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<xTITLE>Contract Exclusions Count</xTITLE>

Contract Exclusions Count

by Amy Schmitz
June 2020 Amy Schmitz

Beth Graham has posted commentary on a new arbitration case out of the Northern District of Illinois denying a motion to compel arbitration of claims alleging violation of the 12-year-old Illinois Biometric Information Privacy Act (“BIPA”). 

In Acaley, et al. v. Vimeo, Inc., No. 19-CV-07164 (N.D. Ill., June 1, 2020), Acaley signed up for a Magisto account using a mobile app, signed up for another account using the Magisto website, subscribed to a paid account, and edited his subscription on several occasions. This is another one of those cases in which an individual was presented with opportunity to see the Terms of Service (the “Terms”), which included an arbitration clause.  However, Acaley argued that the app sign-up screen was designed in such a way that a link to the Terms could be covered at times by other pop-up screens.  Still, the court found that the website offered the Terms in a drop-down menu that was available to users, and the sign-up page stated “By continuing I agree to the terms.”  Accordingly, the Northern District of Illinois  found that there was an agreement to arbitrate, including adequate assent (regardless of difficulty of accessing the Terms).

Nonetheless, it all came down to the contract in terms of scope.  Because Magisto’s Terms excluded Acaley’s BIPA claims from arbitration, the Northern District of Illinois denied Vimeo’s motion to compel arbitral proceedings and directed Vimeo to answer Acaley’s complaint by June 23, 2020.

For more, see the post at Beth Graham, Illinois Federal Court Refuses to Send BIPA Lawsuit Filed Against Vimeo to Arbitration, LexBlog, https://www.lexblog.com/2020/06/05/illinois-federal-court-refuses-to-send-bipa-lawsuit-filed-against-vimeo-to-arbitration/ (June 5, 2020).

 

 

Biography


Professor Amy J. Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit.


Professor Schmitz teaches courses in Contracts, Lawyering, Online Dispute Resolution (ODR), AI, Data Analytics and the Law, Arbitration, International Arbitration, and Consumer Law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force.  Recent speaking engagements include various webinars and events around ODR with the American Bar Association, ODR Forums in New Zealand, Paris and the U.S., Universities in Munich and Augsburg, Germany, Cyberjustice Lab in Montreal, Consumer Financial Protection Bureau in Washington, D.C.; University of Leicester in England; Stanford Law School; and many other universities and conferences throughout the world. She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR. She also has taught in France, South Africa, and Oxford, England, and has been an expert and liaison for the United Nations working group seeking to create a global ODR mechanism (UNCITRAL WG III). Professor Schmitz has published over 50 articles in law journals and books, and a book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, with Colin Rule.



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