Plaintiffs Agreed to Arbitration Terms When Creating Accounts, Says Cox

Plaintiffs in a November privacy class action against Cox Media admitted in a first amended complaint (1:22-cv-04462) they accessed terms of service -- before filing their privacy class action -- agreeing to resolve all disputes through arbitration, said the company’s Monday motion to compel arbitration in U.S. District Court for Northern Georgia in Atlanta

Plaintiffs Edward Bienkowski of Duluth, Georgia, and Felecia Hawkins of Sandy Springs, Georgia, sued Cox in November, for violation of the Video Privacy Protection Act. Plaintiffs alleged Cox monetized its websites by “knowingly collecting and disclosing” their personal identifiable information (PII) to Facebook, including their Facebook IDs and the names of news clips they had viewed.

Cox’s Monday motion said plaintiffs agreed to its terms, “including mandatory arbitration, when they created their wsbtv.com accounts.” Bienkowski created two accounts with Cox Media, in 2011 and 2015. When creating the 2015 account, he checked a box affirming he had agreed to terms, which were hyperlinked above the registration button and contained a mandatory arbitration clause. Bienkowski focused on the 2011 account “presumably because, at that time, the Terms lacked a mandatory arbitration clause,” the motion said. Facts about the 2011 account “are of no moment” because the plaintiff agreed to arbitrate disputes when he created the 2015 account, the motion said.

Hawkins created an account in August, choosing to log in through Facebook on the wsbtv.com registration page. She was led to a screen informing her that Cox was requesting access to her name, Facebook profile picture and email address. She agreed Cox would receive ongoing access to information she shared on Facebook, and Facebook would record when Cox accessed the information, said the motion. A “bright blue link” to terms contained a mandatory arbitration clause, it said. Each plaintiff agreed “at least twice” to arbitrate any claims involving wsbtv.com, the motion said.

Instead of opposing Cox’s motion to compel arbitration, plaintiffs filed the amended complaint March 13 admitting they had accessed terms on Aug. 30, before the lawsuit was filed, said Cox’s motion. The amended complaint’s “bald denials” that plaintiffs were presented with an arbitration agreement or class waiver “are not entitled to any weight because they are contradicted by clear evidence of their notice and assent,” said the motion. The arbitration agreement also included a class action waiver, Cox said.

In the amended complaint, plaintiffs noted visitors to Cox’s websites aren’t given an opportunity to withdraw from or prohibit the disclosure of their PII or the video content they view. The disclosure of their PII and the video content they view are “not incident to [Cox’s] ordinary course of business,” such as for debt collection or request processing purposes, they argued. “The surreptitious disclosure” of PII paired with the video content that an individual views “is an outrageous invasion of privacy and would be offensive to a reasonable person.”