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CEB Prac. Guide § 2B.39: Arbitration

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9th Cir. Addresses Enforcement of “On-Line” Consent to Arbitration in TCPA Case

by Scott J. Hyman |

In Berman v. Freedom Fin. Network, LLC, No. 20-16900, 2022 U.S. App. LEXIS 9083, at *12-14 (9th Cir. Apr. 5, 2022), the 9th Circuit addressed the enforceability of an arbitration agreement set forth on a website that allowed the consumer to click-through the operator's various policies and the arbitration.  The Court of Appeals stated the rule as follows: The most… Read More

4th Cir. Says TCPA Claim Falls within Arbitration Agreement, for Affiliates and Contracting Party

by Scott J. Hyman |

In Mey v. DIRECTV, LLC, No. 18-1534, 2020 U.S. App. LEXIS 24993 (4th Cir. Aug. 7, 2020), the Court of Appeals for the 4th Circuit enforced an arbitration clause in a TCPA class action.  DIRECTTV, who was an affiliate of AT&T, was entitled to enforce the agreement. As an initial matter, we conclude—as the district court appears to have acknowledged… Read More

District Court (Ill.) Denies Petition to Compel TCPA Claim

by Scott J. Hyman |

In Chacon v. Comcast Cable Communications Mgmt., LLC, 2018 WL 3046868, at *3 (N.D.Ill., 2018), Judge Guzman found that a TCPA claim fell outside the scope of an arbitration clause. The critical issue here is whether the second element identified in A.D. for compelled arbitration is satisfied: is the current dispute within the scope of the Subscriber Agreement’s arbitration provision?… Read More

11th Cir. Says Arb. Clause in Auto Finance RISC Did Not Cover TCPA Class Action Deriving from Text Messages Sent After the Account Was Paid in Full

by Scott J. Hyman |

In Gamble v. New England Auto Finance, Inc., 2018 WL 2446607 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit found that text messages sent by automobile finance company after its customer had paid her RISC in full were not subject to the RISC’s arbitration clause and class-action waiver. NEAF also argues that the Arbitration Provision is broad enough… Read More

District Court (Cal.) Orders TCPA Case to Arbitration Despite Consumer’s Claim that He Followed the Defendant’s Opt-Out Procedures and Opted-Out of the Arbitration Agreement

by Scott J. Hyman |

In Ewing v. Charter Communications Holding Company, LLC., 2017 WL 6049379, at *3–4 (S.D.Cal., 2017), Judge Benitez ordered a TCPA case to arbitration over the consumer's objection that he opted-out. In his opposition, Ewing does not object to or otherwise dispute Ms. Flores's declaration or the attached evidence of his account history. His sole argument is that he “followed the… Read More

District Court (Tn.) Denies Pre-Emptive TCPA Class Certification Motion By Granting Responsive Petition to Compel Arbitration

by Scott J. Hyman |

In Stevens-Bratton v. TruGreen, Inc., 2016 WL 155087, at *2 (W.D.Tenn., 2016), Judge Anderson denied a class certification motion on the basis that the Defendant responded to it with a Petition to Compel Arbitration, finding that the Arbitration Clause was not unconscionable.  The unconscionability analysis is not unusual, so much as the procedural posture. TruGreen is a national lawn care… Read More

District Court (NY) Orders TCPA Case to Arbitration; Finds Nothing in TCPA Suggesting that Congress Meant to Foreclose Arbitrability of TCPA Cases

by Scott J. Hyman |

In McCormick v. Citibank, NA, 2016 WL 107911, at *5 (W.D.N.Y., 2016), Judge Curtin ordered a TCPA case to arbitration, holding that the TCPA itself did not preclude arbitration. 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.” . .… Read More

District Court (NY) Grudgingly Orders TCPA Case to Arbitration

by Scott J. Hyman |

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… Read More

District Court (N.J.) Orders TCPA Case to Arbitration

by Scott J. Hyman |

In Ellin v. Credit One Bank, 2015 WL 7069660 (D.N.J. 2015), Judge Wolfson ordered a TCPA case to arbitration. Having concluded that a valid agreement between the parties exists, the Court must next determine whether the dispute at hand falls within the ambit of the Agreement's arbitration clause. In making this determination, “the Court should keep in mind federal policy favors… Read More

District Court (N.Y.) Sends TCPA Matter to Arbitration

by Scott J. Hyman |

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… Read More

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