throbber
Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 1 of 19 Page ID #82
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
`
`
`METROPLEX COMMUNICATIONS,
`INC., on behalf of itself and all others
`similarly situated,
`
`
`v.
`
`
`META PLATFORMS, INC.,
`
`Plaintiff,
`
`Defendant.
`
`
`Case No. 3:22-cv-1455
`
`Hon. David W. Dugan
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`DEFENDANT META PLATFORM, INC.’S MEMORANDUM IN SUPPORT OF ITS
`MOTION TO COMPEL ARBITRATION AND STAY LITIGATION
`
`
`
`
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 2 of 19 Page ID #83
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ...............................................................................................................1
`
`BACKGROUND .................................................................................................................2
`
`A.
`
`B.
`
`C.
`
`Meta’s Commercial Terms Include An Arbitration Clause .....................................2
`
`Plaintiff Agreed To The Commercial Terms ...........................................................4
`
`Plaintiff Sued Meta Notwithstanding The Parties’ Arbitration Agreement .............6
`
`LEGAL STANDARD ..........................................................................................................7
`
`ARGUMENT .......................................................................................................................8
`
`A.
`
`The FAA Requires Enforcement Of Plaintiff’s Arbitration Agreement ..................8
`
`1.
`
`Plaintiff Agreed To The Arbitration Clause In Meta’s Commercial
`Terms ...........................................................................................................9
`Plaintiff’s Claims Fall Within The Arbitration Agreement .......................10
`Plaintiff Has Not Alleged That The Arbitration Clause Is
`Unenforceable ............................................................................................12
`The FAA Requires A Stay Of This Action Pending Arbitration ...........................13
`
`2.
`3.
`
`B.
`
`CONCLUSION ..................................................................................................................13
`
`
`
`i
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 3 of 19 Page ID #84
`
`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`Page(s)
`
`AT&T Mobility LLC v. Concepcion,
`563 U.S. 333 (2011) ...................................................................................................................8
`
`Contl. Cas. Co. v. Am. Nat. Ins. Co.,
`417 F.3d 727 (7th Cir. 2005) .....................................................................................................8
`
`Faulkenberg v. CB Tax Franchise Sys., LP,
`637 F.3d 801 (7th Cir. 2011) ............................................................................................. 10-11
`
`First Options of Chicago, Inc. v. Kaplan,
`514 U.S. 938 (1995) ...................................................................................................................8
`
`Forness v. Cross County Bank, Inc.,
`05-CV-417-DRH, 2006 WL 726233 (S.D. Ill. Mar. 20, 2006) ...............................................12
`
`Friends for Health: Supporting N. Shore Health Ctr. v. PayPal, Inc.,
`No. 17 CV 1542, 2018 WL 2933608 (N.D. Ill. June 12, 2018).................................................7
`
`Gilmer v. Interstate/Johnson Lane Corp.,
`500 U.S. 20 (1991) ...................................................................................................................13
`
`Gore v. Alltel Commc’ns, LLC,
`666 F.3d 1027 (7th Cir. 2012) .............................................................................................9, 11
`
`Gorny v. Wayfair Inc.,
`No. 18 C 8259, 2019 WL 2409595 (N.D. Ill. June 7, 2019) ...................................................10
`
`Green Tree Fin. Corp.-Ala v. Randolph,
`531 U.S. 79 (2000) .....................................................................................................................7
`
`Kangapoda Corp. v. Facebook Inc.,
`No. 21-cv-09168-JXN-AME (D.N.J. Dec. 13, 2021) ..........................................................9, 13
`
`Kiefer Specialty Flooring, Inc. v. Tarkett, Inc.,
`174 F.3d 907 (7th Cir. 1999) .....................................................................................................9
`
`Lag Shot LLC v. Facebook, Inc.,
`545 F. Supp. 3d 770 (N.D. Cal. 2021) .................................................................................9, 13
`
`Miracle-Pond v. Shutterfly, Inc.,
`19 CV 04722, 2020 WL 2513099 (N.D. Ill. May 15, 2020) ...................................................10
`
`ii
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 4 of 19 Page ID #85
`
`
`
`Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp.,
`460 U.S. 1 (1983) .......................................................................................................................7
`
`O’Neil v. Comcast Corp.,
`No. 18 C 4249, 2019 WL 952141 (N.D. Ill. Feb. 27, 2019) ....................................................12
`
`Pain Treatment Ctrs. of Illinois v. SpectraLab Sci., Inc.,
`No. 15-CV-01012, 2017 WL 4340125 (N.D. Ill. Sept. 30, 2017) ...........................................12
`
`Sgouros v. TransUnion Corp.,
`817 F.3d 1029 (7th Cir. 2016) ...................................................................................................8
`
`Tinder v. Pinkerton Sec.,
`305 F.3d 728 (7th Cir. 2002) .....................................................................................................7
`
`Tory v. First Premier Bank,
`10 C 7326, 2011 WL 4478437 (N.D. Ill. Sept. 26, 2011) ........................................................13
`
`Underground Sols., Inc. v. Palermo,
`No. 13 C 8407, 2014 WL 4703925 (N.D. Ill. Sept. 22, 2014) ...................................................2
`
`Wilcosky v. Amazon.com, Inc.,
`517 F. Supp. 3d 751 (N.D. Ill. 2021) .......................................................................................10
`
`Zurich Am. Ins. Co. v. Watts Indus., Inc.,
`466 F.3d 577 (7th Cir. 2006) .................................................................................................7, 8
`
`STATUTES
`
`9 U.S.C. §§ 1-16 ........................................................................................................................8, 13
`
`15 U.S.C. § 1125 ..............................................................................................................................6
`
`815 ILCS 510/1 ................................................................................................................................6
`
`
`
`iii
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 5 of 19 Page ID #86
`
`
`I.
`
`INTRODUCTION
`
`Plaintiff Metroplex Communications Inc.’s (“Plaintiff’s”) false advertising case is flawed
`
`for many reasons, but first among them is that it belongs in arbitration, not this forum. Plaintiff is
`
`a local advertising company that manages multiple Facebook Pages to promote its local media
`
`properties, including its AdVantage news site and 107.1 FM radio station. See Declaration of
`
`Jennifer Pricer (“Pricer Decl.”) ¶¶ 21-27; Dkt. 1 ¶ 9.1 Facebook Pages allow businesses to create
`
`a presence on Facebook to connect with their customers, and businesses like Plaintiff can advertise
`
`on Facebook to promote their Pages. See Pricer Decl. ¶¶ 3, 8. Plaintiff has done exactly that—in
`
`the past three years alone, Plaintiff has advertised on Facebook dozens of times. See id. ¶¶ 28-29.
`
`Like all advertising purchasers, Plaintiff accepted Meta’s Commercial Terms of Service
`
`(“Commercial Terms”) when it purchased ads. See id. ¶¶ 3-7, 9-15 & Exs. 1-13. And those
`
`Commercial Terms contain a mandatory arbitration provision that broadly applies to any
`
`commercial claims “arising out of or relating to any access or use of the Meta Products for business
`
`or commercial purposes,” including “using ads [or] managing a Page.” Exs. 10-13. Meta
`
`advertising is the core of Plaintiff’s dispute, namely, whether Meta made materially false or
`
`misleading statements that lured advertisers to use Meta’s services for advertising, rather than
`
`Plaintiff’s local news outlets and radio stations. The arbitration provision is enforceable here.
`
`Accordingly, this Court should compel Plaintiff to arbitrate this dispute under the Federal
`
`Arbitration Act (“FAA”), and stay all proceedings.
`
`
`1 All exhibits cited herein are attached to the Declaration of Jennifer Pricer in Support of Meta’s
`Motion To Compel Arbitration And Stay Litigation.
`
`1
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 6 of 19 Page ID #87
`
`II.
`
`BACKGROUND
`
`
`
`A. Meta’s Commercial Terms Include An Arbitration Clause
`
`Meta’s Commercial Terms require commercial users (including advertisers) to arbitrate
`
`any commercial dispute with Meta. See Ex. 10 (current terms dated Jan. 4, 2022) § 5.c.; Ex. 11
`
`(dated Sept. 27, 2021) § 5.c.; Ex. 12 (dated Aug. 31, 2020) § 5.c.; Ex. 13 (dated May 25, 2018)
`
`§ 4.b. The requirement applies with equal force to any third parties on whose behalf commercial
`
`users access or use Meta Products.2 The current Commercial Terms state that “You agree to
`
`arbitrate Commercial Claims between you and Meta Platforms, Inc.,” i.e. “any claim, cause of
`
`action, or dispute that arises out of or relates to any access or use of the Meta Products for business
`
`or commercial purposes.” Ex. 10 (Jan. 4, 2022) § 5.b-c (emphases added).3 All versions of the
`
`Commercial Terms since May 20184 have included substantially similar language. See Ex. 11
`
`(Sept. 27, 2021) § 5.b-c; Ex. 12 (Aug. 31, 2020) § 5.b-c; Ex. 13 (May 25, 2018) § 4.b. The
`
`Commercial Terms further provide that “[b]usiness or commercial purposes include using ads,
`
`selling products, developing apps, managing a Page, managing a Group for business purposes, or
`
`using our measurement services regardless of the entity type.” Ex. 10 (Jan. 4, 2022) at 1; see also
`
`
`2 The Commercial Terms provide that “any third party on whose behalf you access or use any Meta
`Product for any business or commercial purpose will abide by the applicable terms of use,
`including these Commercial Terms, the Meta Terms of Service (‘Terms’), and any applicable
`supplemental terms, and you represent and warrant that you have the authority to bind that third
`party to such terms.” Ex. 10 (Jan. 4, 2022) at 1; see also Ex. 11 (Sept. 27, 2021) at 1; Ex. 12 (Aug.
`31, 2020) at 1; Ex. 13 (May 25, 2018) at 1.
`
`3 “Meta Products” or “Products” is defined in Meta’s Terms of Service as “Facebook, Messenger,
`and the other products, features, apps, services, technologies, and software we offer.” Ex. 1 (July
`26, 2022) at 1; see also Ex. 2 (Jan. 4, 2022) at 1; Ex. 3 (Oct. 22, 2020) at 1; Ex. 4 (July 31, 2019)
`at 1; Ex. 5 (Apr. 19, 2018) at 1.
`4 Plaintiff’s claims are subject to a three-year statute of limitations, so Meta’s Commercial Terms
`have included an arbitration provision for the entire relevant time period. See Underground Sols.,
`Inc. v. Palermo, No. 13 C 8407, 2014 WL 4703925, at *2 (N.D. Ill. Sept. 22, 2014) (three year
`limitations period for Lanham Act and Illinois Uniform Deceptive Trade Practices Act claims).
`
`2
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 7 of 19 Page ID #88
`
`
`
`Ex. 11 (Sept. 27, 2021) at 1; Ex. 12 (Aug. 31, 2020) at 1; Ex. 13 (May 25, 2018) at 1.
`
`The arbitration clause is flagged at the very outset of the Commercial Terms, in the
`
`introductory paragraphs, which state:
`
`As more fully described below, if you reside in the United States or
`your business is located in the United States, these Commercial
`Terms require the resolution of most disputes between you and us
`by binding arbitration on an individual basis; class actions and jury
`trials are not permitted.
`
`Ex. 10 (Jan. 4, 2022) at 1 (emphasis added); see also Ex. 11 (Sept. 27, 2021) at 1; Ex. 12 (Aug.
`
`31, 2020) at 1; Ex. 13 (May 25, 2018) at 1. The full arbitration clause is conspicuously located in
`
`a section of the Commercial Terms titled “Disputes.” Ex. 10 (Jan. 4, 2022) § 5; Ex. 11 (Sept. 27,
`
`2021) § 5; Ex. 12 (Aug. 31, 2020) § 5; Ex. 13 (May 25, 2018) § 4.
`
`The Commercial Terms also provide commercial users with the right to continue using
`
`Facebook (including placing ads) without being bound by the arbitration clause, but doing so
`
`requires that the user notify Meta within 30 days of their first acceptance:
`
`If you do not wish to be bound by this provision (including its
`waiver of class and representative claims), you must notify us as set
`forth below within 30 days of the first acceptance date of any
`version of these Commercial Terms containing an arbitration
`provision. Your notice to us under this Section 5.c. must be
`submitted to the address here: Meta Platforms, Inc., 1601 Willow
`Rd., Menlo Park, CA 94025.
`
`Ex. 10 (Jan. 4, 2022) § 5.c.ii. (emphasis added); see also Ex. 11 (Sept. 27, 2021) § 5.c.ii.; Ex. 12
`
`(Sept. 27, 2021) § 5.c.ii.; Ex. 13 (May 25, 2018) § 4.
`
`In addition to requiring that commercial users (including advertisers) arbitrate commercial
`
`claims against Meta, the Commercial Terms provide that commercial users (and Meta) waive their
`
`rights to a jury trial and to participate in a class action:
`
`We and you agree that, by entering into this arbitration provision,
`all parties are waiving their respective rights to a trial by jury or to
`participate in a class or representative action. THE PARTIES
`
`3
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 8 of 19 Page ID #89
`
`
`
`AGREE THAT EACH MAY BRING COMMERCIAL CLAIMS
`AGAINST THE OTHER ONLY IN ITS INDIVIDUAL
`CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER
`IN ANY PURPORTED CLASS, REPRESENTATIVE, OR
`PRIVATE ATTORNEY GENERAL PROCEEDING. You may
`bring a Commercial Claim only on your own behalf and cannot
`seek relief that would affect other parties. If there is a final judicial
`determination that any particular Commercial Claim (or a request
`for particular relief) cannot be arbitrated according to the limitations
`of this Section 5.c, then only that Commercial Claim (or only that
`request for relief) may be brought in court. All other Commercial
`Claims (or requests for relief) will remain subject to this Section
`5.c….
`
`Ex. 10 (Jan. 4, 2022) § 5.c.ii (emphasis added). All versions of the Commercial Terms in effect
`
`since May 2018 have included substantially similar language. See Ex. 11 (Sept. 27, 2021) § 5.c.ii.;
`
`Ex. 12 (Sept. 27, 2021) § 5.c.ii; Ex. 13 (May 25, 2018) § 4.b.
`
`B.
`
`Plaintiff Agreed To The Commercial Terms
`
`Meta has located records for two Facebook Pages for two of Plaintiff’s (Metroplex
`
`Communications Inc.’s) local news outlets, AdVantage news and the 107.1 FM radio station. See
`
`Dkt. 1 ¶ 9; Pricer Decl. ¶¶ 22-27. Metroplex manages both Pages and has purchased dozens of ads
`
`from Meta in the past three years to promote its local news outlets. See Pricer Decl. ¶¶ 22-27. In
`
`order to purchase each of those ads, Plaintiff was required to confirm at the time it placed each of
`
`the ads that it agreed to Meta’s Terms of Service, including the Commercial Terms containing the
`
`arbitration provision. See id. ¶¶ 9-15.
`
`Between October 2019 and March 2021, each time an advertiser purchased an ad, the
`
`advertiser encountered a screen with a button labeled “Confirm.” Id. ¶ 11. Immediately
`
`underneath this button was the following language: “By clicking ‘Confirm,’ you agree to
`
`Facebook’s Terms of Service including your obligations to comply with the Self-Serve Ad Terms,
`
`the Commercial Terms, and the Facebook Advertising Policies.” Id. ¶ 11 & Ex. 6. This screen
`
`highlighted the arbitration clause: “[I]f you reside in the US or your business is located in the US,
`
`4
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 9 of 19 Page ID #90
`
`
`
`[this] requires the resolution of most disputes by binding arbitration on an individual basis.” Id.
`
`¶ 12 & Ex. 6. A screenshot of the advertiser’s view is below:
`
`Each policy mentioned on this screen, including the Commercial Terms, was hyperlinked
`
`and in blue font. Id. ¶ 11. An advertiser purchasing an ad during this time could not do so without
`
`clicking the “Confirm” button (id.), thus manifesting agreement to these policies, including the
`
`Commercial Terms. See Exs. 10-13.
`
`On March 19, 2021, the Ads Manager page changed slightly. Since that date, a user
`
`purchasing an ad encounters a button labeled “Publish.” Id. ¶¶ 13-15 & Ex. 7-9. Immediately
`
`above and to the left of this button is the statement: “By clicking ‘Publish,’ you agree to Facebook’s
`
`Terms and Advertising Guidelines.” Id. ¶¶ 13-15 & Ex. 7-9. The following screenshot illustrates
`
`the change:
`
`The phrase “Terms and Advertising Guidelines” is a hyperlink that, if pressed, drops down
`
`a disclosure substantively identical to the prior one. The current disclosure states: “By clicking
`
`‘Publish,’ you agree to the Facebook Terms of Service, including your obligation to comply with
`
`the Self-serve ad terms, the Meta Business Tools terms, the Commercial terms, and the Meta
`
`5
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 10 of 19 Page ID #91
`
`
`
`Advertising Policies.” Id. ¶ 15 (emphasis added); see also Ex. 9. A screenshot of this disclosure
`
`is below:
`
`Each policy mentioned on this screen is hyperlinked and in blue font to stand out from the default
`
`black text. Id. ¶ 15.
`
`C.
`
`Plaintiff Sued Meta Notwithstanding The Parties’ Arbitration Agreement
`
`Plaintiff filed this action on July 8, 2022, despite acknowledging before placing ads its
`
`agreement to arbitrate any Commercial Claims, including any claims related to “using ads” and
`
`“managing a Page.” See id. ¶¶ 9-15 & Exs. 10-13.
`
`Plaintiff alleges claims under the Lanham Act (15 U.S.C. § 1125(a)) and the Illinois
`
`Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq.). Dkt 1. ¶¶ 206-26. Both relate
`
`to the use of Facebook for ads: Plaintiff alleges that Meta lured advertisers to place ads on
`
`Facebook instead of on Plaintiff’s local news outlets by overestimating its global user numbers
`
`and the audience sizes for advertisers’ ad campaigns. See id. ¶¶ 6-8, 121, 188, 209, 215. Yet
`
`Plaintiff itself was placing ads on Facebook even after the allegations about overestimations were
`
`publicized in a separate lawsuit filed in August 2018 alleging that advertisers overpaid for
`
`Facebook ads because they were misled by “inflated” Potential Reach estimates that included false
`
`6
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 11 of 19 Page ID #92
`
`
`
`and duplicate accounts. See DZ Reserve v. Meta Platforms, Inc., No. 18-cv-04978-JD (N.D. Cal.
`
`Aug. 15, 2018), Dkt. 1 ¶¶ 5, 49, 74, 88, 92, 94.
`
`Plaintiff purports to represent a putative class of “[a]ll persons (including entities) in the
`
`United States who, during the Class Period, (a) operated a website or phone app and (b) sold
`
`advertisements to third-parties to display on such website or app,” and the putative subclass as
`
`“Class members who are Illinois citizens.” Dkt. 1 ¶¶ 194-95. Plaintiff seeks monetary relief in
`
`the form of “Meta’s profits,” as well as various injunctive relief, including an order “enjoining
`
`Meta from continuing the unlawful practices as set forth in [the Complaint] and ordering Meta to
`
`engage in a corrective advertising campaign.” Id. ¶ 219 & Prayer for Relief.
`
`III. LEGAL STANDARD
`
`The party seeking arbitration must prove the existence of “an agreement to arbitrate,”
`
`Zurich Am. Ins. Co. v. Watts Indus., Inc., 466 F.3d 577, 580 (7th Cir. 2006), and “the party resisting
`
`arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration,” Green
`
`Tree Fin. Corp.-Ala v. Randolph, 531 U.S. 79, 91 (2000). See also Tinder v. Pinkerton Sec., 305
`
`F.3d 728, 735 (7th Cir. 2002) (holding that a “party opposing arbitration must identify a triable
`
`issue of fact concerning the existence of the agreement”). “[A] party cannot avoid compelled
`
`arbitration by generally denying the facts upon which the right to arbitration rests; the party must
`
`identify specific evidence in the record demonstrating a material factual dispute for trial.” Id. The
`
`court may consider “exhibits and affidavits” in deciding whether the existence of an arbitration
`
`agreement has been proven. Friends for Health: Supporting N. Shore Health Ctr. v. PayPal, Inc.,
`
`No. 17 CV 1542, 2018 WL 2933608, at *3 (N.D. Ill. June 12, 2018). “Just as in summary judgment
`
`proceedings,” the non-movant “must identify specific evidence in the record demonstrating a
`
`material factual dispute for trial.” Tinder, 305 F.3d at 735. “[A]ny doubts concerning the scope
`
`7
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 12 of 19 Page ID #93
`
`
`
`of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Memorial Hosp. v.
`
`Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). Where a dispute is subject to arbitration, the
`
`district court “shall on application of one of the parties stay the trial of the action until such
`
`arbitration has been had.” 9 U.S.C. § 3.
`
`IV. ARGUMENT
`
`A.
`
`The FAA Requires Enforcement Of Plaintiff’s Arbitration Agreement
`
`The FAA governs the enforcement of arbitration agreements and embodies a strong policy
`
`in favor of arbitration. 9 U.S.C. §§ 1-16; see also Ex. 10 § 5.c.ii. (providing that the FAA “governs
`
`the interpretation and enforcement of this arbitration provision”). Section 2 of the FAA provides
`
`that any written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such
`
`grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The “purpose
`
`of the FAA . . . is to ensure the enforcement of arbitration agreements according to their terms so
`
`as to facilitate streamlined proceedings,” and Section 2 reflects a “liberal federal policy favoring
`
`arbitration agreements, notwithstanding any state substantive or procedural policies to the
`
`contrary.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344, 346 (2011) (citation omitted).
`
`A motion to compel arbitration should be granted if (1) the plaintiff entered into an
`
`agreement to arbitrate, and (2) the dispute falls within the scope of the arbitration agreement. See
`
`Zurich, 466 F.3d at 580. In answering the threshold question of whether there is an agreement to
`
`arbitrate, federal courts look to “state law principles governing contract formation.” Contl. Cas.
`
`Co. v. Am. Nat. Ins. Co., 417 F.3d 727, 730 (7th Cir. 2005) (citing First Options of Chicago, Inc.
`
`v. Kaplan, 514 U.S. 938, 944 (1995)). Under Illinois law, formation of a contract requires “mutual
`
`assent,” which turns on whether the contracting party has reasonable notice of the terms of the
`
`agreement. Sgouros v. TransUnion Corp., 817 F.3d 1029, 1034 (7th Cir. 2016) (holding that for
`
`8
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 13 of 19 Page ID #94
`
`
`
`online agreements, the relevant inquiry is whether “web pages presented to the consumer
`
`adequately communicate all the terms and conditions of the agreement, and whether the
`
`circumstances support the assumption that the purchaser receives reasonable notice of those
`
`terms”). Where “the parties have a contract that provides for arbitration of some issues between
`
`them, any doubt concerning the scope of the arbitration clause is resolved in favor of arbitration
`
`as a matter of federal law,” and “a court may not deny a party’s request to arbitrate an issue ‘unless
`
`it may be said with positive assurance that the arbitration clause is not susceptible of an
`
`interpretation that covers the asserted dispute.” Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027,
`
`1032 (7th Cir. 2012) (quoting Kiefer Specialty Flooring, Inc. v. Tarkett, Inc., 174 F.3d 907, 909
`
`(7th Cir. 1999)).
`
`Here, Plaintiff agreed to arbitrate commercial disputes with Meta, including any dispute
`
`related to advertising on Facebook; this dispute falls within the scope of the arbitration agreement.
`
`Plaintiff has not alleged and cannot allege the arbitration agreement is unenforceable.
`
`Accordingly, the Court should compel Plaintiff to resolve its claims through arbitration.
`
`1.
`
`Plaintiff Agreed To The Arbitration Clause In Meta’s Commercial Terms
`
`The parties agreed to arbitrate commercial disputes. Plaintiff accepted the Commercial
`
`Terms each time it purchased ads from Meta, which requires advertisers to confirm before an ad
`
`is placed that they agree to the Commercial Terms—and specifically tells advertisers that the
`
`Commercial Terms “require[] the resolution of most disputes by binding arbitration on an
`
`individual basis.” Pricer Decl. ¶¶ 9-15 & Exs. 6-9.
`
`Meta’s records show that Plaintiff repeatedly accepted the Commercial Terms by placing
`
`ads, including most recently on March 10, 2022. Id. ¶¶ 22-29. Courts readily enforce the sort of
`
`online agreements that Plaintiff was required to accept in order to purchase Meta ads. See, e.g.,
`
`9
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 14 of 19 Page ID #95
`
`
`
`Lag Shot LLC v. Facebook, Inc., 545 F. Supp. 3d 770, 778–82 (N.D. Cal. 2021) (compelling
`
`arbitration based on Meta’s Commercial Terms); Kangapoda Corp. v. Facebook Inc., No. 21-cv-
`
`09168-JXN-AME (D.N.J. Dec. 13, 2021), Dkt. 25 at 5-8 (same); see also Wilcosky v. Amazon.com,
`
`Inc., 517 F. Supp. 3d 751, 757, 765, 766–67 (N.D. Ill. 2021) (holding that customers agreed to
`
`conditions of use, including arbitration requirement, when they were asked to review and confirm
`
`their order by clicking a “Place your order button,” which stated that placing an order constituted
`
`agreement to conditions of use); Miracle-Pond v. Shutterfly, Inc., 19 CV 04722, 2020 WL
`
`2513099, at *4 (N.D. Ill. May 15, 2020) (collecting cases and noting that “clickwrap
`
`agreement[s]”—i.e., agreements formed “when a website user clicks a button or checks a box that
`
`explicitly affirms that the user has accepted the terms after having the opportunity to scroll through
`
`the terms posted on the website”—are “generally enforced”); Gorny v. Wayfair Inc., No. 18 C
`
`8259, 2019 WL 2409595, at *5–6 (N.D. Ill. June 7, 2019) (holding that customer agreed to
`
`arbitration clause in terms of use where he clicked a “Place Your Order” button located directly
`
`above a notice of agreement to the terms of use).
`
`2.
`
`Plaintiff’s Claims Fall Within The Arbitration Agreement
`
`Plaintiff’s dispute with Meta in this case is a “Commercial Claim” within the scope of the
`
`Commercial Term’s arbitration clause because it “arises out of or relates to” “any” advertising on
`
`Meta’s services.
`
`The arbitration clause applies broadly to “any claim, cause of action, or dispute that arises
`
`out of or relates to any access or use of the Meta Products for business or commercial purposes []
`
`between you and Meta.” Ex. 10 (Jan. 4, 2022) § 5.b (emphases added); see also Ex. 11 (Sept. 27,
`
`2021) § 5.b; Ex. 12 (Aug. 31, 2020) § 5.b; Ex. 13 (May 25, 2018) § 4.b. The Seventh Circuit has
`
`recognized that these types of “[a]rbitration clauses containing language such as ‘arising out of’
`
`10
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 15 of 19 Page ID #96
`
`
`
`are ‘extremely broad’ and ‘necessarily create a presumption of arbitrability.’” Faulkenberg v. CB
`
`Tax Franchise Sys., LP, 637 F.3d 801, 810–11 (7th Cir. 2011) (citation omitted); see also Gore,
`
`666 F.3d at 1033 (holding that “arising out of” and “relating to” language should be read
`
`“broadly”). This dispute falls within that broad language to reach “any” dispute “relat[ing] to”
`
`“any” “business or commercial purpose,” including “using ads.” Ex. 10 (Jan. 4, 2022) § 5.b; see
`
`also Ex. 11 (Sept. 27, 2021) § 5.b; Ex. 12 (Aug. 31, 2020) § 5.b; Ex. 13 (May 25, 2018) § 4.b.
`
`Ads (and Plaintiff’s commercial purposes more broadly) are at the very heart of this
`
`dispute: Plaintiff alleges that it is an injured competitor of Meta because Meta purportedly misled
`
`advertisers into purchasing ads on Meta’s services instead of on Plaintiff’s local websites and radio
`
`stations. Whether advertisers were “using ads” on Meta at Plaintiff’s expense is the crux of
`
`Plaintiff’s false advertising claims. See Dkt. 1 ¶¶ 6-8 (alleging that Meta made “false and/or
`
`misleading statements regarding the metrics material to consumers considering purchasing
`
`advertisements from Meta,” “for the purpose of, inter alia, influencing potential advertisers to buy,
`
`and to continue buying, the main product Meta sells: digital advertising,” and “[a]s a result,”
`
`Plaintiff’s advertising sales were diverted, or are likely to be diverted, to Meta). Thus, in the
`
`Motion to Dismiss filed contemporaneously with this Motion, Meta argues that Plaintiff’s
`
`allegations about advertising on Meta do not state a claim because, among other reasons, Plaintiff
`
`fails to plead that the purported “false advertising” caused any advertiser to buy ads on Meta’s
`
`services instead of on Plaintiff’s local radio stations, and none of the challenged “false advertising”
`
`were material to advertisers’ decision to advertise on Meta at all, let alone instead of on Plaintiff’s
`
`local outlets. See Def. Meta Platforms, Inc.’s Memo. In Support Of Its Mot. to Dismiss at 11-19.
`
`Plaintiff’s Complaint is, at its core and at every turn, about “any” use of Meta for advertising.
`
`11
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 16 of 19 Page ID #97
`
`
`
`But more specifically, Plaintiffs’ claims also relate to Plaintiff’s own use of Meta for
`
`advertising. Despite claiming that Meta’s overestimation of global users and audience size duped
`
`advertisers into making purchases they would otherwise have made on Plaintiff’s local news
`
`outlets or a putative class member’s ad platforms, Plaintiff itself was actually buying ads on
`
`Facebook. And Plaintiff continued to buy ads for its Facebook Pages even after the overestimation
`
`allegations were publicized in the DZ Reserve litigation and even before that in news articles.5
`
`Thus, whether through the lens of Plaintiff’s own ad buying or its allegations about others
`
`buying ads on Meta’s services instead of its own news outlets, Plaintiff’s Complaint falls within
`
`the scope of the Commercial Terms’ broad arbitration provision.
`
`3.
`
`Plaintiff Has Not Alleged That The Arbitration Clause Is Unenforceable
`
`Plaintiff has not alleged and cannot allege that the Commercial Terms are unenforceable,
`
`much less carried its “burden of showing” that the arbitration clause is both procedurally and
`
`substantively unconscionable, as required. Pain Treatment Ctrs. of Illinois v. SpectraLab Sci.,
`
`Inc., No. 15-CV-01012, 2017 WL 4340125, at *2 (N.D. Ill. Sept. 30, 2017); see also Forness v.
`
`Cross County Bank, Inc., 05-CV-417-DRH, 2006 WL 726233, at *2 n.5 (S.D. Ill. Mar. 20, 2006)
`
`(“Under Illinois law, ‘[b]efore a court can invalidate an arbitration clause on unconscionability
`
`grounds, the clause must be found to be both procedurally and substantively unconscionable.’”)
`
`(citation omitted). Nor could it, as Plaintiff had the opportunity to opt out of Meta’s arbitration
`
`clause and place ads without agreeing to arbitrate. See, e.g., O’Neil v. Comcast Corp., No. 18 C
`
`4249, 2019 WL 952141, at *5 (N.D. Ill. Feb. 27, 2019) (holding that arbitration agreement was
`
`not unconscionable where plaintiff “could have opted out”); Tory v. First Premier Bank, 10 C
`
`
`5 Plaintiff continued to buy ads for its AdVantage news page until November 19, 2021, and for its
`107.1 FM radio station until March 10, 2022, see Pricer Decl. ¶ 28, long after DZ Reserve v. Meta
`Platforms, Inc., No. 18-CV-04978-JD (N.D. Cal), was filed in August 2018.
`
`12
`
`

`

`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 17 of 19 Page ID #98
`
`
`
`7326, 2011 WL 4478437, at *4 (N.D. Ill. Sept. 26, 2011) (holding that “a meaningful opportunity
`
`to opt out of [an] arbitration provision [] defeats any claim that the content of the arbitration
`
`provision is unconscionable”). Indeed, courts have held that the arbitration clause in

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket