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Plaintiff in Onfido biometric data privacy suit argues against appeal of arbitration decision

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Onfido cannot force arbitration in a biometric data privacy lawsuit against it based on its partners terms of service, the plaintiff argued in a filing with the Seventh Circuit court reported by Law360.

The motion is in response to an appeal by Onfido of a lower court ruling that the company is not an intended third-party beneficiary of the terms of service provided by online marketplace OfferUp, and therefore not eligible to force arbitration.

The suit under Illinois’ Biometric Information Privacy Act (BIPA) alleges violations of the Act’s informed consent requirements by Onfido in the course of providing its biometric customer authentication technology TruYou for OfferUp users.

Representatives of plaintiff Fredy Sosa argue in a brief that the district judge’s decision that the terms apply only to OfferUp and its customers, with no mention of third parties, and a structure that would not make sense applied to third parties. The brief notes that details are provided under the arbitration clause for how notice should be delivered to OfferUp and users, but not for how third parties should be informed.

Sosa also argues that Onfido is incorrect in asserting its right to invoke a Washington choice-of-law clause based on OfferUp’s terms, because it is not a signatory to those terms, and according to the briefing has not established that there is a difference between Washington and Illinois State law that would result in a different outcome. Further, Sosa did not agree that that law would apply to the dispute, the plaintiff claims.

The plaintiff’s brief asserts that it is “far from clear that Washington has the most significant relationship to the dispute at issue here: whether a Delaware company headquartered in California can enforce terms of service to which it is not a party in order to compel arbitration of an Illinois statutory privacy claim brought against it by an Illinois citizen.”

The case presents a contrast to the dispute over TikTok’s proposed $92 million biometric privacy suit settlement, in which plaintiffs are seeking to force arbitration.

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