CHICAGO – U.S. District Judge David Dugan correctly enforced arbitration of a child’s class action claim that Snapchat violated the privacy of her face, Seventh Circuit appellate judges ruled on March 24.
They didn’t address whether her age invalidated her contract with Snap Inc., ruling that her arbitrator would resolve that dispute.
“As long as state law permits a child to ratify a contract, youth must be a defense rather than an obstacle to a contract’s formation, and as a defense it goes to the arbitrator,” Circuit Judge Frank Easterbrook wrote.
Plaintiff K.F.C., a Williamson County resident, signed up for an account when she was 11 years old.
Terms of service incorporated an American Arbitration Association rule that an arbitrator had power to rule on his or her own jurisdiction.
“The enrollment terms specify that a person must be at least 13 to have an account, but K.F.C. lied about her age,” Easterbrook wrote.
Her mother Erin Clark filed suit as her guardian in circuit court at Marion in 2020, claiming Snap violated Illinois law on biometric privacy.
John Driscoll, former St. Louis lawyer now practicing from Puerto Rico, filed it in association with six lawyers at Milberg Coleman offices in three states.
The suit claimed Snap connected landmarks by lines to create a facial map, and that Snap collected and possessed the child’s identifiers without notifying her in writing and obtaining her consent.
The suit sought $5,000 for each intentional and reckless violation and $1,000 for each negligent violation.
Snap removed the action to district court, claiming it exceeded the $5 million limit that federal law generally applies to class actions in state courts.
Last year Snap counsel Elizabeth Herrington of Chicago moved to enforce an arbitration provision in the contract.
She argued the child accepted the contract three times.
She claimed the arbitration provision wasn’t difficult to find, read, or understand.
She also claimed that Snapchat doesn’t use facial recognition to place special effects; uses objection recognition technology that allows Snapchat to identify a nose as a nose or an eye as an eye.
“It does not and cannot identify a nose or an eye, let alone a whole face, as belonging to any specific person,” she wrote.
Driscoll responded that the child disaffirmed the contract.
He claimed she deleted the application from her phone and hadn’t attempted to access it since filing the action.
At a hearing last May, Herrington said the child opened Snapchat 28 times on Feb. 14, and spent 116 minutes on it.
She said the child couldn’t disavow a contract while enjoying its benefit.
Plaintiff counsel Matthew Lee of Raleigh, N.C. said Snap left the account open after it was disaffirmed.
“This case is really about whether parents can protect their children from Silicon Valley,” Lee said.
He said it was about whether a little girl in Illinois can give up fundamental rights.
He said Clark tried to be a good mom and her daughter was a normal kid.
“Snap is preying on that kid that they knew was under age when she opened this account,” he said.
Herrington responded, “We’re not saying that she’s without any type of remedy. It just belongs in arbitration.”
Dugan agreed in June, and dismissed the complaint.
“Generally, an arbitrator should decide a challenge to the validity of the contract as a whole,” Dugan wrote.
He found Snap’s incorporation of arbitration association rules provided unmistakable evidence of intent to delegate threshold issues to an arbitrator.
He found the law required him to enforce a valid delegation clause even if the underlying arbitration agreement was potentially void.
Seventh Circuit judges reached the same conclusion.
Easterbrook found that according to the child, a judge must decide that a contract has been formed before he may order arbitration.
He found the breadth of delegation irrelevant if parties didn’t enter into a contract.
“But if there is a contract, then an arbitration clause may delegate all other issues, including defenses, to the arbitrator,” Easterbrook wrote.
“Illinois does not think that agreements between adults and children are void, that they must be ignored no matter what.
“Illinois treats such agreements as voidable, which means that children may elect how to proceed once they come of age.”
He found the difference subtle but important.
“A voidable agreement, unlike a void one, may be ratified,” he wrote.
“K.F.C.’s arguments about her youth and public policy concern the contract’s validity, not its existence.”
Circuit judges Amy St. Eve and Thomas Kirsch concurred.