketing campaign in which consumers were invited to opt-in to receive sales promotions via text message by texting a keyword to the short code 782929. The campaign was communicated to consumers through print and digital advertisements that also contained a roughly 100-word, small-font black-on-white disclaimer stating in part, “Terms and conditions at subway.com/subwayroot/TermsOfUse.aspx, ” and “[t]o opt-out, text STOP to 782929.” The notice of the terms was cabined on the left by the phrase, “Consent not required to buy goods/svcs,” and on the right by notice of a privacy policy located at a different URL. The terms of use on Defendant’s website, to which the advertisement pointed, consisted of many screens of fine print. At the top of the webpage, Defendant instructed end-users in small but bold print to "PLEASE CAREFULLY REVIEW THESE TERMS OF USE FOR THIS WEBSITE ." Also at the top of the webpage was a table of contents that appeared to hyperlink to the terms’ various sections so that users would not have to scroll down to reach any particular one. Several screens down the webpage on most computer screens was an arbitration clause with the header, “Choice of Law & Dispute Resolution.” After signing up for the promotional texts, Plaintiff opted-out of Defendant’s text-based promotions by texting “Stop” to 782929, but due to a malfunction with Defendant’s opt-out technology, Plaintiff received another promotional text message. Plaintiff asserted that Defendant’s failure to honor her opt-out request violated various sections of the TCPA. For its part, Defendant moved to compel arbitration and argued that when Plaintiff signed up for the promotional texts she had also agreed to arbitrate. The Court disagreed with Defendant and concluded that Plaintiff did not agree to arbitrate. The Court determined that whether the parties had agreed to arbitrate was a question of state contract law, and California law applied. Under California law a contract is validly formed if there is reasonably conspicuous notice of the existence of contract terms, and unambiguous manifestation of assent to those terms. The Court held that the “reasonably conspicuous notice” requirement was not satisfied because a reasonably prudent consumer in Plaintiff’s shoes would not have known about the arbitration clause and would not have understood that the offer was conditioned on her acceptance of it. In so ruling the Court pointed out that Defendant created multiple obstacles to obstruct the consumer’s ability to understand that her acceptance of the promotional offer was also her acceptance of an agreement to arbitrate. Secondly, for the same reasons the Court held that by that same act of opting-in, Plaintiff did not manifest an unambiguous assent to the arbitration clause. For these reasons, the Court denied Defendant’s motion to compel arbitration. Sosa, et al. v. Onfido, Inc. , 2021 U.S. Dist. LEXIS 658 (N.D. Ill. Jan. 5, 2021). Plaintiff, a member of online marketplace run by OfferUp, Inc., alleged that Defendant, as a partner of OfferUp, used biometric identification technology to extract his biometric identifiers without notification in violation of the Illinois Biometric Information Protection Act (“BIPA”). Defendant filed a motion to compel arbitration of Plaintiff’s claims based on the user agreement that he agreed to as part of using the OfferUp site. The Court denied the motion. Plaintiff argued that Defendant should not be able to enforce the arbitration provision within the agreement because Defendant was not a party to that agreement and could not overcome that fact by invoking the common law doctrines of third- party beneficiary, equitable estoppel, and agency. Id . at *4. Defendant contended that the arbitration agreement was enforceable under all three common law doctrines. The Court considered each in turn, beginning with the doctrine of third-party beneficiaries. The Court noted that under the doctrine, a third-party need not be named in an agreement to be an intended beneficiary; however, "it must be identified in some manner, for example, by describing the class to which it belongs." Id . at *6. The Court held that the doctrine did not apply in this instance because the agreement made no mention of the arbitration of disputes between users and third-party providers, but only "OfferUp, Inc." and its users. Id . at *6-7. As to equitable estoppel, the Court applied the detrimental reliance standard, and found that all of the representations allegedly made by Plaintiff that Defendant detrimentally relied upon related to the merits of the case, and not the issue of whether the case should be arbitrated. Id . at *17. Accordingly, the Court held that the arbitration provision could not be enforced on the basis of equitable estoppel. Finally, the Court opined that in Illinois, an agent may invoke an arbitration agreement entered into by its principal, but it determined that nothing in the record suggested such a relationship between Defendant and OfferUp. Accordingly, absent any evidence to demonstrate a principal-agent relationship