Azuz v. Accucom Corp.

Docket Number21-cv-1182
Decision Date15 March 2023
PartiesMARILYN AZUZ, individually and on behalf of all others similarly situated, Plaintiff, v. ACCUCOM CORPORATION, d/b/a INFOTRACER, Defendant.
CourtU.S. District Court — Northern District of Illinois
MEMORANDUM OPINION AND ORDER

STEVEN C. SEEGER, UNITED STATES DISTRICT JUDGE

Defendant Accucom runs a website where people can search public records for a fee. The website, InfoTracer, allows visitors to get a sneak peek of the available information before they sign up and pay for a subscription. It offers a bit of a teaser letting visitors see the type of personal information that the website could provide about a particular person.

That sneak peek is the core of the case. Plaintiff Marilyn Azuz filed suit against Accucom, accusing the company of using her personal information to advertise and promote its products without her permission. The theory is that the sneak peek is an advertisement or promotion of the product (meaning the full database), designed to encourage visitors to sign up. In her view, teasing visitors with tidbits of personal information about a specific person violates the Illinois Right of Publicity Act.

Before filing suit, Azuz's counsel conducted an investigation and visited Accucom's website. The attorney wanted to confirm that Azuz's information was, in fact, on the website. So counsel searched the website for information about Azuz, and sure enough, the website offered information about her.

As the company sees it, that search about a potential lawsuit means that Azuz cannot bring a lawsuit at all. The company points out that the website includes terms and conditions, and a visitor agrees to those terms and conditions by using the website. One of those terms and conditions is an arbitration provision.

Accucom now seeks to compel arbitration, based on the use of the website by Plaintiff's counsel. Accucom argues that counsel acted as Azuz's agent when it used the InfoTracer site and performed a search, and thus bound her to the arbitration provision. Alternatively, Accucom contends that Azuz ratified the attorney's action because the complaint includes information from the attorney's visit to the website.

For the reasons that follow, the motion to compel arbitration is denied.

Background
I InfoTracer's Services

Accucom runs a website, InfoTracer.com, that offers access to a database of over five billion public records. See Coler Dec., at ¶ 3 (Dckt. No. 43-2). By searching a person's name, a user can find information about that person, like their current and past addresses, phone numbers social media accounts, relatives, criminal records, and more. See https://InfoTracer.com. Full access to InfoTracer's database requires a fee.

InfoTracer allows visitors to see a free preview of its services, before users sign up and pay the cost of full access to the database. A user simply has to enter certain information - like “name,” “phone,” and “email” - on the InfoTracer home page, and then hit “Search.” The goal is to attract potential users by giving them a sense of what information they might be able to get their hands on.

A forewarning appears right below the big red “Search” button. The website says that “Conducting a search on InfoTracer.com is subject to our Terms of Service and Privacy Notice.” See Def.'s Renewed Mtn. to Dismiss, at 2 (Dckt. No. 43). The font is small, and the forewarning isn't particularly conspicuous. But it's there. See Coler Dec., at ¶ 5 (Dckt. No. 43-2) (showing a screenshot of the website).

The website offers a number of paths for locating the terms and conditions. For example, the search screen includes a hyperlink to the terms and conditions. Id. The website includes a hyperlink in other spots, too, including under the Menu bar on the bottom of the home screen. Id. at ¶ 6. In fact, a hyperlink to the terms of service appears on the bottom of every page on the website. Id. at ¶ 8.

The website says that a visitor accepts the terms and conditions by using the site. A disclaimer appears at the bottom of the home screen: “By using Infotracer you agree to comply with the conditions set forth in the Infotracer terms of service.” Id. at ¶ 7. The terms of service repeat the point:

By accessing, browsing, or otherwise using the Sites, you agree to be legally bound by these Terms of Use. PLEASE READ THESE TERMS OF USE CAREFULLY. YOUR USE OF THE SITE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS OF USE. DO NOT USE THE SITE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THE TERMS OF SERVICE.

Id. at ¶ 9.

The terms and conditions include an arbitration provision. A user of the website agrees that [a]ny dispute concerning [Accucom Corporation], any InfoTracer services, Information, or these Terms will be settled by binding arbitration in Boston, Massachusetts in accordance with the Commercial Arbitration Rules of the American Arbitration Association.” Id. at ¶ 12. So, anyone who uses the website and views a preview has consented to arbitration.

To conduct a search, a user simply has to enter information into the search engine and then click on the big red “Search” button. At that point, the website displays a “Notice” on the screen (complete with a warning sign: a yellow triangle with an exclamation point in the middle). Id. at ¶ 10.

The Notice includes five paragraphs of text. Id. The paragraphs describe what InfoTracer.com is, where it gets its material, and how a user can and cannot use the information. Id. For example, the Notice says that information about license plates is available only for a purpose that is consistent with a federal statute. Id. It has a disclaimer about the Federal Credit Reporting Act, too.

Two large boxes appear at the bottom of that Notice. One says “I DON'T AGREE,” and the other one (in an inviting shade of green) says “I AGREE.” Id. Clicking “I AGREE” is an essential step. A user cannot access the free preview without clicking “I AGREE.” Id. at ¶ 11.

Clicking on “I AGREE” doesn't mean what you think it might mean. Surprisingly, based on the Court's review, the Notice does not appear to refer to the terms of service. The Notice does not say, for example, that clicking on “I AGREE” equals acceptance of the terms and conditions.

Instead, the Notice offers the following explanation of what it means to click “I AGREE.” “You understand that by clicking ‘I agree,' Infotracer.com will conduct only a preliminary people search of the information you provide and that a search of any records will only be conducted and made available to you after you register for an account or purchase a report.” Id.[1] So, the Notice itself may not ask users to confirm that they accept the terms and conditions. At least not directly. But elsewhere, the website does say - several times - that use of InfoTracer equals acceptance of the terms and conditions. And the terms and conditions include an arbitration provision.

II. Claims Against Accucom

The story begins with a Facebook ad for the legal services of Bursor & Fisher in early 2021. See Azuz Dep., at 7:18-24 (Dckt. No. 43-1). The ad invited internet users to inquire and see if their name and personal information appeared on a different website (spokeo.com) without their consent. Id. at 9:25 - 10:8.

Azuz responded to the ad by submitting her name to the law firm. She was “just curious to see if she was in there.” Id. at 14:17-23.

Azuz ultimately retained the firm. On February 24, 2021, Bursor & Fisher and Azuz executed an agreement for representation in a class action lawsuit. See Representation Letter (Dckt. No. 43-4).

By then, InfoTracer.com had caught Bursor & Fisher's attention and became the new target for a potential lawsuit. At that point, an attorney at Bursor & Fisher, Julian Diamond, rolled up his sleeves and starting investigating the website.

The attorney ran a search on InfoTracer for information about Azuz. He used the information that she had submitted in response to the ad, and he looked to see if the website offered personal information about her. The attorney hit paydirt. He learned that InfoTracer offered a preview of Azuz's personal information, including her name, age, city of domicile, and the identity of her relatives. See Cplt., at ¶ 23 (Dckt. No. 1). Counsel took a screenshot, and eventually incorporated that screenshot in the complaint. Id. at ¶ 5.

Unlike her lawyer, Azuz has never personally accessed the Infotracer website. See Azuz Dep., at 31:1-10 (Dckt. No. 43-1). She hasn't performed a search, and hasn't tried to look up her information. Only her lawyer did.

Azuz ultimately filed a one-count complaint. She alleges that Accucom violated the Illinois Right of Publicity Act, 765 ILCS 1075/1, by using her personal information “for the purpose of advertising or promoting its products without written consent.” See Cplt., at ¶ 39 (Dckt. No. 1). She seeks compensatory, statutory, and punitive damages on behalf of herself and a putative class. Id. at ¶ 41.

Accucom, in turn, moved to dismiss for improper venue. See Def.'s Mtn. to Dismiss (Dckt. No. 15). The company argued that Azuz had agreed to arbitrate any claims about the website by using the website. In its view, the existence of an agreement to arbitrate means that the Northern District of Illinois is an improper venue under Rule 12(b)(3). The company also moved to dismiss for lack of personal jurisdiction, and for failure to state a claim.

Azuz responded to the motion by pointing out that she never personally visited the InfoTracer website. See Pl.'s Resp. to Def.'s Mtn. to Dismiss, at 8-11 (Dckt. No. 23). In her view, she never agreed to arbitration because she never used the website. Her lawyer visited the website, not her.

That revelation was news to the company. Accucom...

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