Mary M. Rowland
Mary M. Rowland

A woman’s allegations that the photo-printing service Shutterfly violated her rights under the Illinois Biometric Information Privacy Act do not belong in court, a federal judge held.

In a written opinion Friday, U.S. District Judge Mary M. Rowland granted Shutterfly’s motion to compel Vernita Miracle-Pond to take her claims to arbitration.

Rowland rejected the argument that Miracle-Pond is not bound by an arbitration clause added to her agreement with Shutterfly in May 2015, nine months after she opened her account.

The terms of use in effect when Miracle-Pond opened her account included a clause allowing Shutterfly to revise those terms by posting the revisions online.

The revision clause states that the continued use of Shutterfly’s websites, mobile sites or mobile applications after any changes are made constitutes acceptance of those changes.

The clause also states that ordering products or using services constitutes acceptance of the terms of use, including the revision clause.

The clause does not require Shutterfly to notify users of revisions other than by posting them online.

“Ms. Miracle-Pond entered into a valid arbitration agreement, and the [c]ourt grants Shutterfly’s motion to compel arbitration,” Rowland wrote.

Shutterfly is an online picture-storage service. It also offers printing services and website hosting.

In June 2019, Miracle-Pond and Samantha Paraf filed a proposed class-action lawsuit against Shutterfly in Cook County Circuit Court.

Shutterfly removed the suit to federal court the following month under diversity jurisdiction.

The suit alleges Shutterfly violated the biometric information act by using facial-recognition technology to “tag” individuals depicted in photographs uploaded to Shutterfly’s websites.

Shutterfly also allegedly violated the act by “selling, leasing, trading or otherwise profiting” from the biometric information of Miracle-Pond, Paraf and class members, the suit contends.

In October, Shutterfly filed a motion to compel Miracle-Pond to arbitrate her claims and to stay the litigation of those claims while the arbitration was pending.

The motion applied only to Miracle-Pond because Paraf never had a Shutterfly account.

In her opinion, Rowland rejected the argument that Miracle-Pond had not entered into an arbitration agreement with Shutterfly.

When Miracle-Pond created her account on Shutterfly’s website, Rowland wrote, she clicked on a button reading “Accept” under a statement indicating she agreed to the terms of use.

Another statement told users they could view the terms of use on their phone or on Shutterfly’s website, Rowland wrote.

And she wrote clicking on the “Accept” button or a button reading “Decline” was required before a user could complete creating an account.

Rowland also rejected the argument that arbitration clauses that may be modified unilaterally are illusory.

“Illinois courts allow parties to agree to authorize one party to modify a contract unilaterally,” she wrote, citing cases that included Williams v. TCF National Bank, No. 12 C 5115, 2013 WL 708123 (N.D. Ill. Feb. 26, 2013).

“More specifically, Illinois courts have repeatedly recognized the enforceability of arbitration provisions added via a unilateral change-in-terms clause.”

A change-in-terms, or revision, clause was included in the terms Miracle-Pond accepted when she opened her account, Rowland wrote.

Miracle-Pond, she continued, indicated her acceptance of the arbitration clause by placing four orders for products after it was added to the terms of use.

The case is Vernita Miracle-Pond, et al. v. Shutterfly Inc., No. 19 C 4772.

Miracle-Pond is represented by attorneys who include Henry J. Kelston of Ahdoot & Wolfson P.C. in Los Angeles.

Miracle-Pond’s attorneys could not be reached for comment.

The lead attorney for Shutterfly is Lauren R. Goldman of Mayer Brown LLP in New York.

“Shutterfly’s policy is not to comment on pending litigation,” Goldman said in a statement.