EAST ST. LOUIS - Owners of graduation website Balfour can’t enforce an arbitration clause against a potential class action over biometric privacy because plaintiff Joshua Gaertner didn’t see it, his counsel Matthew Limoli argued on Nov. 6.
Limoli opposed a motion that Iconic, a Texas business, filed in October.
He claimed an arbitration agreement on a website must be clear and conspicuous enough to give actual notice that a person is entering a contract rather than browsing a web page.
“Gaertner did not have notice of the arbitration clause hidden on defendant’s website and did nothing to indicate he agreed to its terms,” he wrote.
He extended the argument to Gaertner’s mother Donna Gaertner, who bought two pictures of her son’s graduation from Southern Illinois University at Edwardsville in May.
Iconic argued in its arbitration motion that if Joshua Gaertner didn’t consent to arbitration by searching pictures, his mother consented by buying them.
Limoli wrote, “Josh Gaertner did not ask his mother to use the Iconic website or to purchase the photos of him.”
“He understands that his mother did so on her own volition and for her own benefit, and made the purchase using her own funds,” he added.
Limoli and former St. Louis law firm leader John Driscoll, now in Puerto Rico, filed suit in July.
They claimed Iconic’s facial recognition software invaded Gaertner’s privacy.
They proposed to certify a statewide class seeking $1,000 for each negligent violation and $5,000 for each reckless and intentional violation.
They claimed Iconic photographers take two million photos at 6,000 events a year.
They listed 56 Illinois schools where Iconic photographed graduations.
Iconic counsel Jessica Dagley of Chicago moved for arbitration in October, claiming every page of the website provided a link to terms that included an agreement to arbitrate.
She claimed Iconic contracts with universities, and Gaertner graduated with a degree in computer engineering.
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.”
She added that they provided that any dispute would be resolved by binding arbitration.
Dagley claimed they stated there is no judge or jury in arbitration but an arbitrator can award an individual the same damages and relief as a court.
The terms allegedly stated a user was free not to proceed with using the website.
Dagley claimed Gaertner “and through his mother” consented to the terms through significant use of the website.
She added that they navigated to and through multiple pages that made the terms available.
“Even if he asserts that he did not agree to arbitrate, he is bound by his mother’s consent to arbitrate,” she wrote.
Limoli claimed in his opposition brief that a court can’t presume a person knew about a clause that required further action to find and assented to terms simply by using the internet.
He attached a declaration of Gaertner that he received emails with links to photos.
He declared he accessed the website and, “I did not see any reference to terms applicable to using the website and was never asked to agree to any terms of using the website.”
“I did not see any reference to an agreement to arbitrate with Iconic, was never asked to agree with Iconic, and did not do anything to indicate that I was agreeing to arbitrate with Iconic,” he declared.
Limoli claimed there was nothing visually distinctive about the use of terms hyperlink in general or relative to surrounding hyperlinks.
“All appear in a dull gray font and are not underlined unless the user places the mouse pointer over them,” he wrote.
He claimed a user needed to scroll through 15 paragraphs to find the arbitration clause.
District Judge Stephen McGlynn presides.