In O’Brien v. American Exp. Co., 2012 WL 3628667 (S.D.Cal. 2012), Judge Moscowitz addressed arbitrability of a TCPA class-action claim. Plaintiff Karin O’Brien brought the putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, alleging that Defendant American Express contacted her and others similarly situated by telephone without express prior consent and in violation of the TCPA. Judge Moscowitz ordered some basic discovery:
The Federal Arbitration Act (“FAA”) “calls for a summary and speedy disposition of motions or petitions to enforce arbitration clauses,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 29, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), and therefore discovery in connection to a motion to compel arbitration is available “only if ‘the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue.’ “ Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir.1999) (citations omitted). “[T]he making of the arbitration agreement is in issue if the plaintiff alleges that the arbitration clause was fraudulently induced, that one party had overwhelming bargaining power, or that the agreement does not exist.” Hibler v. BCI Coca–Cola Bottling Co. of L.A., No. 11cv00298 JLS (NLS), 2011 WL 4102224, at *1 (S.D.Cal. Sept. 14, 2011). ¶ Magistrate Judge Skomal found that the allegations in Plaintiff’s motion sufficiently placed the making of the agreement in issue, such that limited “discovery is relevant to the formation or making of the agreement[.]” (Doc. 20 at 3.) The Court finds no clear error in this determination or in Magistrate Judge Skomal’s decision to grant seven limited requests for document discovery (Doc. 20 at 7–10), and, accordingly, DENIES Defendant’s Rule 72(a) motion.