Children Of Alexa Users Not Required To Arbitrate Their Claims Of Unlawful Wiretapping

Earlier this year, I referenced the Northern District of Illinois decision in Wilcosky v. Amazon.Com, Inc., compelling arbitration of claims against Amazon alleging that the company, through its Alexa device, violated the Illinois Biometric Information Privacy Act by illegally recordings their voices and storing their voiceprints. One claimant ordered to arbitration was not a purchaser or owner of an Alexa device, but was found to have agreed to arbitration by virtue of the Conditions of Use applicable to other products he had purchased from Amazon.

Last week, the Ninth Circuit issued an opinion, refusing Amazon’s motion to compel arbitration of claims brought by minor children of Alexa account owners who have alleged that Alexa “has intercepted or recorded their communications without their consent, in
violation of various state-wiretapping laws.” In B.F. v. Inc. the court noted that “it is undisputed that, if the parents brought the same claims as Plaintiffs, the terms to which they agreed would bind them to arbitration.”

However, the children were not signatories to the agreement their parents entered into with Amazon, and, for the court, the doctrine of equitable estoppel, frequently invoked to compel arbitration against non-signatories who benefit from the underlying agreement, was not applicable. According to the court,

“Plaintiffs are not asserting any right or looking to enforce any duty created by the contracts between their parents and Amazon. Instead, Plaintiffs bring only state statutory claims that do not depend on their parents’ contracts. In other words, irrespective of those agreements, Amazon would owe to Plaintiffs the legal duty that Plaintiffs claim has been violated.”

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