1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVY SHANNE ACORIN, an individual, Case No.: 24-cv-00036-AJB-BLM Plaintiff, 12 ORDER GRANTING DEFENDANT’S v. MOTION TO COMPEL 13 ARBITRATION AND TO STAY EXPERIAN INFORMATION 14 ACTION PENDING ARBITRATION SOLUTIONS, INC.,
15 Defendant. (Doc. No. 26) 16
17 Presently before the Court is Defendant Experian Information Solutions, Inc.’s 18 (“EIS”) motion to compel arbitration and to stay action pending arbitration in Plaintiff Ivy 19 Shanne Acorin’s civil action for alleged violations of the Fair Credit Reporting Act, 15 20 U.S.C. § 1681, et seq., and the California Consumer Credit Reporting Agencies Act, Cal. 21 Civ. Code § 1785, et seq. (Doc. No. 26.) The motion has been fully briefed, (Doc. Nos. 28, 22 29), and the matter is suitable for determination on the papers. Accordingly, the Court 23 VACATES the hearing set for Thursday, January 16, 2025, at 2:00 p.m. For the reasons 24 stated herein, the Court GRANTS EIS’s motion. 25 I. BACKGROUND 26 In January 2020, while on deployment in Korea as an Army servicemember, Plaintiff 27 discovered fraudulent transactions on her Wells Fargo Credit Card, exceeding her limit. 28 1 (Complaint, Doc. No. 1, ¶¶ 27, 29, 30.) Plaintiff immediately contacted Wells Fargo to 2 dispute the transactions and request the closure of her Wells Fargo account, but this request 3 was denied. (Id. ¶¶ 31–32.) Plaintiff was informed she was required to go to a Wells Fargo 4 branch in person to make said request, despite her deployment. (Id. ¶ 32.) Thereafter, in 5 April 2020, an unknown and unauthorized individual, using Plaintiff’s personal 6 information, took out a loan through Wells Fargo in the amount of $10,800.00. (Id. ¶ 34.) 7 Wells Fargo refused to close Plaintiff’s account until the fraudulent balance was paid off. 8 (Id. ¶ 37.) As a result, Wells Fargo began reporting the fraudulent balance of both the credit 9 card and the loan to Consumer Reporting Agencies, damaging Plaintiff’s credit. (Id. ¶ 40.) 10 On November 25, 2020, Plaintiff sent a dispute letter to EIS reporting the fraudulent 11 information. (Id. ¶ 41.) EIS never responded to Plaintiff’s November 2020 written dispute. 12 (Id. ¶¶ 42, 44.) On June 21, 2022, Plaintiff sent EIS a full Identity Theft Notification 13 (“IDTN”) via certified mail, which was received by EIS on June 25, 2022. (Id. ¶ 58.) EIS 14 never provided a written response to Plaintiff’s IDTN letter. (Id. ¶ 58(b).) As recently as 15 June 11, 2023, EIS continued to report fraudulent accounts and balances from Wells Fargo, 16 despite multiple requests for reinvestigation. (Id. ¶¶ 59–60.) 17 On March 10, 2020, Plaintiff enrolled in CreditWorks, EIS’s credit monitoring 18 service provided by EIS affiliate ConsumerInfo.com, Inc. (“CIC”), which also does 19 business as Experian Consumer Services (“ECS”). (Declaration of Dan Smith (“Smith 20 Decl.”), Doc. No. 26-2, ¶¶ 1–3.) The online form she completed required Plaintiff to enter 21 her personal information—i.e., her name, address, phone number, and e-mail address. (Id. 22 ¶ 3.) After she entered her personal information, Plaintiff had to click the “Create Your 23 Account” button on the webform in order to enroll. (Id.) Immediately below the boxes to 24 enter her e-mail address and password was the following disclosure: “By clicking ‘Create 25 Your Account’: I accept and agree to your Terms of Use Agreement, as well as 26 acknowledge receipt of your Privacy Policy.” (Id.) 27 The phrase “Terms of Use Agreement” in the disclosure was a hyperlink off-set in 28 blue text and, if clicked, would have presented the consumer with the full text of the 1 agreement. (/d. § 4.) Thus, before clicking the “Create Your Account” button, the consumer 2 || could view the entire text of the Terms of Use by clicking on the blue-highlighted hyperlink 3 ||““Terms of Use Agreement.” Ud.) When a consumer clicked on the “Terms of Use 4 || Agreement” hyperlink, an additional window would open within the consumer’s web 5 || browser containing the entire text of the Terms of Use Agreement. (/d.) Immediately below 6 ||the disclosure was a large purple button that reads: “Create Your Account.” (/d.) The 7 || webform, the disclosure, and the “Create Your Account” button appeared on a single 8 || webpage. (/d.) Experian presents the following representation of the webpage as it would 9 || have appeared at the time Plaintiff saw it: 10 Create Your Account 1 1 Email Address: This will be your username 12 | “ Password | A ® 14 : What is the main reason you visited Experian today? 15 | Please select an option * 16 peice urea ronan racer casera xperian Boost results may vary. Some may nol see improved scores or approval 17 odds. Not all lenders use Experian credit files, and mot all lenders use scores Impacted by Experian Boost 18 Credit score calculated based on FICO” Score 8 model, Your lender or insurer may use a different FICO® Score than FICO” Score 8, or another type of credit score 19 altogether. Leam more. By clicking “Create Your Account’: | accept and agree to your Terms of Use 20 Agreement, as well as acknowledge receipt of your Privacy Policy and Ad Targeting Policy. 2 1 | authorize Consumerinfo.com, Inc., also referred to as Experian Consumer Services ("ECS"), te obtain my credit report and/or credit score(s), on a recurring basks ta: 22 * Provide my credit report (and/or credit score) to me for review while | have 23 an account with ECS. « Notify me of other products and services that may be available to me through ECS ar through unaffiliated third parties. 24 # Motify me of credit opportunities and advertised credit offers, 25 lunderstand that | may withdraw this authorization at any time by contacting 2 6 ECs. 27 eit Co el ee tee 28
1 (Doc. No. 26-2 at 7.) 2 After entering her information, Plaintiff clicked the “Create Your Account” button, 3 thereby accepting and agreeing to the Terms of Use. (Smith Decl. ¶ 5.) Plaintiff would not 4 have been able to successfully enroll in CreditWorks unless she clicked that button. (Id.) 5 After enrolling, Plaintiff used the CreditWorks service, with her last login occurring on 6 July 23, 2023. (Id.) Every version of the Terms of Use in effect during Plaintiff’s 7 enrollment included a section entitled “Amendments,” which advised: “Each time you 8 order, access or use any of the Services or Websites, you signify your acceptance and 9 agreement, without limitation or qualification, to be bound by the then current Agreement.” 10 (Id. ¶ 7.) 11 The Terms of Use contains an Arbitration Agreement, which requires Plaintiff to 12 litigate, among other things, all claims against “ECS” that “relate to” or “arise out of” her 13 agreement in arbitration. (Id. ¶ 6; Doc. No. 26-2 at 11.) The Arbitration Agreement and 14 “Overview and Acceptance of Terms” section of the contract defines “ECS” to include its 15 “affiliates,” including “Experian Information Solutions, Inc.” (Smith Decl. ¶ 6; Doc. No. 16 26-2 at 9, 11.) The Arbitration Agreement states arbitration will be governed by the 17 Commercial Dispute Resolution Procedures and the Supplementary Procedures for 18 Consumer Related Disputes of the American Arbitration Association (“AAA”), and will 19 be administered by the AAA. (Doc. No. 26-2 at 11.) 20 The Arbitration Agreement provides in relevant part: 21 ECS and you agree to arbitrate all disputes and claims between us arising out of this Agreement directly related to the Services or Websites to 22 the maximum extent permitted by law, except any disputes or claims which 23 under governing law are not subject to arbitration. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims 24 between us directly relating to the provision of any Service and/or your use of 25 any Website subject to arbitration to the fullest extent permitted by law. This agreement to arbitrate includes, but is not limited to: 26
27 claims arising out of or relating to any aspect of the relationship between us arising out of any Service or Website, whether based in contract, tort, statute 28 1 (including, without limitation, the Credit Repair Organizations Act) fraud, misrepresentation or any other legal theory; claims that arose before this or 2 any prior Agreement (including, but not limited to, claims relating to 3 advertising); . . . and claims that may arise after the termination of this Agreement. 4
5 (Doc. No. 26-2 at 11.) Moreover, at the time of Plaintiff’s last login on July 23, 2023, the 6 Arbitration Agreement stated: 7 All issues are for the arbitrator to decide including, but not limited to, (i) all 8 issues regarding arbitrability, (ii) the scope and enforceability of this arbitration provision as well as the Agreement’s other terms and conditions, 9 (iii) whether you or ECS, through litigation conduct or otherwise, waived the 10 right to arbitrate, (iv) whether all or any part of this arbitration provision or Agreement is unenforceable, void or voidable including, but not limited to, on 11 grounds of unconscionability . . . . Pursuant to this agreement, the arbitrator 12 has been delegated with, and possesses, exclusive authority to resolve all of the above-enumerated types of disputes. 13
14 (Id. at 36.) Pursuant to these provisions, EIS argues this Court must grant its motion to 15 compel Plaintiff to arbitrate her claims. (Doc. No. 26.) 16 II. LEGAL STANDARD 17 The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., governs the enforcement 18 of arbitration agreements involving commerce. See Am. Express Co. v. Italian Colors Rest., 19 570 U.S. 228, 232–33 (2013). The Supreme Court has enunciated a “liberal federal policy 20 favoring arbitration.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 344 (2011) 21 (“The overarching purpose of the FAA . . . is to ensure the enforcement of arbitration 22 agreements according to their terms so as to facilitate streamlined proceedings.”). The FAA 23 “leaves no place for the exercise of discretion by a district court, but instead mandates that 24 district courts shall direct the parties to proceed to arbitration on issues as to which an 25 arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 26 218 (1985). Accordingly, the court’s role under the FAA is to determine “(1) whether a 27 valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses 28 1 the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 2 (9th Cir. 2000). 3 The party seeking to compel arbitration “has the burden of proving the existence of 4 an agreement to arbitrate by a preponderance of the evidence.” Knutson v. Sirius XM Radio 5 Inc., 771 F.3d 559, 565 (9th Cir. 2014). Arbitration is a matter of contract, and a party 6 “cannot be required to submit to arbitration any dispute which [s]he has not agreed so to 7 submit.” Tracer Rsch. Corp. v. Nat’l Envtl. Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 1994) 8 (citation omitted). 9 The FAA provides that arbitration agreements are unenforceable “upon such 10 grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. District 11 courts apply state law principles of contract formation and interpretation in determining 12 which contracts are binding and enforceable under the FAA, if that law governs the 13 validity, revocability, and enforceability of contracts generally. See Arthur Anderson LLP 14 v. Carlisle, 556 U.S. 624, 630–31 (2009); see also Wolsey, Ltd. v. Foodmaker, Inc., 144 15 F.3d 1205, 1210 (9th Cir. 1998). “Thus, generally applicable contract defenses, such as 16 fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements 17 without contravening” federal law. Dr.’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 18 (1996). However, courts are directed to resolve any “ambiguities as to the scope of the 19 arbitration clause itself . . . in favor of arbitration.” Volt Info. Sciences, Inc. v. Bd. of 20 Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 476 (1989). 21 III. REQUEST FOR JUDICIAL NOTICE 22 Federal Rule of Evidence 201 states a “court may judicially notice a fact that is not 23 subject to reasonable dispute because it: (1) is generally known within the trial court’s 24 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 25 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 26 Here, Plaintiff requests judicial notice of (1) the 2017 CreditWorks Terms of Use 27 Agreement, which was filed as Docket No. 23-1 in Morgan v. Experian Information 28 Solutions, Case No. 3:21-cv-05783-JCC (W.D. Wash); (2) the AAA’s Commercial 1 Arbitration Tribunal’s September 18, 2022 ruling against EIS, which was filed as Docket 2 30-1 in Morgan; (3) the AAA’s Commercial Arbitration Rules and Mediation Procedures; 3 and (4) the AAA’s Active Rules. (Doc. No. 28-2 at 2.) EIS does not oppose the request for 4 judicial notice. (See generally Doc. No. 29.) However, the Court does not rely on these 5 documents in reaching its conclusion below. Accordingly, the Court DENIES AS MOOT 6 Plaintiff’s request for judicial notice. 7 IV. DISCUSSION 8 EIS moves to compel arbitration, asserting the Parties agreed to arbitrate questions 9 of arbitrability and that EIS may enforce the Arbitration Agreement as either a direct party 10 or a third-party beneficiary. (Doc. No. 26 at 14–18.) Plaintiff responds that EIS’s motion 11 must be denied because EIS fails to prove that an agreement to arbitrate claims exists 12 between the Parties, EIS waived its right to compel arbitration by substantially participating 13 in court litigation, the agreement to arbitrate is unconscionable, and even if the agreement 14 is valid, the dispute underlying this case falls outside the scope of the Arbitration 15 Agreement. (Doc. No. 28 at 7.) Plaintiff does not dispute whether EIS may enforce the 16 Arbitration Agreement. (See generally id.) Because it is foundational, the Court begins by 17 analyzing Plaintiff’s challenge to the existence of an agreement to arbitrate. 18 A. Existence of Agreement to Arbitrate 19 Plaintiff argues EIS fails to offer evidence of an agreement to arbitrate. (Doc. No. 20 28 at 14.) Specifically, Plaintiff asserts the declaration of CIC/ECS employee Dan Smith 21 is made without personal knowledge, and that EIS fails to provide proof that Plaintiff 22 actually submitted acknowledgement of the agreement to arbitrate. (Id.) 23 1. Mr. Smith’s Declaration Is Admissible 24 EIS submits a declaration from Dan Smith, the Director of Product Operations for 25 CIC/ECS. (Smith Decl. ¶ 1.) Plaintiff does not appear to meaningfully dispute the veracity 26 of Mr. Smith’s declaration. Rather, Plaintiff states EIS “has offered a generic declaration 27 of an individual without personal knowledge of Plaintiff’s alleged acquiescence to the 28 arbitration agreement.” (Doc. No. 28 at 14.) 1 In resolving a motion to compel arbitration, “[t]he summary judgment standard [of 2 Federal Rule of Civil Procedure 56] is appropriate because the district court’s order 3 compelling arbitration ‘is in effect a summary disposition of the issue of whether or not 4 there had been a meeting of the minds on the agreement to arbitrate.’” Hansen v. LMB 5 Mortg. Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021) (citation omitted). This means that the 6 party seeking to compel arbitration, as under the summary judgment standard, bears the 7 initial burden of informing the court of the basis for its motion, and of identifying those 8 portions of the pleadings and discovery responses that demonstrate the absence of a 9 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material 10 facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 11 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient 12 evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 13 Mr. Smith has been employed by CIC for over 14 years. (Smith Decl. ¶ 1.) His duties 14 require him to be familiar with “how consumers enroll, the forms they must complete to 15 enroll . . . webpages a consumer would have encountered to complete their enrollment . . . 16 [and] which links or button the consumer clicked on,” among other areas. (Id.) Mr. Smith’s 17 knowledge is based on information “acquired in the course and scope of [his] job 18 responsibilities and through the review of pertinent documents maintained as business 19 records[.]” (Id.) Additionally, “[b]ased on [his] familiarity with the CreditWorks 20 enrollment process and Experian’s databases that store consumer account information, [he 21 is] able to retrieve a consumer’s CreditWorks membership information upon receipt of that 22 consumer’s personally identifiable information.” (Id.) Mr. Smith declares that when 23 Plaintiff successfully enrolled in CreditWorks, she “had to complete a single webform.” 24 (Id. ¶ 3.) This webform “as it would have appeared when Plaintiff enrolled in CreditWorks” 25 is attached to his declaration as “Exhibit 1.” (Id.) 26 Plaintiff does not dispute that she successfully created a CreditWorks account. (See 27 generally Doc. No. 28.) Mr. Smith’s declaration establishes that Plaintiff could not have 28 1 created an account unless she completed the webform, depicted in Exhibit 1, and clicked 2 the “Create Your Account” button. (Smith Decl. ¶¶ 3, 5.) 3 Mr. Smith’s declaration establishes that he does have personal knowledge of the 4 enrollment process as evidenced by his duties and responsibilities over the past 14 years as 5 an employee of CIC and having reviewed internal records and documents. (Id. ¶ 1.) Also, 6 “[p]ersonal knowledge may be inferred from a declarant’s position.” In re Kaypro, 218 7 F.3d 1070, 1075 (9th Cir. 2000). The Court finds Mr. Smith sufficiently demonstrated he 8 has personal knowledge of the facts asserted in his declaration. Scribner v. TransUnion 9 LLC, --- F. Supp. 3d ----, No. 2:23-cv-02722-JAM-CKD, 2024 WL 3274838, at *2–3 (E.D. 10 Cal. July 2, 2024) (holding declaration by Dan Smith as to enrollment process was based 11 on his personal knowledge as an employee of CIC over the past 14 years). Because Plaintiff 12 does not dispute that she successfully created a CreditWorks account, there is only one 13 reasonable conclusion given the enrollment process in effect at the time: Plaintiff was 14 presented with the website depicted in Exhibit 1 and clicked the button entitled “Create 15 Your Account.” The Court next considers whether, by doing so, Plaintiff agreed to arbitrate 16 her claims. 17 2. A Valid Arbitration Agreement Exists 18 Next, Plaintiff contends EIS fails to provide proof of Plaintiff’s signature, evidence 19 of her initials, evidence of activity at an IP address that belongs to her, or any other reliable 20 proof of an agreement to the Terms of Use, which includes the Arbitration Agreement. 21 (Doc. No. 28 at 14–15.) This, however, is unnecessary in this context. 22 “[M]utual manifestation of assent, whether by written or spoken word or by conduct, 23 is the touchstone of contract.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th 24 Cir. 2014) (citing Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29 (2d Cir. 2002)). 25 Parties may manifest assent through their conduct; “[h]owever, [t]he conduct of a party is 26 not effective as a manifestation of his assent unless he intends to engage in the conduct and 27 knows or has reason to know that the other party may infer from his conduct that he 28 assents.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 855 (9th Cir. 2022) 1 (citation omitted). The “principle of knowing consent” required to establish contract 2 formation “applies with particular force to provisions for arbitration,” Knutson, 771 F.3d 3 at 566, and with equal force to contracts formed online, Berman, 30 F.4th at 855–56. 4 Historically, courts viewed contracts formed on the Internet as either “‘clickwrap’ 5 (or ‘click-through’) agreements, in which website users are required to click on an ‘I agree’ 6 box after being presented with a list of terms and conditions of use” or “‘browsewrap’ 7 agreements, where a website’s terms and conditions of use are generally posted on the 8 website via a hyperlink at the bottom of the screen.” Nguyen, 763 F.3d at 1175–76. But 9 now, online agreements are viewed as falling on a spectrum between “clickwrap” and 10 “browsewrap.” Berman, 30 F.4th at 856. Courts routinely find agreements falling closer to 11 the clickwrap end of the spectrum to be enforceable because the consumer has received 12 notice of the terms being offered and “knows or has reason to know that the other party 13 may infer from his conduct that he assents” to those terms. Id. Courts are “more reluctant 14 to enforce browsewrap agreements because consumers are frequently left unaware that 15 contractual terms were even offered, much less that continued use of the website will be 16 deemed to manifest acceptance of those terms.” Id. In a sign-in wrap, or a “modified 17 clickwrap agreement,” a user is “notified of the existence of the website’s terms of use and 18 advise[d] . . . that by making some type of affirmative act, often by clicking a button, she 19 is agreeing to the terms of service.” Moyer v. Chegg, Inc., No. 22-CV-09123-JSW, 2023 20 WL 4771181, at *4–5 (N.D. Cal. July 25, 2023) (finding that a modified clickwrap 21 agreement demonstrated mutual assent to arbitrate). 22 Here, Plaintiff received the following disclosure in bolded text immediately above 23 the “Create Your Account” button when creating her account: “By clicking ‘Create Your 24 Account’: I accept and agree to your Terms of Use Agreement[.]” (Doc. No. 26-2 at 7.) 25 The phrase “Terms of Use Agreement” in the disclosure was a blue hyperlink that, if 26 clicked, would have presented Plaintiff with the full text of the Terms of Use, including 27 the Arbitration Agreement. (Id.) Further, the “Terms of Use Agreement” hyperlink is 28 “conspicuously distinguished from the surrounding text in bright blue font, making its 1 presence readily apparent.” Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 516 (9th Cir. 2 2023). The notice is conspicuously displayed directly above the “Create Your Account” 3 button and is in regular sized, bold font. (Doc. No. 26-2 at 7.) The language “By clicking 4 ‘Create Your Account’: I accept and agree to your Terms of Use Agreement” makes clear 5 that the user’s action constitutes a manifestation of an intent to be bound. See Nguyen, 763 6 F.3d at 1177; Saucedo v. Experian Info. Sols., Inc., No. 1:22-cv-01584-ADA-HBK, 2023 7 WL 4708015, at *5 (E.D. Cal. July 24, 2023). 8 In this way, the Terms of Use is “somewhat like a browsewrap agreement in that the 9 terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in 10 that the user must do something else – click [‘Create Your Account’] – to assent to the 11 hyperlinked terms.” DeVries v. Experian Info. Sols., Inc., No. 16-cv-02953-WHO, 2017 12 WL 733096, at *5 (N.D. Cal. Feb. 24, 2017) (citation omitted). The Terms of Use is thus 13 most like a “modified clickwrap agreement” or “sign-in wrap” because the CreditWorks 14 sign-up screen informs users that if they click a button (the “Sign Up” button), they agree 15 to the Terms of Use. 16 Moreover, “[a] user’s click of a button can be construed as an unambiguous 17 manifestation of assent only if the user is explicitly advised that the act of clicking will 18 constitute assent to the terms and conditions of an agreement.” Berman, 30 F.4th at 857. 19 “[T]he notice must explicitly notify a user of the legal significance of the action she must 20 take to enter into a contractual agreement.” Id. at 858. The Court finds the CreditWorks 21 sign-up screen effectively notified Plaintiff of the existence of the Terms of Use and 22 advised that creation of an account constituted acceptance of those terms. Although 23 Plaintiff was not required to provide her signature or initials to indicate her assent, EIS 24 provided the Terms of Use adjacent to the “Create Your Account” button, included a 25 hyperlink to the terms in a contrasting color, and informed the user that “Create Your 26 Account” would indicate assent to the terms. Thus, because Plaintiff was informed that by 27 clicking “Create Your Account” she was affirming that she would be bound by the Terms 28 of Use, Plaintiff unambiguously assented to the Terms of Use. See Driskill v. Experian 1 Info. Sols., Inc., --- F. Supp. 3d ----, No. 24-cv-00583-AMO, 2024 WL 4453292, at *4 2 (N.D. Cal. Oct. 8, 2024) (holding “there is no reasonable dispute that Driskill assented to 3 the Terms of Use” because “the CreditWorks sign up screen makes the assent-manifesting 4 actions—creating an account and acceptance of the Terms of Use—clear, and clicking the 5 ‘Create Your Account’ button is the way to complete that action”); Rangel v. Experian 6 Info. Sols., Inc., --- F. Supp. 3d ----, No. 1:24-cv-00642-JLT-CDB, 2024 WL 4203361, at 7 *4 (E.D. Cal. Sept. 16, 2024) (“Because Plaintiffs were informed that by clicking 8 ‘Continue’ they were affirming that they would be bound by the Terms of Use, Plaintiffs 9 unambiguously assented to the Terms of Use.”); Graf v. Match.com, LLC, CV 15–3911 10 PA (MRWx), 2015 WL 4263957, at *4 (C.D. Cal. July 10, 2015) (holding that an 11 arbitration agreement was valid because the users were required to affirmatively agree to 12 the Terms of Use by clicking “Continue” when the user was informed that by clicking that 13 button, they would be bound by the Terms of Use that were hyperlinked and available for 14 review). EIS notes, and Plaintiff does not dispute, that Plaintiff enrolled in CreditWorks 15 on March 10, 2020, with her last login occurring on July 23, 2023. (Smith Decl. ¶¶ 3, 5.) 16 Thus, proof of Plaintiff’s signature, initials, or other evidence is not required, as the 17 creation of Plaintiff’s account constituted acceptance of the Terms of Use. 18 Accordingly, there is no reasonable dispute that Plaintiff assented to the Terms of 19 Use, and the Court concludes a valid agreement to arbitrate exists. 20 B. Delegation of Arbitrability 21 Having found that a valid agreement to arbitrate exists, the Court turns to the 22 purported delegation provision within. Plaintiff does not challenge—let alone mention— 23 the delegation clause. (See generally Doc. No. 28.) 24 The United States Supreme Court has “recognized that parties can agree to arbitrate 25 ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate 26 or whether their agreement covers a particular controversy.” Rent-A-Center., W., Inc. v. 27 Jackson, 561 U.S. 63, 68–69 (2010). The Court explained that the arbitrability of such 28 threshold questions “merely reflect[s] the principle that arbitration is a matter of contract . 1 . . [a]n agreement to arbitrate a gateway issue is simply an additional, antecedent agreement 2 the party seeking arbitration asks the federal court to enforce, and the FAA operates on this 3 additional arbitration agreement just as it does on any other.” Id. at 69–70. However, “[t]o 4 challenge the delegation’s validity, Plaintiff must both mention the delegation provision 5 and make arguments specific to it.” Fischer v. Kelly Servs. Glob., LLC, No.: 23-CV-1197 6 JLS (JLB), 2024 WL 382181, at *15 (S.D. Cal. Jan. 31, 2024) (citing id. at 72–74); see 7 Brennan v. Opus Bank, 796 F.3d 1125, 1133 (9th Cir. 2015) (“[S]ince [the plaintiff] failed 8 to make any arguments specific to the delegation provision, and instead argued that the 9 [Arbitration Clause] as a whole is unconscionable under state law, we need not consider 10 that claim, because it is for the arbitrator to decide in light of the parties’ ‘clear and 11 unmistakable’ delegation of that question[.]” (citations and internal quotation marks 12 omitted)). 13 Here, Plaintiff’s remaining arguments challenge the conscionability of the 14 arbitration provision as a whole, whether this case arises out of or relates to the Terms of 15 Use, and whether EIS waived its right to compel arbitration. (Doc. No. 28 at 15–26.) As to 16 Plaintiff’s unconscionability arguments, she contends first that requiring a consumer to 17 participate in an arbitration governed by the Commercial Dispute Resolution Procedures is 18 unconscionable, that the Arbitration Agreement is a procedurally unconscionable contract 19 of adhesion, and the Arbitration Agreement is substantively unconscionable due to the one- 20 sided nature of its benefits. (Id. at 21–24.) None of these attacks criticize the 21 conscionability of the arbitration provision’s delegation clause specifically, and Plaintff 22 does not “explain how th[e] provisions [she cites] make the fact of an arbitrator deciding 23 arbitrability unconscionable.” Holley-Gallegly v. TA Operating, LLC, --- F.4th ----, No. 24 22-55950, 2023 WL 4674372, at *4 (9th Cir. July 21, 2023). 25 However, whether a party has waived its right to arbitrate is “presumptively for a 26 court and not an arbitrator to decide.” Martin v. Yasuda, 829 F.3d 1118, 1123 (9th Cir. 27 2016). If parties “intend that an arbitrator decide” the issue of waiver, the parties can rebut 28 that presumption with “clear and unmistakable language to that effect” in their arbitration 1 agreement. Id. at 1124. As Martin noted, the presumption is not overcome even with an 2 agreement stating “that ‘[a]ny controversy . . . involving the construction or application of 3 the terms, provisions, or conditions of this Agreement or otherwise arising out of or related 4 to this Agreement shall likewise be settled by arbitration’” or that “[a]ll determinations as 5 to the scope, enforceability and effect of this arbitration agreement shall be decided by the 6 arbitrator, and not by a court.” Id. at 1124 (alterations in original) (citation omitted). 7 EIS argues the Parties’ intent to delegate the waiver issue to arbitration is evidenced 8 by the clear and unmistakable language in the Arbitration Agreement, which, at the time 9 of Plaintiff’s last login on July 23, 2023, stated: 10 All issues are for the arbitrator to decide including, but not limited to, . . . (iii) whether you or ECS, through litigation conduct or otherwise, waived the 11 right to arbitrate . . . . Pursuant to this agreement, the arbitrator has been 12 delegated with, and possesses, exclusive authority to resolve all of the above- enumerated types of disputes. 13
14 (Doc. No. 26-2 at 36 (emphasis added).) Plaintiff does not make any argument to the 15 contrary. (See generally Doc. No. 28.) The Court finds the arbitration clause contains a 16 clear and unmistakable provision that the question of waiver based on litigation should be 17 decided by the arbitrator. Indeed, while the clear and unmistakable standard is a high bar, 18 no ambiguity exists in the phrase “[a]ll issues are for the arbitrator to decide, including . . 19 . whether you or ECS, through litigation conduct or otherwise, waived the right to 20 arbitrate[.]” 21 Accordingly, the Court orders that all questions concerning the arbitrability of the 22 claims in this action be determined by the arbitrator. In the event the arbitrator decides the 23 provision is enforceable, the arbitrator may consider the merits of Plaintiff’s claims. 24 C. Stay of Action 25 Section 3 of the FAA provides that the Court “shall on application of one of the 26 parties stay the trial of the action until such arbitration has been had in accordance with the 27 terms of the agreement.” 9 U.S.C. § 3. Experian has made such a request as to the claims 28 | |} against it. (Doc. 26-1 at 18.) The Court stays this action as to the claims against Experian 2 ||pending completion of arbitration. See Hansber v. Ulta Beauty Cosmetics, LLC, 640 F. 3 || Supp. 3d 947, 960 (E.D. Cal. 2022) (explaining that the court has discretion to “control its 4 ||docket” and “stay litigation among nonarbitrating parties pending the outcome of the 5 || arbitration”); see also Portland Gen. Elec. Co. v. Liberty Mut. Ins. Co., 862 F.3d 981, 986 6 || (9th Cir. 2017) (holding that the district court erred in denying a stay when the scope of 7 || arbitration was delegated to an arbitral tribunal). 8 CONCLUSION 9 Based on the foregoing: 10 1. Defendant EIS’s motion to compel arbitration is GRANTED, (Doc. No. 26); 11 2. Pursuant to the FAA, the Court STAYS the judicial proceedings pending the 12 outcome of any arbitration. See 9 U.S.C. § 3; Smith v. Spizzirri, 601 U.S. 472, 13 478 (2024); 14 3. The Parties are ordered to file a joint status report with this Court, detailing 15 the progress of the arbitration in 180 days from the date of this order; 16 4. The Parties are further required to notify the Court that arbitration proceedings 17 have concluded within fourteen (14) days of the issuance of the arbitrator’s 18 decision; 19 5. Because the action is now stayed pending the completion of arbitration, all 20 dates currently on the calendar in this case are VACATED. 21 22 IT IS SO ORDERED. 23 Dated: December 6, 2024 © ¢ 24 Hon, Anthony J.Battaglia 25 United States District Judge 26 27 28 15