`
`
`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
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`the terms posted on the website”—are “generally enforced”); Gorny v. Wayfair Inc., No. 18 C
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`8259, 2019 WL 2409595, at *5–6 (N.D. Ill. June 7, 2019) (holding that customer agreed to
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`arbitration clause in terms of use where he clicked a “Place Your Order” button located directly
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`above a notice of agreement to the terms of use).
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`2.
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`Plaintiff’s Claims Fall Within The Arbitration Agreement
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`Plaintiff’s dispute with Meta in this case is a “Commercial Claim” within the scope of the
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`Commercial Term’s arbitration clause because it “arises out of or relates to” “any” advertising on
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`Meta’s services.
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`The arbitration clause applies broadly to “any claim, cause of action, or dispute that arises
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`out of or relates to any access or use of the Meta Products for business or commercial purposes []
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`between you and Meta.” Ex. 10 (Jan. 4, 2022) § 5.b (emphases added); see also Ex. 11 (Sept. 27,
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`2021) § 5.b; Ex. 12 (Aug. 31, 2020) § 5.b; Ex. 13 (May 25, 2018) § 4.b. The Seventh Circuit has
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`recognized that these types of “[a]rbitration clauses containing language such as ‘arising out of’
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`10
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`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 15 of 19 Page ID #96
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`are ‘extremely broad’ and ‘necessarily create a presumption of arbitrability.’” Faulkenberg v. CB
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`Tax Franchise Sys., LP, 637 F.3d 801, 810–11 (7th Cir. 2011) (citation omitted); see also Gore,
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`666 F.3d at 1033 (holding that “arising out of” and “relating to” language should be read
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`“broadly”). This dispute falls within that broad language to reach “any” dispute “relat[ing] to”
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`“any” “business or commercial purpose,” including “using ads.” Ex. 10 (Jan. 4, 2022) § 5.b; see
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`also Ex. 11 (Sept. 27, 2021) § 5.b; Ex. 12 (Aug. 31, 2020) § 5.b; Ex. 13 (May 25, 2018) § 4.b.
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`Ads (and Plaintiff’s commercial purposes more broadly) are at the very heart of this
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`dispute: Plaintiff alleges that it is an injured competitor of Meta because Meta purportedly misled
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`advertisers into purchasing ads on Meta’s services instead of on Plaintiff’s local websites and radio
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`stations. Whether advertisers were “using ads” on Meta at Plaintiff’s expense is the crux of
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`Plaintiff’s false advertising claims. See Dkt. 1 ¶¶ 6-8 (alleging that Meta made “false and/or
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`misleading statements regarding the metrics material to consumers considering purchasing
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`advertisements from Meta,” “for the purpose of, inter alia, influencing potential advertisers to buy,
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`and to continue buying, the main product Meta sells: digital advertising,” and “[a]s a result,”
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`Plaintiff’s advertising sales were diverted, or are likely to be diverted, to Meta). Thus, in the
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`Motion to Dismiss filed contemporaneously with this Motion, Meta argues that Plaintiff’s
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`allegations about advertising on Meta do not state a claim because, among other reasons, Plaintiff
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`fails to plead that the purported “false advertising” caused any advertiser to buy ads on Meta’s
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`services instead of on Plaintiff’s local radio stations, and none of the challenged “false advertising”
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`were material to advertisers’ decision to advertise on Meta at all, let alone instead of on Plaintiff’s
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`local outlets. See Def. Meta Platforms, Inc.’s Memo. In Support Of Its Mot. to Dismiss at 11-19.
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`Plaintiff’s Complaint is, at its core and at every turn, about “any” use of Meta for advertising.
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`11
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`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 16 of 19 Page ID #97
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`But more specifically, Plaintiffs’ claims also relate to Plaintiff’s own use of Meta for
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`advertising. Despite claiming that Meta’s overestimation of global users and audience size duped
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`advertisers into making purchases they would otherwise have made on Plaintiff’s local news
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`outlets or a putative class member’s ad platforms, Plaintiff itself was actually buying ads on
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`Facebook. And Plaintiff continued to buy ads for its Facebook Pages even after the overestimation
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`allegations were publicized in the DZ Reserve litigation and even before that in news articles.5
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`Thus, whether through the lens of Plaintiff’s own ad buying or its allegations about others
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`buying ads on Meta’s services instead of its own news outlets, Plaintiff’s Complaint falls within
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`the scope of the Commercial Terms’ broad arbitration provision.
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`3.
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`Plaintiff Has Not Alleged That The Arbitration Clause Is Unenforceable
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`Plaintiff has not alleged and cannot allege that the Commercial Terms are unenforceable,
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`much less carried its “burden of showing” that the arbitration clause is both procedurally and
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`substantively unconscionable, as required. Pain Treatment Ctrs. of Illinois v. SpectraLab Sci.,
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`Inc., No. 15-CV-01012, 2017 WL 4340125, at *2 (N.D. Ill. Sept. 30, 2017); see also Forness v.
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`Cross County Bank, Inc., 05-CV-417-DRH, 2006 WL 726233, at *2 n.5 (S.D. Ill. Mar. 20, 2006)
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`(“Under Illinois law, ‘[b]efore a court can invalidate an arbitration clause on unconscionability
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`grounds, the clause must be found to be both procedurally and substantively unconscionable.’”)
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`(citation omitted). Nor could it, as Plaintiff had the opportunity to opt out of Meta’s arbitration
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`clause and place ads without agreeing to arbitrate. See, e.g., O’Neil v. Comcast Corp., No. 18 C
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`4249, 2019 WL 952141, at *5 (N.D. Ill. Feb. 27, 2019) (holding that arbitration agreement was
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`not unconscionable where plaintiff “could have opted out”); Tory v. First Premier Bank, 10 C
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`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.
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`Case 3:22-cv-01455-DWD Document 24-1 Filed 09/09/22 Page 17 of 19 Page ID #98
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`
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`7326, 2011 WL 4478437, at *4 (N.D. Ill. Sept. 26, 2011) (holding that “a meaningful opportunity
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`to opt out of [an] arbitration provision [] defeats any claim that the content of the arbitration
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`provision is unconscionable”). Indeed, courts have held that the arbitration clause in