Match Group Presses On With Its Motion to Dismiss BIPA Claims

Plaintiff Marcus Baker provides no case law supporting his “draconian position” that his Illinois Biometric Information Privacy Act claims against Match Group should proceed before the U.S. District Court for Northern Illinois in Chicago, rather than in small claims court, as JAMS (formerly Judicial Arbitration and Mediation Services) ordered when it closed Baker’s arbitration, said the dating service Tuesday in its reply (docket 1:22-cv-06924) to Baker’s opposition to Match Group’s Jan. 13 motion to dismiss (see 2302150002).

Baker alleges Match Group and its affiliated dating websites, including Tinder, collect, analyze and use unique biometric identifiers from people’s faces in photos uploaded to their apps and websites without disclosing or acknowledging the collection or requesting consent. Baker’s arbitration demand asserted two BIPA violations against Match Group services Tinder and OkCupid for maximum potential damages of $10,000 each.

The claims fall within the Illinois small claims court’s $10,000 jurisdictional limit and the Texas small claims court’s $20,000 limit, said the defendant. Baker countered Monday that the Illinois Supreme Court’s Feb. 17 opinion in Cothron v. White Castle System established that a separate claim accrues under BIPA each time a private entity scans or transmits an individual’s biometric identifier or information, entitling plaintiffs to recover $1,000 or $5,000 for each separate BIPA violation (see 2303070029). The Illinois high court’s new accrual method supports his argument that the amount in controversy exceeds the jurisdiction limit of small claims court, he said.

By filing his class action in Illinois Chancery Court, rather than an individual claim in small claims court as JAMS ordered, Baker “attempts to forum shop, rather than obtain redress for alleged wrongs,” said Match Group’s reply. Though he argues in his opposition response that small claims courts lack jurisdiction and Match Group’s revisions identifying National Arbitration and Media (NAM) as the chosen arbitral forum are “unenforceable,” he seeks no “declaratory or injunctive relief regarding these issues,” it said. “Nor could he do so here,” because his alternative dispute resolution (ADR) agreement with Match Group “provides that these questions may be resolved only in arbitration or small claims court,” it said.

Baker instead suggests the Illinois district court “lacks a procedural mechanism to dismiss this case,” said Match Group’s reply. “This is simply incorrect.” Match Group “cited numerous cases" making clear that dismissal under the Federal Arbitration Act or the doctrine of forum non conveniens "is proper in this situation,” it said. Baker doesn’t even address most of these cases, “and his efforts to distinguish others fall flat,” it said.

Baker’s argument his case may proceed in the Illinois district court despite the ADR agreement’s Texas forum-selection clause rests on his “meritless” assertion that the Supreme Court has made clear doesn’t apply where, “as here, there is a valid forum-selection clause,” said Match Group’s reply. The court should grant the motion and dismiss Baker’s claims, or, alternatively, transfer them to U.S. District Court for Northern Texas in Dallas, as the forum-selection clause in the ADR agreement demands, it said.

Baker’s argument that Match Group breached the ADR agreement by electing to litigate his individual claim in small claims court is “meritless,” said the defendant’s reply. The ADR agreement “expressly” gives both parties “the contractual right to elect to proceed in small claims court,” it said.

The plaintiff’s alternative argument, that Match Group breached the ADR agreement by amending it to change the arbitral forum to NAM, is “a red herring,” said the reply. The motion to dismiss should be granted regardless of whether the ADR agreement “specifies NAM or JAMS as the arbitral forum,” it said.

Baker incorrectly argues Match Group’s amendment somehow breached the ADR agreement “or the duty of good faith and fair dealing,” said the reply. “The amendment was mutual,” it said. Baker “expressly agreed” to Tinder’s modified terms of use, and he declined “to opt out of retroactive application” of the revised ADR agreement, it said. “These steps establish there was no unilateral amendment to the contract that might render its provisions illusory or warrant the application of the covenant of good faith and fair dealing.”