In Davis v. CACH, LLC, 2015 WL 913392 (N.D.Cal. 2015), Judge Freeman referred an FDCPA class action to arbitration, finding that the claim was within the scope of the Arbitration, that Arbitration was not inconsistent with the enforcement mechanisms of the FDCPA, and that the Defendant had not waived arbitration by filing a collection action in state court. Judge Freeman also found that whether the class action itself should proceed in arbitration was a question for the arbitrator – absent language in the agreement to the contrary.
Plaintiff makes two arguments as to why the Court should not read the arbitration clause to encompass the claims at issue in this litigation. First, Plaintiff contends that arbitration would prejudice her ability to enforce the provisions of the FDCPA, because arbitration lacks “important due process safeguards offered by this Court,” as well as contending that arbitration in general, namely how costs can be awarded to prevailing defendants, would chill private actions to enforce the FDCPA, and run afoul of Congress’ intent in enacting the FDCPA to encourage consumers to aggressively protect their rights. See Pl.’s Opp. at 11–12. Second, Plaintiff argues that Defendants have waived any right to arbitration by bringing suit in state court to collect on Plaintiff’s HSBC debt. See id. at 9–11. ¶ The Supreme Court has clearly held that statutory claims may be subject to arbitration, “unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991); see also Tripathi–Manteris v. Stoldal, 2012 WL 1068699, at *2 (D.Nev. Mar. 29, 2012) (“By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits their resolution to an arbitral, rather than a judicial, forum.”). Such an intention may arise from the Act itself, its legislative history, or an inherent conflict between arbitration and the Act’s purpose. See id.; see also Shearson/Am. Express Inc. v. McMahon, 482 U.S. 220, 227 (1987). ¶ The Supreme Court has consistently “rejected generalized attacks on arbitration that rest on ‘suspicion of arbitration as a method for weakening the protections afforded in the substantive law to would-be complainants.’ ” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 89–90 (2000). Plaintiff’s arguments here do not rise above this mere suspicion. She contends only that Congress intended the FDCPA to “be enforced by consumers as private attorneys general” and that permitting arbitration in FDCPA suits would have a “chilling effect” on the statute. See Pl.’s Opp. at 12. Plaintiff points to no language in the statute that evinces Congressional intent to prevent arbitration of FDCPA claims, however, or any inherent conflict between FDCPA’s purpose and arbitration. Myriad courts have analyzed the text and purpose of the FDCPA and found that FDCPA claims are arbitrable. See Miller v. Nw. Trustee Servs., Inc., 2005 WL 1711131, at *4 n.4 (E.D.Wash. July 20, 2005) (“Neither the text of the FDCPA, its legislative history, nor an examination of the FDCPA’s underlying purpose reveals any indication that Congress intended to preclude FDCPA claimants from resolving their disputes in arbitration.”); Carbajal v. H & R Block Tax Servs., Inc., 372 F.3d 903, 906 (7th Cir.2004); Brown v. Sklar–Markind, 2014 WL 5803135, at *12 (W.D.Pa. Nov. 7, 2014) (“[T]he overwhelming majority of cases to consider the matter have, not surprisingly, compelled arbitration of FDCPA claims finding such claims not categorically exempt from the FAA’s reach.”); MBNA Am. Bank, N.A. v. Ruhl, 2007 WL 1031553, at *2 (M.D.Pa.2007); Shetiwy v. Midland Credit Mgmt., 959 F.Supp.2d 469, 475 (S.D.N.Y.2013). This Court joins those courts in finding that FDCPA claims are arbitrable under the FAA. ¶ Plaintiff’s waiver argument fares no better. She contends that CACH has waived its right to compel arbitration by suing Plaintiff in state court to collect on the debt she owed to HSBC. Under the law of this circuit, a party waives its right to arbitration when it knows of its right to compel arbitration, acts inconsistent with that right, and such inconsistent acts prejudice the non-waiving party. See, e.g., United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 765 (9th Cir.2002). A party arguing for such a waiver, however, “bears a heavy burden of proof.” Van Ness Townhouses v. Mar Indus. Corp., 862 F.3d 754, 578 (9th Cir.1988). ¶ In this case, Plaintiff has not shown that Defendants acted inconsistent with their right to compel arbitration. The mere filing of a lawsuit in state court to collect on a debt does not mean that the debt collector cannot then compel arbitration if the debtor later brings suit regarding different claims. See, e.g., Hodson v. Javitch, Block & Rathbone, LLP, 531 F.Supp.2d 827, 831 (N.D.Ohio 2008) (finding that filing collections actions in state court does not waive the party’s right to later seek arbitration of FDCPA claims subsequently brought by the debtor); see also Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 133 (2d Cir.1997) (“Finding waiver where a party has previously litigated an unrelated yet arbitrable dispute would effectively abrogate an arbitration clause once a party had litigated any issue relating to the underlying contract.”) (emphasis in original). Similarly, in United Computer, the Ninth Circuit found that the party had acted inconsistent with its right to arbitrate only after United Computer brought a civil suit against defendant AT & T, requested a jury trial, forced AT & T to incur expenses related to that suit, then itself moved to compel arbitration in that same action. See 298 F.3d 756, 764–65 (“The filing of this lawsuit by UCS, rather than paying the $2,000 administrative fee [to the arbitrator listed in the contract], is also inconsistent with the terms of the arbitration clause.”) (emphasis added). The Ninth Circuit further found no prejudice to AT & T after United Computer withdrew its request to arbitrate. See id. at 765. Unlike in United Computer, this action in which Defendants move to compel arbitration is separate from the one brought by CACH in state court. Plaintiff does not meet its heavy burden to show that Defendants waived their right to seek arbitration of Plaintiff’s FDCPA claims. ¶ Defendants also argue that Plaintiff’s purported class claims cannot proceed to arbitration because the arbitration clause in the Cardmember Agreement does not “include a contractual basis for concluding that the part[ies] agreed to do so.” StoltNielsen S.A. v. AnimalFeeds Int’l Grp., 559 U.S. 662, 684 (2010). Plaintiff does not respond to this argument in her opposition. The Supreme Court is clear that “class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator.” Id. at 685; see also Am. Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2309 (2013) (“Nor does congressional approval of Rule 23 establish an entitlement to class proceedings for the vindication of statutory rights.”). ¶ Here, the Cardmember Agreement contains neither an express class action waiver nor an authorization that class claims are arbitrable. Courts in this district have found that, in the absence of an explicit class action waiver, whether an arbitration clause permits or precludes the arbitration of class claims is a question for the arbitrator. See, e.g., Westcott v. ServiceMaster Global Holdings, Inc., 2011 WL 2565621, at *3 (N.D. Cal. June 29, 2011) (holding that the arbitrator must decide whether the arbitration clause permits class claims if it is unclear whether the defendant has consented to class arbitration); see also Yahoo!, Inc. v. Iversen, 836 F.Supp.2d 1007, 1013 (N.D.Cal.2011) (finding that nothing prevents an “arbitrator or the subsequent reviewing court from finding that the parties consented to submit class claims to arbitration even in the absence of any explicit discussion of class arbitration within the four corners of the agreement itself”) (emphasis added). The Court therefore rejects Defendants’ request that Ms. Davis’ claims proceed to arbitration on an individual basis only. See, e.g., CACH’s Mot. at 6.