By order issued Tuesday, Judge John S. Tigar permitted a group of Instagram user plaintiffs to respond to a newly-made contention by Facebook amid its quest to compel arbitration in an ongoing biometrics privacy suit. In its reply brief, Facebook asserted that one of the plaintiffs, a minor, created a second Instagram account and agreed to arbitration as part of that sign-up process.
In a footnote, the order acknowledged that Facebook could have made these arguments in its initial moving papers because some, but not all, of the evidence was then in its possession. Judge Tigar stated that while the court might otherwise decline to consider such evidence, “it will do so in this instance given its potential materiality.”
The plaintiffs have until October 1 to file a supplemental brief responding to the evidence presented with Facebook’s reply. Should they elect to do so, Facebook may file its own in response on or before October 15.