In Carr v. Credit One Bank, 2015 WL 9077314, at *3-4 (S.D.N.Y. 2015), Judge Kaplan grudgingly ordered a TCPA case to arbitration.
Plaintiff’s final argument is that the TCPA claim is outside the scope of the arbitration clause. The parties do not appear to have considered whether this is a question for the Court or for an arbitrator, although plaintiff argues implicitly that it is a question for the Court. The answer to this question, however, ultimately is inconsequential, as plaintiff’s argument would be rejected in either case. If questions concerning the scope of the arbitration clause are for the arbitrator to decide, then plaintiff’s argument is not properly before this Court. If, however, the argument properly were for this Court, then the Court considers it mindful of the Second Circuit’s guidance that “[a]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration,” and that, under the FAA, “arbitration is indicated unless is can be said with positive assurance that an arbitration clause is not susceptible to an interpretation that covers the asserted dispute.” Here, the Court cannot say with positive assurance that plaintiff’s TCPA claims arising out of defendant’s phone calls to plaintiff concerning her credit card account are beyond the scope of the arbitration clause, which encompasses “any controversy or dispute between [plaintiff] and [defendant]” and any matter “relating to [plaintiff’s] account.” Indeed, several other district courts have held that TCPA claims are within the scope of the same arbitration clause in the same contract. The Court is mindful of the issues surrounding arbitration clauses inserted into form contracts in consumer transactions by powerful economic enterprises. Just two days ago, Justice Ginsburg explained in her dissent in DIRECTV, Inc. v. Imburgia that “[b]ecause consumers lack bargaining power to change the terms of consumer adhesion contracts ex ante, the providers have won the power to impose a mandatory, no-opt-out system in their own private ‘courts’ designed to preclude aggregate litigation.” Indeed, earlier this year Senator Al Franken and Representative Hank Johnson introduced the Arbitration Fairness Act of 2015 which, if enacted, would amend the FAA to prohibit parties from entering pre-dispute agreements to arbitrate employment, consumer, antitrust, or civil rights disputes. In the last analysis, however, this Court is obliged to apply the law unless and until it is changed by a higher authority.