Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 1 of 34 PageID #:555
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`BENNETT WILCOSKY, MICHAEL
`GUNDERSON, and MICHAEL
`GUNDERSON as next friend of E.G., a
`minor, each individually, and on behalf
`of all others similarly situated,
`
`
`
`
`
`
`
`
`
`
`No. 19-cv-05061
`Judge Franklin U. Valderrama
`
`Plaintiffs,
`
`v.
`
`
`
`
`
`
`AMAZON.COM, INC. and
`AMAZON.COM SERVICES, INC.,
`
`
`Defendants.
`
`MEMORANDUM OPINION AND ORDER
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`Digital assistants are a part of everyday modern life. Based on voice
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`recognition technology, they tell us the weather forecast, play our favorite song, or
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`assist in the preparation of a meal. Digital assistants listen to and respond to users’
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`voice commands.
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`Bennett Wilcosky (Wilcosky), Michael Gunderson (Gunderson), and Michael
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`Gunderson as next friend of E.G., a minor, (E.G.; collectively, Plaintiffs) sued
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`Amazon.com, Inc. and Amazon.com Services, Inc. (collectively, Defendants or
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`Amazon), individually and on behalf of a putative class of similarly situated
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`individuals the Circuit Court of Cook County, Illinois. Amazon removed the case from
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`the Circuit Court of Cook County to this Court pursuant to the Class Action Fairness
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`

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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 2 of 34 PageID #:556
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`Act (CAFA), 28 U.S.C. § 1332(d)(2). R. 1, Removal Notice.1 Plaintiffs assert that
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`Amazon’s Alexa device, a digital assistant, has recorded and stored their
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`voiceprints—a biometric identifier—without their consent, in violation of the Illinois
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`Biometric Information Privacy Act (BIPA), 740 ILCS 14/1 et seq. R. 1-1, Compl.
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`In response to a Court2 order, the parties submitted memoranda on whether
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`Plaintiffs have alleged an injury-in-fact sufficient to establish standing under Article
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`III: Plaintiffs argue against standing and request that the Court remand their claims
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`to state court (R. 44, Pls.’ Standing Memo.) whereas Defendants argue Article III is
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`satisfied (R. 45, Defs.’ Standing Memo.). For the reasons described below, the Court
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`agrees with Defendants that it has subject matter jurisdiction over the case.
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`Defendants have moved the Court to Compel Arbitration and Dismiss
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`Plaintiffs’ Complaint, or in the Alternative, Stay Claims pursuant to Federal Rule of
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`Civil Procedure 12(b)(3).3 R. 16, Mot. Compel Arb. For the reasons set forth below,
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`the Court grants in part and denies in part Defendants’ Motion to Compel
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`Arbitration.
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`
`1Citations to the docket are indicated by “R.” followed by the docket number and, where
`necessary, a page or paragraph citation.
`2This case was previously assigned to Judge Gettleman, who ordered the parties to file briefs
`addressing Article III standing on February 19, 2020. R. 35. The case was reassigned to Judge
`Kness on April 27, 2020 (R. 38), who ordered that the parties still file the requested briefs
`despite the reassignment (R. 43). The case was reassigned to Judge Valderrama on
`September 28, 2020. R. 54.
`3Defendants simultaneously moved to dismiss Plaintiffs’ claims for lack of personal
`jurisdiction and for failure to statue a claim. R. 19, Mot. Dismiss. As discussed below, the
`Court denies the Motion to Dismiss as moot as to Bennett Wilcosky and Michael Gunderson.
`The Court terminates the Motion to Dismiss without prejudice as to Michael Gunderson as
`next friend of E.G., a minor, with leave to refile as described below, see infra Conclusion.
`2
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`

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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 3 of 34 PageID #:557
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`Background
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`
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`Amazon operates the “Alexa” voice based virtual assistant.4 Compl. ¶ 1. Alexa
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`listens to users, records users’ voices, and responds to the users’ voice commands
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`using speech and voice recognition technology. Id. ¶ 4. Alexa uses the users’ voice
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`recordings to answer the users’ questions and fulfills the users’ requests. Id. Amazon
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`offers Alexa services through several means, including Amazon’s Echo Smart
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`speakers and Fire tablets, as well as various third-party devices. Id. ¶ 3. Amazon
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`retains every voice recording created by the user and any individual who happens to
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`be speaking near the Alexa device. Id. ¶ 6. The Alexa device transmits all oral
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`communications it records to Amazon’s servers. Id. ¶ 28. Amazon then indefinitely
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`stores copies of all recordings on its own servers for continued use and analysis. Id.
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`
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`Amazon does not inform Alexa users in writing that Alexa is collecting
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`biometric information or biometric identifiers. Compl. ¶ 29. Nor does Amazon inform
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`bystanders—people who speak in the vicinity of Alexa devices but do not own Alexa
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`devices or have Alexa accounts—in writing that Alexa is collecting biometric
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`information or biometric identifiers. Id. ¶ 30.
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`
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`Amazon provides its products and services, including Alexa, to users subject to
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`Amazon’s Conditions of Use (COUs). R. 17-1, Buckley Decl. ¶ 3. A user must accept
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`Amazon’s COUs in order to purchase products and services from or through Amazon,
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`including purchasing an Alexa-capable device and/or registering an Alexa account.
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`4The following recitation of facts is excerpted from Plaintiffs’ Complaint (R. 1-1) and such
`facts are deemed to be true for the purposes of this motion. See Bell v. City of Chi., 835 F.3d
`736, 738 (7th Cir. 2016); Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
`3
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 4 of 34 PageID #:558
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`Id. No individual can be an Amazon user, including using Alexa, without first
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`agreeing to Amazon’s COUs. Id. At the checkout page, a customer is asked to review
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`and confirm their order by clicking a “Place your order button.” Id. ¶ 4. The check-out
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`page states: “By placing your order, you agree to Amazon.com’s privacy notice,
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`conditions of use and all of the terms found here.”5 Id.
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`Since August 2011, Amazon’s COUs have included an arbitration agreement
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`with a class action waiver provision. Buckley Decl. ¶ 7. The arbitration provision in
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`effect in 2014 provides, in part: “Any dispute or claim relating in any way to your use
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`of any Amazon Service, or to any products or services sold or distributed by Amazon
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`or through Amazon.com will be resolved by binding arbitration, rather than in
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`court … .” Id.
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`
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`In addition to Amazon COUs, Amazon has Alexa Terms of Use (TOUs), for
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`users of Alexa. Buckley Decl. ¶ 11. To set up an Alexa device, the user is prompted
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`either to sign into his or her Amazon account or create a new account. Id. When
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`signing in, the user is notified that by continuing in the process of activating Alexa,
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`the user agrees to Alexa’s TOUs, which are hyperlinked. Id.
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`
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`Section 3.6 of Alexa’s TOUs in effect on June 25, 2015, provided:
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`Disputes/Binding Arbitration. Any dispute or claim arising from or
`relating to this Agreement or Alexa is subject to the binding arbitration,
`governing law, disclaimer of warranties, limitation of liability, and all
`other terms in the Amazon.com Conditions of Use. By using Alexa, you
`agree to be bound by those terms.
`Buckley Decl. ¶ 15 (citing id., Exh. F, 2018 TOUs § 3.6; id., Exh. H, 2019 TOUs § 3.6).
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`5On Amazon’s website, the underlined text provides a hyperlink to the full COUs. Buckley
`Decl. ¶ 4.
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`4
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 5 of 34 PageID #:559
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`
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`Wilcosky alleges that as of June 25, 2019, he had not and never had been a
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`purchaser of any Alexa device, nor had he ever set up an Alexa account or downloaded
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`the Alexa application. Compl. ¶ 36. Nevertheless, Wilcosky claims that his voice has
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`been recorded without his consent by Alexa devices in Illinois numerous times. Id.
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`¶ 37. When Wilcosky spoke in proximity to an Alexa device while the Alexa device
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`was recording, Amazon recorded and stored Wilcosky’s voice in its databases and on
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`its servers. ¶ 38.
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`
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`Gunderson owns an Amazon Echo equipped with Alexa services. Compl. ¶ 46.
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`Gunderson also claims that his voice has been recorded without his consent by Alexa
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`devices in Illinois numerous times. Id. ¶ 47. Gunderson alleges that when he spoke
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`in proximity to an Alexa device while the Alexa device was recording, Alexa recorded
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`and stored Gunderson’s voice in its databases and on its servers, without his consent.
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`¶¶ 48, 50.
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`
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`E.G. is a minor who resides with her father, Gunderson. Compl. ¶ 55. E.G.’s
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`voice has been recorded by Alexa devices on several occasions without her consent.
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`Id. ¶ 56. When E.G. spoke in proximity to an Alexa device while the Alexa device was
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`recording, Amazon recorded and stored E.G.’s voice in its databases and on its
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`servers, without the consent or authorization of E.G.’s legally authorized
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`representative. Id. ¶¶ 57, 60.
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`
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`Plaintiffs filed suit against Defendants for violating BIPA, 740 ILCS 14/1 et
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`seq. In their first cause of action, Plaintiffs allege that Amazon, through its “Alexa”
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`voice-based virtual assistant, captured, collected, and stored their biometric
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`5
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 6 of 34 PageID #:560
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`identifiers (their voiceprints) without their consent and without providing Plaintiffs
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`written disclosures about the collection and storage of their voiceprints, in violation
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`of 740 ILCS 14/15(b). Compl. ¶¶ 70–75. In their second cause of action, Plaintiffs
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`claim that Defendants failed to publicly provide a retention schedule or guidelines for
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`permanently destroying the biometric identifiers or biometric information as
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`required under 740 ILCS 14/15(a). Id. ¶¶ 78–79. Defendants, in turn, have moved to
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`compel arbitration of and to dismiss Plaintiffs’ Complaint or in the alternative, to
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`stay Plaintiffs’ claims, pursuant to Federal Rule of Civil Procedure 12(b)(3). Mot.
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`Compel Arb. at 1.
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`Legal Standard
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`I.
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`Standing
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`The party who invokes jurisdiction bears the burden of establishing that
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`Article III standing exists. Bryant v. Compass Grp. USA, Inc., 958 F.3d 617, 620 (7th
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`Cir. 2020), as amended on denial of reh’g and reh’g en banc (June 30, 2020) (citing
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`Collier v. SP Plus Corp., 889 F.3d 894, 896 (7th Cir. 2018) (per curiam)). For cases
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`removed under traditional diversity jurisdiction, 28 U.S.C. § 1332(a), federal courts
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`interpret the removal statute narrowly and “resolv[e] any doubt in favor of the
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`plaintiff’s choice of forum in state court.” McGinnis v. United States Cold Storage,
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`Inc., 2019 WL 7049921, at *2 (N.D. Ill. Dec. 23, 2019) (citation omitted). But for cases
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`removed under CAFA—like this one—there is no presumption against removal.”
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`Roppo v. Travelers Com. Ins. Co., 869 F.3d 568, 578 n.22 (7th Cir. 2017)
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`6
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 7 of 34 PageID #:561
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`For a party to have “Article III standing, three requirements must be satisfied:
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`(1) she must have suffered an actual or imminent, concrete and particularized injury-
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`in-fact; (2) there must be a causal connection between her injury and the conduct
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`complained of; and (3) there must be a likelihood that this injury will be redressed by
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`a favorable decision.” Bryant, 958 F.3d at 620–21 (citing Lujan v. Defs. of Wildlife,
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`504 U.S. 555, 560–61 (1992)). “If at any time before final judgment it appears that
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`the district
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`court
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`lacks
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`subject matter
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`jurisdiction,
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`the
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`case shall be
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`remanded.” 28 U.S.C. § 1447(c) (emphasis added).
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`II.
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`Arbitration
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`A case may be also dismissed for lack of proper venue. FED. R. CIV. P. 12(b)(3).
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`A motion to dismiss “based on a contractual arbitration clause is appropriately
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`‘conceptualized as an objection to venue, and hence properly raised under Rule
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`12(b)(3).’” Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 807 (7th Cir.
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`2011) (quoting Auto. Mechs. Local 701 Welfare & Pension Funds v. Vanguard Car
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`Rental USA, Inc., 502 F.3d 740, 746 (7th Cir. 2007)). Dismissal is appropriate when
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`the forum selection clause of a contract requires arbitration in another district. HTG
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`Cap. Partners, LLC v. Doe, 2016 WL 612861, at *8 (N.D. Ill. Feb. 16, 2016) (citing
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`Cont’l Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005)). The plaintiff
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`bears the burden of establishing that venue is proper. Rotec Indus., Inc. v. Aecon Grp.,
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`Inc., 436 F. Supp. 2d 931, 933 (N.D. Ill. 2006). Under Rule 12(b)(3), the court is “not
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`obligated to limit its consideration to the pleadings nor to convert the motion to one
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`for summary judgment.” Nagel, 995 F. Supp. at 843 (a court may examine facts
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`7
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 8 of 34 PageID #:562
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`outside the complaint to determine whether venue is proper); see also Cont’l Cas. Co.,
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`417 F.3d at 733. The court must resolve factual conflicts in the parties’ submissions
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`and draw any reasonable inferences in the plaintiffs’ favor, unless they are
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`contradicted by the defendants’ affidavits. Miller, 2018 WL 4030590, at * 4 (citing
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`Nagel, 995 F. Supp. At 843).
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`
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`The Federal Arbitration Act (FAA) “reflects both a liberal federal policy
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`favoring arbitration . . . and the fundamental principle that arbitration is a matter of
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`contract.” Gupta v. Morgan Stanley Smith Barney, LLC, 934 F.3d 705, 710 (7th Cir.
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`2019) (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). Under
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`the FAA, arbitration agreements “‘shall be valid, irrevocable, and enforceable, save
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`upon such grounds as exist at law or in equity for the revocation of any contract.’”
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`Janiga v. Questar Cap. Corp., 615 F.3d 735, 740 (7th Cir. 2010) (quoting 9 U.S.C. § 2).
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`“Although it is often said that there is a federal policy in favor of arbitration, federal
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`law places arbitration clauses on equal footing with other contracts, not above them.”
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`Id.
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`The party seeking to compel arbitration has the burden of establishing an
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`agreement to arbitrate. 9 U.S.C. § 4; A.D. v. Credit One Bank, N.A., 885 F.3d 1054,
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`1063 (7th Cir. 2018). Once the party seeking to compel has done so, the party resisting
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`arbitration bears the burden of identifying a triable issue of fact on the purported
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`arbitration agreement. See Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002).
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`The resisting party’s evidentiary burden is like that of a party opposing summary
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`judgment. Id. “[A] party cannot avoid compelled arbitration by generally denying the
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`8
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 9 of 34 PageID #:563
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`facts upon which the right to arbitration rests; the party must identify specific
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`evidence in the record demonstrating a material factual dispute for trial.” Id. Like
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`summary judgment, the court views the evidence in the light most favorable to the
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`non-moving party and draws reasonable inferences in its favor. Id. If the party
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`opposing arbitration identifies a genuine issue of fact as to whether an arbitration
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`agreement was formed, “the court shall proceed summarily to the trial thereof.”
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`9 U.S.C. § 4; see Tinder, 305 F.3d at 735.
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`“[A]rbitration should be compelled if three elements are present: (1) an
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`enforceable written agreement to arbitrate, (2) a dispute within the scope of the
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`arbitration agreement, and (3) a refusal to arbitrate.” Scheurer v. Fromm Family
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`Foods LLC, 863 F.3d 748, 752 (7th Cir. 2017). Plaintiffs do not dispute that the third
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`element is met here, as they refuse to arbitrate their claims with Defendants. What
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`the parties dispute are the first and second elements, as Plaintiffs deny (1) the
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`existence of a valid written arbitration agreement between Plaintiffs and Amazon,
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`and (2) that the dispute falls within the scope of any purported arbitration agreement.
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`Analysis
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`The Illinois legislature passed BIPA in 2008 to regulate “the collection, use,
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`safeguarding, handling, storage, retention, and destruction of biometric identifiers
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`and information.” 740 ILCS 14/5(g); see also Liu v. Four Seasons Hotel, Ltd., 138
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`N.E.3d 201, 204 (Ill. App. Ct. 2019). “Biometric identifier” includes, among other
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`things, a voiceprint. 740 ILCS 14/10. “‘Biometric information’ means any information,
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`regardless of how it is captured, converted, stored, or shared based on an individual’s
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`9
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 10 of 34 PageID #:564
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`biometric identifier used to identify an individual.” Id. Biometric information is
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`particularly sensitive because unlike social security numbers, which can be changed
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`if necessary, biometric identifiers cannot be changed. Id. § 14/5(c). BIPA provides
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`“robust protections for the biometric information of Illinois residents.” Thornley v.
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`Clearview AI, Inc., 2021 WL 128170, at *1 (7th Cir. Jan. 14, 2021).
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`
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`Section 14/15(a) of BIPA requires private entities that possess biometric
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`information to develop a publicly available written policy that includes a retention
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`schedule and destruction guidelines. Under Section 14/15(b), private entities must (1)
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`inform the individual whose biometric information is being collected, that it is being
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`collected or stored; (2) inform the individual “in writing of the specific purpose and
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`length of term for which [the biometrics are] being collected, stored, and used;” and
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`3) receive a written release from the person. Bryant, 958 F.3d 617 at 619.
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`Here, Plaintiffs allege that the Defendants violated (1) Section 15(b) of BIPA
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`by failing to properly inform Plaintiffs in writing that their voiceprints were being
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`collected and stored and by failing to obtain Plaintiffs’ written release prior to any
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`such collection, use, or storage (Compl. ¶¶ 73–74); and (2) Section 15(a) of BIPA by
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`failing to maintain a publicly available “retention schedule or guidelines for
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`permanently destroying” Plaintiffs’ biometrics as required by BIPA. (Id. ¶ 79).
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`Plaintiffs argue that this case should be remanded to state court because the
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`Complaint does not allege an injury-in-fact under Section 15(a), and therefore all
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`claims should be remanded for purposes of efficiency and consistency. Pls.’ Standing
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`Memo. at 2. On the other hand, Defendants argue that Plaintiffs have alleged an
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`10
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 11 of 34 PageID #:565
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`injury-in-fact sufficient to establish standing under Article III over both their Section
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`15(b) and Section 15(a) claims. Defs.’ Standing Memo. at 1. The Court agrees with
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`Defendants and finds that both BIPA violations alleged in the complaint rise to the
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`level of a concrete and particularized injury for purposes of Article III standing.
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`Defendants argue that, even though this Court has subject matter jurisdiction
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`over its claims such that the case should not be remanded to state court, in light of
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`the arbitration provisions in Amazon’s COUs and Alexa’s TOUs, the case belongs in
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`arbitration, not in court. See R. 17, Memo. Compel. The Court agrees that Wilcosky
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`and Gunderson’s claims are subject to arbitration and grants Defendants’ Motion to
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`Compel Arbitration as to those two plaintiffs. However, it denies without prejudice
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`the Motion to Compel Arbitration as to E.G.’s claims and directs the parties to file
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`supplemental briefs addressing the equitable estoppel argument under Illinois law.
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`The Court addresses the jurisdictional issue of Article III standing before
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`reviewing the merits of Defendants’ Motion to Compel Arbitration.
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`I. Standing
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`Only the first element of Article III standing is at issue here: whether
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`Plaintiffs’ suffered an injury in fact. The injury in fact inquiry “asks whether the
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`plaintiff has suffered an invasion of a legally protected interest that is concrete and
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`particularized and actual or imminent, not conjectural or hypothetical. Fox v.
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`Dakkota Integrated Sys., LLC, 980 F.3d 1146, 1151–52 (7th Cir. 2020) (internal
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`citations and quotations omitted). An injury is “particularized” if it “affect[s] the
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`plaintiff in a personal and individual way.” Id. (quoting Lujan, 504 U.S. 555 at 560
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`11
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 12 of 34 PageID #:566
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`n.1). “A generalized grievance shared by all members of the public will not suffice.”
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`Id. (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342–44 (2006)).
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`A. Section 15(b)
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`Plaintiffs do not dispute that their Section 15(b) claim—that Amazon failed to
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`properly inform Plaintiffs in writing that their voiceprints were being collected and
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`stored and failed to obtain Plaintiffs’ written release prior to any such collection, use,
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`or storage (Compl. ¶¶ 73–74)—sufficiently alleges an injury in fact. Pls.’ Standing
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`Memo. at 2 (citing Bryant, 958 F.3d at 617). The Court agrees that the law in the
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`Seventh Circuit regarding BIPA Section 15(b) claims is clear after Bryant: “failure to
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`follow section 15(b) of the law leads to an invasion of personal rights that is both
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`concrete and particularized” that meets the criteria for Article III standing. Bryant,
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`958 F.3d at 619. Therefore, by alleging that Defendants failed to make the required
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`disclosures and failed to obtain Plaintiffs’ informed written consent before collecting
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`their biometric data (see Compl. ¶¶ 13, 28–34, 40–41, 50–51, 59–60, 73–74), Plaintiffs
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`sufficiently pled the “concrete injury BIPA intended to protect against, i.e. a
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`consumer’s loss of the power and ability to make informed decisions about the
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`collection, storage, and use of her biometric information.” Bryant, 958 F.3d at 627.
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`Plaintiffs have standing to pursue their Section 15(b) claims in federal court.
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`B. Section 15(a)
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`The parties dispute whether Plaintiffs have standing for their Section 15(a)
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`claim. The Seventh Circuit recently clarified when an alleged violation under Section
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`15(a) sufficiently alleges an injury in fact under Article III. In Fox, the Seventh
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`12
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 13 of 34 PageID #:567
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`Circuit reversed and remanded the district court’s remand of the plaintiff’s Section
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`15(a) claim to state court because “[u]nlike in Bryant, [plaintiff’s] Section 15(a) claim
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`does not allege a mere procedural failure to publicly disclose a data-retention policy”
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`but rather alleges:
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`a concrete and particularized invasion of her privacy interest in her
`biometric data stemming from [defendant’s] violation of the full panoply
`of its section 15(a) duties—the duties to develop, publicly disclose, and
`comply with data retention and destruction policies—resulting in the
`wrongful retention of her biometric data after her employment ended,
`beyond the time authorized by law.
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`980 F.3d at 1149.
`
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`Similarly to the plaintiff in Fox, here Plaintiffs allege not only that Amazon
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`fails to publish a retention and destruction schedule, but also that Amazon continues
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`to retain, use, and analyze their biometrics indefinitely. Compl. ¶¶ 4, 6, 9–10, 28, 35,
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`44, 49–50, 53, 57–58, 62. As the Seventh Circuit held, “an unlawful retention of a
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`person’s biometric data is as concrete and particularized an injury as an
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`unlawful collection of a person's biometric data.” Fox, 980 F.3d at 1155.
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`Plaintiffs argue only summarily that the Court does not have jurisdiction to
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`hear the merits of their Section 15(a) claims. Pls.’ Standing Memo. at 2. They cite
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`only two cases in support of this argument, one in their initial memorandum (id.
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`citing Bryant, 958 F.3d at 626), and another in a notice of supplemental authority (R.
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`58 citing Thornley, 2021 WL 128170, at *1). Neither Bryant nor Thornley support
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`Plaintiffs’ position. As Defendants note in their own notice of supplemental authority,
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`after the filing of Plaintiffs’ memorandum, the Seventh Circuit amended its opinion
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`in Bryant, explaining that the plaintiff lacked standing to pursue her Section 15(a)
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`13
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 14 of 34 PageID #:568
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`claim because she alleged only a violation of the provision of Section 15(a) that
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`requires publishing a written retention schedule and guidelines for destroying
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`biometric identifiers. R. 52 at 2 (citing Bryant, 958 F.3d at 626). The Court offered
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`Plaintiffs an opportunity to file a response regarding the effect of the supplemental
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`authority cited by Defendants (R. 53), but Plaintiffs did not do so. And as discussed
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`above, the Seventh Circuit has subsequently clarified that a plaintiff sufficiently
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`alleges an injury in fact under Section 15(a) if she alleges that the defendant
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`unlawfully retained her biometric data, Fox, 980 F.3d at 1155, as Plaintiffs have
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`alleged in their Complaint.
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`Thornley does not change the analysis either. In that case, the plaintiffs—
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`seeking to avoid removal—were careful to allege only a bare procedural violation,
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`stating that they “suffered no injury from Defendants’ violation of Section 15(c) of
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`BIPA other than statutory aggrievement.” Thornley, 2021 WL 128170, at *5 (citing
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`complaint ¶ 38). The Seventh Circuit, in affirming the district court’s remand order,
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`agreed with the district court that “a plaintiff is the master of her own complaint”
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`and because the plaintiffs were careful to allege only a general, regulatory violation,
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`they did not have Article III standing to pursue the claims in federal court. Id. at *5,
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`*7. That is not the case here: Plaintiffs alleged that Amazon unlawfully retained all
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`of their biometric data in violation of Section 15(a), which is sufficiently
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`particularized to satisfy Article III. Thornley, 2021 WL 128170, at *4 (“We thus held
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`that ‘an unlawful retention of a person's biometric data is as concrete and
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`particularized an injury as an unlawful collection of a person's biometric data.’”)
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 15 of 34 PageID #:569
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`(quoting Fox, 980 F.3d at 1155). Therefore, the Court also possesses Article III
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`standing over Plaintiffs’ Section 15(a) claim.
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`II. Arbitration
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`Because this Court has subject matter jurisdiction over Plaintiffs’ claims, it
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`can now proceed to address the merits of the case, including Defendants’ Motion to
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`Compel Arbitration. It begins with the two adult Plaintiffs, Wilcosky and Gunderson.
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`A. Wilcosky and Gunderson
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`1. Existence of a Valid Arbitration Agreement
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`The threshold issue before the Court is whether a valid arbitration agreement
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`exists between the parties. In determining whether a valid arbitration agreement
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`exists between parties, federal courts apply the state law principles of contract
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`formation. Gupta v. Morgan Stanley Smith Barney, LLC, 934 F. 3d 705, 711 (7th Cir.
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`2019). Here, Amazon’s COUs include a choice-of-law provision electing Washington
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`state law. Buckley Decl. ¶ 8 (citing id., Exh. A, 2018 COUs). Plaintiffs, on the other
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`hand, assert that Illinois law applies. R. 29, Resp. at 3 n.1 (citing Compl. generally).
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`Yet, neither party substantively addresses the choice-of-law issue in their briefs, but
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`rather relegates the issue to footnotes. Id.; Memo. Compel at 7 n.5. The Court, though,
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`has not found any differences between Washington law and Illinois law regarding
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`contract formation principles. Indeed, Defendants state as much. Memo. Compel at 7
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`n.5 (citing Barron v. Ford Motor Co. of Canada, 965 F.2d 195, 197 (7th Cir. 1992)).
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`Nor do the parties challenge application of Illinois law, as the forum state, to resolve
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`15
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 16 of 34 PageID #:570
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`this dispute. Therefore, the Court applies Illinois law notwithstanding the choice-of-
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`law provision in Amazon’s COUs.
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`
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`An enforceable contract under Illinois law requires an offer, acceptance,
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`consideration, and mutual assent. Nat’l Prod. Workers Union Ins. Trust v. Cigna
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`Corp., 665 F.3d 897, 901 (7th Cir. 2011). Although arbitration agreements are subject
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`to generally applicable contract defenses, Plaintiffs do not contend that Amazon’s
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`arbitration provision was procured by fraud, executed under duress, or is
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`unconscionable. Instead, Plaintiffs argue that Amazon has failed to meet its burden
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`of showing a valid agreement to arbitrate between Wilcosky and Amazon, on the one
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`hand, and Gunderson and Amazon, on the other hand. Resp. at 8–15. Their argument
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`rests on the claim that Amazon has failed to establish a prima facie case that it made
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`a contract offer to them. Id. at 9.
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`
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`Amazon’s COUs contain an arbitration agreement that is written in English
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`and placed under a bold and capitalized heading “Disputes,” with key provisions in
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`bold font. Buckley Decl. ¶ 7; id., Exh. A, 2018 COUs; id., Exh. B, 2012 COUs.6 The
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`arbitration agreement also provides instructions regarding how to commence
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`arbitration. 2018 COUs. The agreement provides that the arbitration will be
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`conducted by the American Arbitration Association (AAA) under its rules, including
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`the AAA’s Supplementary Procedures for Consumer-Related Disputes (AAA Rules),
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`6Defendants attach two versions of Amazon’s COUs to Buckley’s declaration, one updated on
`May 21, 2018 (2018 COUs) and one updated on December 5, 2012 (2012 COUs). Because the
`“Disputes” sections in the two COUs are identical, the Court cites only to the 2018 COUs in
`this Opinion unless otherwise specified. Similarly, six versions of Alexa’s TOUs are attached
`to Buckley’s declaration, but the Court cites only to the 2019 version. See Buckley Decl. Exhs.
`C–H.
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`
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`16
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 17 of 34 PageID #:571
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`and provides the AAA’s website and phone number. Id. As noted above, Alexa’s TOUs
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`contain a bolded section titled “Disputes/Binding Arbitration” which states that any
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`dispute or claim arising out of the Agreement is subject to all terms in the COUs and
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`contains a hyperlink to the COUs. Buckley Decl. Exh. H, 2019 TOUs, § 3.6. Plaintiffs
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`do not challenge the existence or validity of the arbitration agreement. Instead,
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`Plaintiffs maintain that they did not consent to the arbitration agreement through
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`either the COUs or the TOUs.
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`
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`Wilcosky7 maintains that he never purchased a device containing the Alexa
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`voice assistant, and he never installed the Amazon Alexa application on a
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`smartphone. R. 29-1, Wilcosky Decl. ¶¶ 4–5. Wilcosky asserts that Amazon never
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`presented him with any contract that includes an arbitration agreement, nor has
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`Wilcosky seen any such contract. Wilcosky Dec. ¶¶ 6– 7. Indeed, notes Wilcosky,
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`Amazon concedes that it has no record of Wilcosky installing the Alexa application
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`on any device. Resp. 9–10 (citing R. 29-3, Amazon Resp. RFP Nos. 2–4; R. 29-4,
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`Amazon Prod. 1–8.) Wilcosky argues that as a result, Amazon has not met its burden
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`of showing offer, acceptance, and consideration as to the COUs or the TOUs. Resp. at
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`10. Although he adopts Wilcosky’s arguments, Gunderson does not submit a
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`declaration in support of his Response, and therefore he does not deny on the record
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`that he was presented with an arbitration agreement via the COUs or TOUs.
`
`
`7Gunderson makes the same arguments advanced by Wilcosky. Resp. at 15 (“For the reasons
`articulated for Wilcosky … above, Amazon has similarly failed to show it presented a contract
`containing an arbitration clause to Plaintiff Gunderson.”).
`17
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`Case: 1:19-cv-05061 Document #: 60 Filed: 02/05/21 Page 18 of 34 PageID #:572
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`a. Conditions of Use
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`
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`Although Plaintiffs insist that they did not assent to the COUs, the evidence
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`belies that contention. In support of their Motion, Defendants submit the Declaration
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`of Brian Buckley, Associate General Counsel at Amazon.com. Buckley attests that
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`Amazon provides its products and services, including Alexa, to users subject to
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`Amazon’s COUs. Buckley Decl. ¶ 3. A user must accept Amazon’s COUs in order to
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`purchase products and services from or through Amazon, including but not limited to
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`purchasing an Alexa-capable device and/or registering an Alexa account.8 Id. When
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`determining whether an individual assented to an online rather than physical
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`contract, a court must “look more closely at both the law and to the facts to see if a
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`reasonable person in [the customer’s] shoes would have realized that he was
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`assenting to the [contrac