— Subaru has failed to compel arbitration between the automaker and the owner of a 2020 Subaru Outback in an Illinois class action lawsuit that alleges Subaru collects personal data from drivers.
The Subaru class action lawsuit includes former and current Illinois owners of these vehicles equipped with DriverFocus systems:
- 2019-2022 Subaru Forester Touring
- 2020-2022 Subaru Outback Limited, Touring, Touring XT and Limited XT
- 2020-2022 Subaru Legacy Limited, Limited XT and Touring XT
The lawsuit was filed by plaintiff Renee Giron who purchased a 2020 Subaru Outback in January 2020.
About two years later she filed this Subaru class action lawsuit which alleges her Outback is equipped with a safety feature that captures and collects her "biometric information."
The Subaru DriverFocus system is a safety feature which uses a camera to track a driver's face and eyes to verify the driver is paying attention to the road.
According to the Subaru class action, if the “system determines that the driver is not paying attention or is drowsy,” it will alert the driver with a visual or audible warning.
In addition, the Subaru DriverFocus system also scans the driver's face, or creates a facial map, when the vehicle is started. The system will automatically adjust the seat and mirrors to the preferences of the driver if DriverFocus recognizes the driver.
Even though the feature is for the safety of drivers, plaintiff Renee Giron filed the lawsuit for at least $5 million by asserting DriverFocus violates the Illinois Biometric Information Privacy Act.
The plaintiff argues the facial map constitutes biometric information for purposes of the Biometric Information Privacy Act.
However, Subaru filed a motion to compel the plaintiff to arbitrate her claims with an arbitrator, not in a class action lawsuit.
Subaru DriverFocus Lawsuit: No Arbitration
According to Judge Jorge L. Alonso, Subaru has the burden of proving arbitration is appropiate in this case because it is Subaru which is trying to compel the plaintiff to arbitrate her claims.
And the judge says in this case, Subaru of America is attempting to enforce an arbitration clause in an "agreement to which it is not a party."
The arbitration clause is included in the financing agreement between the plaintiff and a Subaru dealership, but not directly with Subaru of America, Inc.
Specifically, the agreement says the claims subject to arbitration are those “between you and us,” meaning between the plaintiff and the Subaru dealership, but not Subaru Corp.
In the end, Judge Alonso denied Subaru's motion to compel arbitration by ruling when people sign an arbitration agreement, they are "not agreeing that any other third party in this nation can force them to an arbitrator to determine whether they have agreed to arbitrate a dispute with the third party."
The judge also found under Illinois law, a “nonsignatory typically has no right to invoke an arbitration provision contained in that contract.”
"Subaru of America, Inc. has not shown it is allowed, under Illinois law, to enforce the arbitration clause in the Financing Agreement between plaintiff and Grand Subaru, LLC [the dealership]. Accordingly, its motion to compel arbitration is denied." — Judge Jorge L. Alonso
The Subaru DriverFocus class action lawsuit was filed in the U.S. District Court for the Northern District of Illinois: Renee Giron, v. Subaru of America, Inc.
The plaintiff is represented by Cafferty Clobes Meriwether & Sprengel.