In Salerno v. CreditOne Bank, N.A., 2015 WL 6554977 (W.D. N.Y. 2015), Judge Curtin sent a TCPA matter to arbitration, finding that the claim was within the scope of the arbitration clause and that the TCPA did not preclude arbitration.
As set forth above, the arbitration clause of Credit One’s Cardholder Agreement is extremely broad, encompassing any dispute relating to the handling of the account, including any “communications relating to [the] account; any transactions or attempted transactions involving [the] account, whether authorized or not; billing, billing errors, credit reporting, the posting of transactions, payment or credits, or collections matters relating to [the] account….” Item 9–4, p. 5. The clause applies to all “Claims based on any theory of law, any contract, statute, regulation, ordinance, tort (including fraud or any intentional tort), common law, constitutional provision, respondeat superior, agency or other doctrine concerning liability for other persons, custom or course of dealing or any other legal or equitable ground (including any claim for injunctive or declaratory relief).” Id. at 5–6. The Agreement also expressly provides that “[a]ny questions about what Claims are subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced.” Id. at 5. Considering the breadth of this language, and in light of the federal policy requiring courts “to construe arbitration clauses as broadly as possible …,” In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d at 128, the court cannot conclude with positive assurance that the arbitration provision of the Cardholder Agreement is not susceptible of an interpretation that covers the claims asserted in the amended complaint regarding Credit One’s liability under the TCPA for its communications with plaintiff relating to her credit card account. Accordingly, the court finds that the second element of the arbitrability inquiry is satisfied provision of the Cardholder Agreement. 3. Arbitrability of TCPA Claims Because plaintiff asserts a federal statutory claim, the court must consider “whether Congress evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Green Tree Fin. Corp.Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). At this step of the inquiry, “the party seeking to avoid arbitration bears the burden of establishing that Congress intended to preclude arbitration of the statutory claims at issue.” Id. at 9192; see also Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 227, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987); Spinelli v. Nat’l Football League, 2015 WL 1433370, at *11 (S.D.N.Y. Mar.27, 2015). Plaintiff has made no showing in this regard. Moreover, as noted by defendant and as confirmed by this court’s research, the few courts that have considered the issue have found nothing in the text or legislative history of the TCPA to suggest that Congress intended TCPA claims to be non-arbitrable. See, e.g., Tuttle v. Sallie Mae, Inc., 2014 WL 545379, at *7 (N.D.Ind. Feb.11, 2014); Cyganiewicz v. Sallie Mae, Inc., 2013 WL 5797615, at *5–6 (D.Mass. Oct.24, 2013). Accordingly, the court finds that plaintiff has not met her burden of establishing a congressional intent to preclude waiver of judicial remedies for TCPA claims.