In Newger v. First Contact, No. 1:20-cv-00039-SNLJ, 2020 U.S. Dist. LEXIS 107348 (E.D. Mo. June 18, 2020), the District Court found that an arbitration award in favor of a consumer’s creditor could be used by the debt collector to estop the consumer from bringing new claims.
In this case, there is no serious dispute that the arbitral award dispensed of the issue of plaintiff’s consent to be called regarding debt he owed. The arbitrator concluded that, by agreement of plaintiff and Credit One, plaintiff agreed to provide “written notice” to Credit One of any intent to revoke consent to communications regarding debts owed. Under the facts presented to the arbitrator, which have not been challenged, plaintiff only provided oral notification of his revocation-apparently to defendants during their many phone calls. So, at first glance, the arbitral award appears to favor applying collateral estoppel. But that result does not hold, plaintiff says, because “the arbitration award was [never] confirmed” and, even then, “[a]bsent from the arbitrator’s award are any findings as to the nature or existence of a principal-agent relationship between [Credit One] and [the defendants].” On this latter point, plaintiff says defendants, in order to defeat Count II, “would have to establish that they were [Credit One’s] ‘agents’ under the terms of the contract” that required written, and not oral, revocation. And in support, plaintiff points to a 117-year-old case from the Eighth Circuit that details how a principal who “cannot control and direct” someone means that person is not the principal’s agent. Nat’l Sur. Co.v. State Bank of Humboldt, Neb., 120 F. 593, 597 (8th Cir. 1903). Plaintiff’s argument misses the mark. First, it does not matter that the award is unconfirmed. Plaintiff is out of time to contest the arbitral award. See 9 U.S.C. § 12 (providing three months to vacate, modify, or correct an award). And, in any event, “the fact that the award … was not confirmed by the court … does not vitiate the finality of the award.” Wellons, Inc. v. T.E. Ibberson Co., 869 F.2d 1166 (8th Cir. 1989). Simply put, collateral estoppel can apply to unconfirmed awards. See M.J. Woods, Inc. v.Conopco, Inc., 271 F.Supp.2d 576, 586 (S.D.N.Y. 2003). Second, plaintiff’s complaint reveals the several flaws in his agency argument. Anticipating the very issue raised in defendants’ motion, plaintiff’s complaint states that Defendants violated the TCPA by placing at least 150 phone calls to Plaintiff’s cellular phone using an ATDS without his consent. Any consentthat Plaintiff may have given to the originator of the subject debt, whichDefendants will likely assert transferred down, was specifically revoked by Plaintiff’s demands that they cease contacting him. (emphasis added). The arbitrator resolved the now-disingenuous suggestion that plaintiff “may” have given consent to be contacted: He did give his consent, and he gave his consent through operation of a written agreement that required revocation by writing. Thus, “[p]laintiff’s demands that they cease contacting him,” oral in nature, were insufficient. (emphasis added). That is the essential holding of the arbitral award. Moreover, the arbitrator really had no need to consider specifically who was making the call. Earlier in the award, he highlighted the pertinent agreement’s language that plaintiff agreed to “communications” by “us or our agents,” to “contact you at any phone number … for any lawful purpose.” (emphasis added). So, unless the issue of delineating between “us” or “agents” became germane, and it did not, the arbitrator had no reason to refer to anyone other than Credit One generally as the debt holder. Simply put, plaintiff elected to engage in an arbitration that decided the issue of his consent, and he elected to do so on the premise that “respondent” generically referred to the efforts of Credit One and/or its agents as set forth in the credit agreement. The award tacitly refers to the actions of anyone who would have called on Credit One’s behalf to collect the debt at issue in both this case and the arbitration. That much is made clear by plaintiff’s acknowledgment that he gave “consent to the originator,” an 5 individual, but later “demanded that they,” plural, “cease contacting him.” This Court will not permit the hair-splitting plaintiff now seeks to engage in as a means of destroying an otherwise valid arbitration award. Therefore, giving the appropriate preclusive effect to the arbitral award, this Court concludes plaintiff cannot show that defendants’ calls were not “made with the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A); see also Schoenfeld, 2007 WL 2908622 at *3 (granting judgment on the pleadings where arbitrator decided issue against one party that equally applied to another)Accordingly,.Judgment will be entered in favor of defendants.