EAST ST. LOUIS - Iconic Inc., provider of graduation photographs on its Grad Images website, moved for arbitration of a class action claim that it invaded biometric privacy.
Jessica Dagley of Chicago, counsel for the Texas company, claimed every page of the website provided a link to terms of use that included an agreement to arbitrate.
She claimed plaintiff Joshua Gaertner of Randolph County was a sophisticated website user according to a Linked In profile.
He allegedly graduated from Southern Illinois University Edwardsville in May with a degree in computer engineering.
His mother Donna Gaertner purchased two pictures of his graduation from Grad Images.
John Driscoll of Puerto Rico sued Iconic for Gaertner at U.S. district court in July, seeking millions in damages under Illinois biometric privacy law.
The law provides liquidated damages of $1,000 for each negligent violation and $5,000 for each reckless and intentional violation.
Driscoll claimed it prohibits private profit from biometric information.
He also claimed Iconic didn’t inform Gaertner that it would profit from his image.
Driscoll proposed to certify a class of Illinois residents whose identifiers Iconic collected, captured, purchased, obtained, or profited from.
He listed 56 Illinois high schools, colleges and universities where Iconic has photographed graduations.
He claimed its photographers take two million photos at 6,000 events a year.
Dagley claimed in her arbitration motion that Iconic contracts with universities.
She also claimed customers view photos through a portal tied to a student’s customer identification.
Customers allegedly locate a graduate by searching for name, school, and graduation year.
They submit “Not Me” requests, giving them ability to submit personal messages.
Dagley claimed the terms of use stated, “If you do not want to agree to these terms of use you must not access or use this website.”
The terms continued, “By using this Iconic Group website, you agree to these conditions. Please read them carefully.”
Dagley claimed the terms provided that any dispute relating to the website or its products and services would be resolved “by binding arbitration rather than in court.”
They allowed an exception for small claims court.
The terms allegedly stated there is no judge or jury in arbitration but an arbitrator can award an individual the same damages and relief as a court.
“A user is under no time constraints when reviewing the terms of use before using the website, using the Not Me requests feature, or placing an order,” Dagley wrote.
She claimed the terms stated a user was free not to proceed with using the website.
She also claimed Gaertner, “and through his mother,” consented to the terms through significant use of the website.
Dagley alleged a user, presumably Joshua Gaertner, located and viewed photos linked to his customer identification on at least four occasions and made Not Me requests.
She claimed Donna Gaertner admitted she accessed and used the website to locate, view and purchase photographs.
She added that Joshua and his mother navigated to and through multiple pages that made the terms of use available.
“Even if he asserts that he did not agree to arbitrate, he is bound by his mother’s consent to arbitrate,” she wrote,
Dagley claimed the relevant inquiry for Internet contract formation was whether a website adequately communicated terms and conditions and whether circumstances support an assumption that the purchaser received reasonable notice of the terms.
She claimed the Federal Arbitration Act reversed long stand judicial hostility to arbitration and adopted an emphatic policy in favor of it.
“Its principal purpose is to ensure that private arbitration agreements are enforced according to their terms,” she wrote.
District Judge Stephen McGlynn set a Nov. 6 deadline for a response.