Gamboa v. The Procter & Gamble Co.

• Decision Date: 24 May 2022
• Docket Number: 21 C 6515
• Parties: JAN GAMBOA, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. THE PROCTOR & GAMBLE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

JAN GAMBOA, individually and on behalf of a class of similarly situated individuals, Plaintiff,
v.
THE PROCTOR & GAMBLE COMPANY, Defendant.

No. 21 C 6515

United States District Court, N.D. Illinois, Eastern Division

May 24, 2022

OPINION AND ORDER

Joan H. Lefkow U.S. District Judge

Jan Gamboa filed this action individually and on behalf of similarly situated individuals in Illinois state court, alleging that the Proctor & Gamble Company (P&G) violated the Illinois Biometric Privacy Act, 740 Ill. Comp. Stat. 14/1, et seq. (typically referred to as BIPA), by collecting, storing, using, and disseminating biometric data with their Oral B smartphone application. P&G removed the action to federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d). P&G now seeks to transfer venue to the Southern District of Ohio pursuant to 28 U.S.C. § 1404(a). For the following reasons, P&G's motion to transfer venue is denied.

Background

The following facts are taken from the complaint and the parties' briefs. In June 2021, Jan Gamboa, a resident of Illinois, purchased an Oral B iO Series 7G toothbrush. Gamboa also downloaded the Oral B smartphone application, which connects with the user's toothbrush via Bluetooth and tracks the user's brushing habits to provide feedback on how well he is brushing. The Oral B iO Series 7G toothbrush and corresponding app are products of P&G.

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When a user opens the Oral B app on his smartphone, this image appears.

(Image Omitted)

The user sees a disclosure that Oral B collects “usage data” followed by three bullet points with clickable boxes providing additional information about the app. The first and most relevant point states “REQUIRED FOR REGISTRATION. Terms. You are at least 18, have read P&G Privacy Policy and agree to the Oral-B Mobile app Terms of service.” The user can then click on the hyperlinked Terms of service to read the agreement. The agreement states that it “contains very important information about your rights and obligations, as well as limitations and exclusions that may apply to you if you register, participate in and/or use the Oral-B mobile application.” Later on, the agreement provides that any disputes related to the agreement “shall be resolved exclusively in the state or federal courts located in Hamilton County, Ohio.” The

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user does not have to actually click the link or scroll through the agreement to register an account in the app; he need only click the box affirming that he has read it, then click the “ALLOW” button at the bottom of the screen.

Yet a user does not need to register an account to use the app. Underneath the “ALLOW” button is a “MAYBE LATER” button. If the user clicks “MAYBE LATER, ” he can continue using the app without registering an account or clicking the box affirming that he agrees to the Terms. Although P&G provided an affidavit describing the registration process (dkt. 17-2), Gamboa never alleged nor did either party present evidence that he registered such an account.

Gamboa alleges that, as part of the app's toothbrushing-tracking technology, P&G captures, collects, stores, uses, and disseminates facial geometry and biometric data in violation of BIPA. P&G now seeks to enforce the forum selection clause in the Terms against Gamboa and transfer venue to the Southern District of Ohio.

Legal Standard

Under 28 U.S.C. § 1404(a), a party may move to transfer venue based on “the convenience of the parties and witnesses, in the interest of justice.” Section 1404(a) therefore provides the mechanism for enforcing a forum selection clause. See Atl. Marine Const. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 59 (2013). Forum selection clauses are presumed valid if the underlying contract is enforceable, see IFC Credit Corp. v. Aliano Bros. Gen. Contractors, Inc., 437 F.3d 606, 609-10 (7th Cir. 2006), and only unusual circumstances warrant deviating from the parties' contractually agreed forum, see Mueller v. Apple Leisure Corp., 880 F.3d 890, 894 (7th Cir. 2018).

Analysis

I. Enforceability of Forum Selection Clause

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P&G argues that Gamboa is bound by the app's Terms of service agreement and its forum selection clause designating the appropriate venue in Hamilton County, Ohio. Gamboa argues that he never assented to the Terms and therefore is not bound by the forum selection clause.

At the threshold, the parties dispute whether Illinois or Ohio law governs whether they formed a valid contract, but neither party has demonstrated a conflict between jurisdictions. As such, the court applies Illinois law to determine whether the parties formed a contract with a forum selection clause. See Sosa v. Onfido, Inc., 8 F.4th 631, 638 (7th Cir. 2021); Townsend v. Sears, Roebuck and Co., 879 N.E.2d 893, 898 (Ill. 2007) (“A choice-of-law determination is required only when a difference in law will make a difference in the outcome.”).

Under Illinois law, the party seeking to enforce a contract bears the burden of showing its existence. Reese v. Forsythe Mergers Grp., 682 N.E.2d 208, 213 (Ill.App.Ct. 1997).^[1] Contract formation requires an offer, acceptance, and consideration, in conjunction with an objective manifestation of mutual assent. See also Vill. of S. Elgin v. Waste Mgmt. of Ill. Inc., 810 N.E.2d 658, 670 (Ill. 2004).

Here, the contract allegedly was formed through the use of an app. Agreements formed via app or website fall into three categories based on how the agreement is (or is not) presented to the user: clickwrap, hybridwrap, or browsewrap. A clickwrap agreement arises where a party clicks a button affirming that he assents to the agreement after being shown the full terms. See, e.g., Wilson v. Redbox Automated Retail, LLC, 448 F.Supp.3d 873, 882 (N.D. Ill. 2020); Sgouros v. TransUnion Corp., No. 14 C 1850, 2015 WL 507584, at *4 (N.D. Ill. Feb. 5, 2015), aff'd, 817 F.3d 1029 (7th Cir. 2016). A hybridwrap agreement arises where the app does not

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display the full agreement but does provide a hyperlink to the terms and informs the user that by taking a certain action, such as signing up for an account, he is assenting to the agreement. See, e.g., Anand v....