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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 

FREDY SOSA, individually and on behalf of 

all others similarly situated, 

 Plaintiff, 

 v. 

ONFIDO, INC., a Delaware corporation, 

 Defendant. 

 

 

 Case No.: 20-cv-04247 

 Honorable Marvin E. Aspen 

 

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION 

TO STAY AND COMPEL INDIVIDUAL ARBITRATION 

INTRODUCTION 

 Defendant Onfido, Inc., faces an insurmountable hurdle to compelling Plaintiff Fredy 

Sosa to arbitrate this dispute: there is no arbitration agreement between them. Lacking such an 

agreement, Onfido instead seeks to enforce an arbitration clause contained in the Terms of 

Service of OfferUp, an online marketplace app used by Mr. Sosa and to which Onfido provided 

identity-verification services. But Onfido is not a party to the OfferUp Terms of Service, and, for 

the most part, agreements can’t be enforced by non-signatories. 

 In its Motion to Stay and Compel Individual Arbitration, Onfido offers three theories why 

it should be exempt from the general rule and allowed to enforce an arbitration clause in 

someone else’s agreement: third-party beneficiary, equitable estoppel, and agency. None of these 

exceptions apply here, however. Onfido is not an intended third-party beneficiary of the OfferUp 

Terms of Service (which, among other things, expressly disclaim the creation of any third-party 

rights), Mr. Sosa engaged in no conduct on which Onfido relied to its detriment such that he is 

equitably estopped from disputing Onfido’s ability to enforce the OfferUp arbitration clause, and 

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Onfido presents no evidence that it was OfferUp’s agent such that it can invoke OfferUp’s 

arbitration agreement. For these reasons—as well as the fact that Onfido seeks improper relief in 

the form of an order compelling out-of-district arbitration—Onfido’s motion should be denied. 

BACKGROUND 

 Mr. Sosa filed suit against Onfido in Illinois state court under the Biometric Information 

Privacy Act, 740 ILCS 14/1 et seq. (Dkt. 1-1.) He alleges that in the course of providing identityverification services to OfferUp, Onfido collected his biometric data—specifically, his facial 

geometry or information based on it—without his consent in violation of the statute. (Id. ¶¶ 33-

40.) Onfido removed the suit to this Court and now moves to compel arbitration. It is undisputed, 

however, that no contract exists between Mr. Sosa and Onfido. Consequently, Onfido seeks to 

enforce an arbitration clause in the OfferUp Terms of Service. 

As Onfido acknowledges, it is not a party to those terms. (Dkt. 21 at 9.) Furthermore, the 

OfferUp Terms of Service—including the arbitration clause—make clear that they apply only to 

the parties to those terms: OfferUp and its users. The terms begin by notifying users that “these 

terms include a mandatory arbitration provision and class action waiver provision, which affect 

your rights about how to resolve any dispute with OfferUp, Inc.” (Dkt. 23 at 13, 44, 65, 96, 126) 

(emphasis added). Likewise, the arbitration provision begins by noting that it requires users to 

arbitrate all disputes “with OfferUp,” and that it limits the manner in which users can seek relief 

“from OfferUp.” (Id. at 35, 58, 87-88, 118-19, 148-49). It then goes on to make clear—

repeatedly—that it is an agreement solely between users “and OfferUp.” (Id. at 36, 58, 88, 119, 

149) (“[Y]ou and OfferUp agree to arbitrate Disputes through binding arbitration[.]”) (emphasis 

added); (id. at 36, 59, 88, 119, 149) (“You and OfferUp agree that any Dispute ... will be 

resolved solely through individual arbitration[.]”) (emphasis added); (id. at 36, 59, 88-89, 120, 

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150) (“You and OfferUp agree that these Terms ... shall be ... governed by ... the Federal 

Arbitration Act”) (emphasis added); (id. at 36, 59, 89, 120, 150) (“You and OfferUp agree that 

each party will notify the other party in writing of any arbitrable or small claims Dispute[.]”) 

(emphasis added); (id. at 37, 59, 89-90, 121, 151) (“[Y]ou and OfferUp agree that ... any 

arbitration will occur in King County, Washington, [and] ... will be conducted confidentially by 

a single arbitrator[.]”) (emphasis added). The Terms of Service define “OfferUp” solely as 

including “OfferUp, Inc.” (Id. 23 at 13, 44, 65, 96, 126.) “OfferUp” does not include any 

affiliates or licensors, which are separately defined as “OfferUp Providers.” (Id. 23 at 31, 55-56, 

84, 115, 145.) 

The OfferUp Terms of Service also expressly disclaim the creation of any enforceable 

rights in third parties, explicitly stating that “[t]hese Terms do not create any private right of 

action on the part of any third party.” (Id. at 25, 52, 77, 108, 138). Though this disclaimer 

appears in Section 7 of the Terms of Service (“Acceptable Use”), the word “Terms” is defined in 

the opening paragraph of the Terms of Service as “all terms described herein and all terms 

incorporated by reference.” (Id. at 23 at 13, 44, 65, 96, 126.) 

Finally, while Onfido asserts that it was an agent of OfferUp, there is no evidence in the 

record providing any details about their relationship. Mr. Sosa’s complaint alleges generally that 

OfferUp “partnered up with Onfido to establish its users’ identities” (dkt. 1-1 ¶ 34), and the 

OfferUp Terms of Service reference the TruYou identity-verification service (dkt. 23 at 18-19, 

48, 71-72, 102-03, 132-33).1 The OfferUp Terms of Service go on to state that “OfferUp does 

1 The complaint doesn’t mention OfferUp by name, because the case is not against 

OfferUp—it’s described as an “online marketplace.” (Dkt. 1-1 ¶¶ 33-35.) Mr. Sosa does not 

dispute that the online marketplace to which the complaint refers is OfferUp. Likewise, while the 

OfferUp Terms of Service do not name the provider of the TruYou identity-verification service, 

Mr. Sosa agrees that it is provided by Onfido. 

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not control, endorse or adopt any Third-Party Content and ... OfferUp will have no 

responsibility for any Third Party Content,” where “Third-Party Content” is defined as including 

“services provided by third parties.” (Dkt. 23 at 26-27, 53, 79, 110-11, 140.) Other than that, 

there is no information in the record regarding the relationship between Onfido and OfferUp. In 

fact, when asked, both Onfido and OfferUp declined to provide Plaintiff’s counsel with a copy of 

any agreement between them, and Onfido refused to provide any additional information about 

their relationship at all. (Declaration of J. Eli Wade-Scott (“Wade-Scott Decl.”) ¶ 2, attached 

hereto as Exhibit 1.) 

ARGUMENT 

I. THE MOTION TO COMPEL ARBITRATION IS IMPROPER. 

 Before turning to the merits of Onfido’s motion, there is a remedies problem to address: 

Onfido is seeking relief this Court can’t grant. Section E of the arbitration clause that Onfido 

wants to enforce states that “any arbitration will occur in King County, Washington.” (Dkt. 23 at 

37, 59, 89-90, 121, 151.) But as the Seventh Circuit has explained, “where [an] arbitration 

agreement contains a forum selection clause, only the district court in that forum can issue a § 4 

order compelling arbitration.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Lauer, 49 F.3d 

323, 327 (7th Cir. 1995). Thus, when faced with a motion to compel arbitration outside its

district, a court should instead treat the motion as one for dismissal under Rule 12(b)(3) for 

improper venue. See, e.g., In re Dealer Mgmt. Sys. Antitrust Litig., No. 18-cv-864, 2020 WL 

832365, at *6 (N.D. Ill. Feb. 20, 2020); Nandorf, Inc. v. Applied Underwriters Captive Risk 

Assurance Co., 410 F. Supp. 3d 882, 887 (N.D. Ill. 2019); Cont’l Cas. Co. v. Am. Nat. Ins. Co., 

417 F.3d 727, 732-33 (7th Cir. 2005) (stating that such an approach “makes eminent sense”). 

The Court should do so here. 

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 Regardless, re-casting the motion as one for improper venue does not change the ultimate 

outcome: the motion should be denied. As explained below, this dispute is not subject to 

arbitration because Onfido—a non-signatory to the OfferUp Terms of Service—has no right to 

enforce an arbitration clause in a contract between OfferUp and its users. Thus, whether treated 

as a motion to compel arbitration or a motion to dismiss for improper venue, Onfido’s motion 

should be denied. 

II. ONFIDO—A NON-SIGNATORY—CANNOT ENFORCE THE ARBITRATION 

CLAUSE IN THE OFFERUP TERMS OF SERVICE. 

Whether an arbitration agreement can be enforced by a non-signatory to that agreement is 

determined by state law. Scheurer v. Fromm Family Foods LLC, 863 F.3d 748, 752-53 (7th Cir. 

2017). Here, the state whose law governs is Illinois.2

As a general matter, only signatories are entitled to enforce an arbitration agreement. 

Ervin v. Nokia, Inc., 812 N.E.2d 534, 539 (Ill. App. Ct. 2004). That said, courts have recognized 

various contract-based theories under which a non-signatory may be able to enforce an 

arbitration agreement. Id. Onfido asserts three such theories in support of its attempt to enforce 

the OfferUp arbitration clause: third-party beneficiary, equitable estoppel, and agency. Here, 

however, none of those exceptions to the general rule of non-signatory unenforceability apply. 

2

 Onfido cites both Washington and Illinois law in its brief but identifies no substantive 

difference between the two. (Dkt. 21 at 5-6.) For that reason alone, Illinois law applies. See 

Gould v. Artisoft, Inc., 1 F.3d 544, 549 n.7 (7th Cir. 1993) (“Where the parties have not 

identified a conflict between the two bodies of state law that might apply to their dispute, we will 

apply the law of the forum state—here, Illinois.”). In any event, the only potential basis for 

applying Washington law identified by Onfido (a Delaware corporation headquartered in 

California (dkt. 1 at 3)) is a Washington choice-of-law clause in the OfferUp Terms of Service. 

(Dkt. 21 at 5.) But as a non-signatory seeking to enforce those terms, Onfido cannot assert the 

terms’ choice of law clause. Nucap Indus., Inc. v. Robert Bosch LLC, 273 F. Supp. 3d 986, 1006 

(N.D. Ill. 2017) (“Applying [the contract’s] choice-of-law provision would assume the answer to 

the antecedent question of contract formation at issue (i.e. beg the question).”). 

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A. Onfido is not a third-party beneficiary of the OfferUp Arbitration Clause. 

Illinois recognizes two types of third-party beneficiaries—intended and incidental. Cont’l 

Cas. Co., 417 F.3d at 734. Only an intended beneficiary has enforceable rights under the 

contract. Id. See also Thomas v. UBS AG, 706 F.3d 846, 852 (7th Cir. 2013) (“A third-party 

beneficiary is someone whom the contracting parties wanted to have the right to enforce the 

contract.”) (emphasis omitted). “Illinois law, however, strongly disfavors finding that a thirdparty beneficiary relationship exists absent express language creating one.” Word v. City of 

Chicago, 946 F.3d 391, 397 (7th Cir. 2020). Here, no such language exists. 

As noted above, the arbitration provision in the OfferUp Terms of Service expressly 

states that it is an agreement between “[a user] and OfferUp,” with “OfferUp” being defined as 

including only OfferUp, Inc. There is nothing in the arbitration provision—let alone the required 

“express language”—extending its coverage to anyone besides OfferUp and its users. This alone 

defeats Onfido’s claim to be an intended third-party beneficiary entitled to enforce the arbitration 

clause. See Ervin, 812 N.E.2d at 541 (“If AT&T intended that Nokia would be a third-party 

beneficiary of the [wireless service agreement with AT&T customers], it could have included 

Nokia in the [agreement.]”); cf. Manor v. Copart Inc., No. 17-cv-2585, 2017 WL 4785924, at *4 

(N.D. Ill. Oct. 24, 2017) (allowing non-signatory subsidiary to enforce arbitration agreement 

between plaintiff and “Company” where agreement expressly defined “Company” as including 

subsidiaries). 

Furthermore, not only does the arbitration provision fail to mention any intended thirdparty beneficiaries, the OfferUp Terms of Service expressly disclaim the creation of any 

enforceable rights in third parties. (Dkt. 23 at 25, 52, 77, 108, 138) (“These Terms do not create 

any private right of action on the part of any third party[.]”). This, too, is enough to defeat 

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Onfido’s claim to third-party beneficiary status. See Barry v. St. Mary’s Hosp. Decatur, 68 

N.E.3d 964, 976 (Ill. App. Ct. 2016) (finding non-signatory not to be a third-party beneficiary 

where the contract specified that, except for a single identified third-party beneficiary, “nothing 

contained here will be construed as, or be deemed to create, any rights or remedies in any party 

other than [the parties to the contract]”). 

Onfido points to various sections of the Terms of Service (notably not the arbitration 

provision) in its bid to establish itself as a third-party beneficiary, but none of those provisions 

create any enforceable rights in Onfido. Sections 4 and 8, discussing a user’s obligations with 

respect to using the TruYou feature and posting content on OfferUp, provide—at best—only 

incidental benefits to Onfido. See Martis v. Grinnell Mut. Reinsurance Co., 905 N.E.2d 920, 924 

(Ill. App. Ct. 2009) (“It must appear from the language of the contract that the contract was made 

for the direct, not merely incidental, benefit of the third person.”). Nowhere is any entity but 

OfferUp mentioned in those provisions. And to the extent sections 16 (disclaimer of warranties), 

18 (limitation of liability), and 19 (indemnification) provide direct third-party benefits to 

anyone—contrary to the Terms’ express disclaimer of third-party rights—it is not to Onfido. 

Onfido relies on those sections’ use of the defined term “OfferUp Providers,” which is defined to 

include OfferUp’s “affiliates.” (Dkt. 23 at 31, 55-56, 84, 115, 145.) But Onfido’s unsupported 

assertion to the contrary notwithstanding, Onfido offers no evidence that it is an affiliate of 

OfferUp—i.e., “[a] corporation that is related to another corporation by shareholdings or other 

means of control; a subsidiary, parent, or sibling corporation.” Affiliate, Black’s Law Dictionary 

(11th ed. 2019). 

In any case, even if the sections to which Onfido points did make Onfido an intended 

third-party beneficiary, those sections are not the arbitration clause. To the extent any of those 

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other sections of the OfferUp Terms of Service grant enforceable third-party rights to Onfido, 

they do not grant Onfido the right to enforce the arbitration clause. See Estate of Willis v. 

Kiferbaum Const. Corp., 830 N.E.2d 636, 643 (Ill. App. Ct. 2005) (a third party has no 

enforceable rights under a contract “unless the agreed-to provision was intentionally included for 

the direct benefit of the third party”) (emphasis added). Indeed, aside from the fact (discussed 

above) that the arbitration clause is expressly limited to OfferUp and its users, that clause doesn’t 

even make sense as applied to third parties. For example, the arbitration clause provides that 

written notice of an arbitrable dispute must be given to the other side and specifies where and 

how such notice must be sent: Notice to OfferUp must be sent by certified mail or courier to 

“OfferUp Designated Agent” in Bellevue, Washington, and notice to a user must be sent to the 

email address that the user used to register their OfferUp account. (Dkt. 23 at 36-37, 59, 89, 120, 

150.) The arbitration clause does not specify where or how required notice is to be sent to any 

third parties who have enforceable arbitration rights under that provision. If the parties intended 

to give third parties like Onfido enforceable rights under this provision, it seems odd (to say the 

least) that the parties would not also specify where and how required notice was to be sent as to 

such third parties—information they deemed important enough to spell out as to themselves. 

 “Illinois law holds a strong presumption against creating contractual rights in third 

parties, and this presumption can only be overcome by a showing that the language and 

circumstances of the contract manifest an affirmative intent by the parties to benefit the third 

party.” Willis, 830 N.E.2d at 642-43. Onfido has failed to make that showing here. 

B. Equitable estoppel does not apply. 

Onfido’s appeal to equitable estoppel is similarly unavailing. “In Illinois, ‘a claim of 

equitable estoppel exists where a person, by his or her statements or conduct, induces a second 

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person to rely, to his or her detriment, on the statements or conduct of the first person.’” Warciak 

v. Subway Rests., Inc., 880 F.3d 870, 872 (7th Cir. 2018) (quoting Ervin, 812 N.E.2d at 541). 

This detrimental reliance must be shown “by clear, concise, and unequivocal evidence.” Ervin, 

812 N.E.2d at 541 (internal quotations omitted). 

Here, Onfido fails to explain—let alone provide clear, concise, and unequivocal evidence 

of—what statements or conduct of Mr. Sosa it relied on, what action it took in reliance on any 

such statements or conduct, how any such reliance was reasonable, or what detriment it suffered 

in doing so. Even assuming he agreed to the OfferUp Terms of Service when creating an account 

or logging in to OfferUp, see Sgouros v. TransUnion Corp., 817 F.3d 1029 (7th Cir. 2016) 

(clicking an “I accept” button under an online service agreement during a sign-up process did not 

manifest consumer’s assent to terms), Mr. Sosa took no action at all with respect to Onfido. He 

did exactly what the plaintiff did in Ervin with respect to a non-signatory seeking to enforce an 

arbitration clause: nothing. Ervin, 812 N.E.2d at 541 (“When [plaintiff] entered into [a contract 

containing an arbitration clause] with AT&T for cell phone service in July of 2000, he took no 

action from which [non-signatory defendant] could have reasonably relied on to its detriment 

that [plaintiff] had agreed to arbitrate any claim he had against [non-signatory defendant].”). And 

as the Illinois Supreme Court has explained, “[w]ithout the misrepresentation or concealment of 

a material fact, equitable estoppel does not apply.” Parks v. Kownacki, 737 N.E.2d 287, 296 (Ill. 

2000). See also Geddes v. Mill Creek Country Club, Inc., 751 N.E.2d 1150, 1157 (Ill. 2001) 

(setting out the elements of equitable estoppel). 

Ignoring the elements established by the Illinois Supreme Court, Onfido instead argues 

that equitable estoppel applies whenever a plaintiff “raises allegations of substantially 

interdependent and concerted misconduct by both the non-signatory and one or more of the 

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signatories to the contract.” (Dkt. 21 at 13) (quoting Paragon Micro, Inc. v. Bundy, 22 F. Supp. 

3d 880, 889-90 (N.D. Ill. 2014)). But this “interdependent and concerted misconduct” test is not 

the law in Illinois; it is federal common law that has its genesis in a 1999 Eleventh Circuit case. 

See Paragon Micro, 22 F. Supp. 3d at 889-90 (citing MS Dealer Serv. Corp. v. Franklin, 177 

F.3d 942 (11th Cir. 1999)). Illinois courts have expressly and repeatedly rejected this MS Dealerderived test. See Ervin, 812 N.E.2d at 541-42 (declining to adopt MS Dealer standard for 

equitable estoppel); Peach v. CIM Ins. Corp., 816 N.E.2d 668, 673-74 (Ill. App. Ct. 2004) 

(same); Guar. Trust Life Ins. Co. v. Platinum Supplemental Ins., Inc., 68 N.E.3d 481, 491-92 (Ill. 

App. Ct. 2016) (same). 

Whether a non-signatory can enforce an arbitration agreement (including through 

equitable estoppel) is determined by state—not federal—law. Scheurer, 863 F.3d at 752-53; 

CCC Info. Servs. Inc. v. Tractable Inc., No. 18 C 7246, 2019 WL 2011092, at *4 (N.D. Ill. May 

7, 2019). Illinois law requires clear, concise, and unequivocal evidence of detrimental reliance on 

some misrepresentation or concealment of a material fact. Onfido has failed to provide any such 

evidence, and equitable estoppel therefore does not apply to allow non-signatory enforcement of 

the OfferUp Terms of Service. 

C. Onfido has failed to establish an agency relationship with OfferUp. 

Finally, Onfido asserts that it can enforce the OfferUp arbitration clause because “[it] was 

acting as OfferUp’s agent in connection with the TruYou feature.” (Dkt. 21 at 13.) As an initial 

matter, Onfido’s attempt to enforce the arbitration clause as OfferUp’s agent appears to be 

expressly prohibited by the clause itself. (Dkt. 23 at 36, 59, 88, 119, 149) (“You and OfferUp 

agree that there will be no class arbitration or arbitration in which an individual attempts to 

resolve a Dispute as a representative of another individual or group of individuals.”) (emphasis 

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added). In any case, Onfido’s agency argument fails for a more fundamental reason: there’s no 

evidence that Onfido was ever an agent of OfferUp. 

“Agency is a consensual, fiduciary relationship between two legal entities created by law, 

where the principal has the right to control the activities of the agent, and the agent has the power 

to conduct legal transactions in the name of the principal.” Caligiuri v. First Colony Life Ins. 

Co., 742 N.E.2d 750, 756 (Ill. App. Ct. 2000). Thus, “[t]he test of agency is [1] whether the 

alleged principal has the right to control the manner and method in which work is carried out by 

the alleged agent and [2] whether the alleged agent can affect the legal relationships of the 

principal.” Chemtool, Inc. v. Lubrication Techs., Inc., 148 F.3d 742, 745 (7th Cir. 1998) 

(applying Illinois law). Both elements must be satisfied for there to be an agency relationship. 

See, e.g., Caligiuri, 742 N.E.2d at 756-58 (finding no agency where, though there was evidence 

that alleged principal “would maintain full responsibility for the training, supervision and 

control” of alleged agent’s employees, there was no evidence that alleged agent “had the ability 

to conduct legal transactions in the name of” alleged principal). 

Here, Onfido doesn’t assert—let alone present evidence of—either element. See Sphere 

Drake Ins. Ltd. v. Am. Gen. Life Ins. Co., 376 F.3d 664, 672 (7th Cir. 2004) (“[T]he party 

alleging an agency relationship ... bears the burden of proving its existence by a preponderance 

of the evidence.”). Onfido doesn’t claim that OfferUp had the right to control the manner and 

method in which Onfido provided identity-verification services to OfferUp, nor does it claim that 

it had the right to conduct transactions for or otherwise affect the legal relationships of OfferUp. 

Instead, Onfido simply points to three paragraphs in the complaint in which Mr. Sosa alleges that 

OfferUp “partnered” with Onfido to establish OfferUp users’ identities. (Dkt. 21 at 13-14.) But 

contrary to Onfido’s assertion, the fact that OfferUp engaged Onfido to provide identityCase: 1:20-cv-04247 Document #: 26 Filed: 11/17/20 Page 11 of 13 PageID #:398
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verification services does not—without more—establish an agency relationship. See, e.g., 

Chemtool, 148 F.3d at 146-47 (an “agreement whereby [one company] performed certain 

services on [another company’s] behalf” did not create an agency relationship where “[second 

company] did not exercise control over the manner in which [first company] provided its 

services and ... [first company] lacked authority to affect [second company’s] legal relations”). 

In fact, the OfferUp Terms of Service expressly disclaim the kind of control over or 

responsibility for third parties’ provision of services that would be required to make those third 

parties OfferUp’s agents. (Dkt. 23 at 26-27, 53, 79, 110-11, 140) (stating that “OfferUp does not 

control, endorse or adopt any Third-Party Content and ... OfferUp will have no responsibility for 

any Third Party Content,” where “Third-Party Content” is defined as including “services 

provided by third parties”). 

Remarkably, when Plaintiff’s counsel requested evidence that might establish or disprove 

agency—the agreement between OfferUp and Onfido, or a declaration from Onfido establishing 

agency—Onfido refused. (See Correspondence between J. Eli Wade-Scott and Joel Griswold, 

Ex. 1-A.) Onfido has decided to do nothing but point to the allegations of the complaint, which 

do not carry Onfido’s burden to establish agency. Having failed to establish the existence of an 

agency relationship, Onfido cannot enforce OfferUp’s Terms of Service under an agency theory. 

CONCLUSION 

Because Onfido cannot enforce the arbitration clause in the OfferUp Terms of Service, 

Defendant’s Motion to Stay and Compel Arbitration should be denied. 

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Respectfully submitted, 

FREDY SOSA, individually and on behalf of all 

others similarly situated, 

 

Dated: November 17, 2020 By: /s/ J. Eli Wade-Scott 

 One of Plaintiff’s attorneys 

Benjamin H. Richman 

brichman@edelson.com 

J. Eli Wade-Scott 

ewadescott@edelson.com 

Schuyler Ufkes 

sufkes@edelson.com 

EDELSON PC

350 North LaSalle Street, 14th Floor 

Chicago, Illinois 60654 

Tel: 312.589.6370 

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