Clark v. Trans Union LLC

Opinion

----oo0oo---- BOBBY J. CLARK, JR., No. 2:24-cv-00783 WBS CKD Plaintiff, v. MEMORANDUM AND ORDER RE: EXPERIAN’S MOTION TO COMPEL TRANS UNION LLC; EXPERIAN ARBITRATION INFORMATION SOLUTIONS, INC.; LLC; ONEMAIN FINANCIAL GROUP, LLC; and ALLY FINANCIAL INC., Defendants. ----oo0oo---- Plaintiff Bobby Clark brought this action against defendants Trans Union LLC, Experian Information Solutions Inc., Equifax Information Services LLC, OneMain Financial Group LLC, and Ally Financial Inc., alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785 et seq. Defendant Experian Information Solutions now moves to compel plaintiff to arbitrate his claims against Experian. (Docket No. 43.) I. Discussion Defendant Experian Information Solutions, Inc. (“EIS”) is a credit reporting agency. (Compl. (Docket No. 1) ¶ 19). EIS is affiliated with ConsumerInfo.com, Inc., which also does business as Experian Consumer Services (collectively, “CIC/ECS”). (See Smith Decl. (Docket No. 32-4 at 1-5) ¶ 1-2.) Both EIS and CIC/ECS are wholly-owned subsidiaries of Experian Holdings, Inc. (Id. ¶ 2.) Plaintiff signed up for a credit-monitoring account via the CIC/ECS website (see Clark Decl. (Docket No. 44-1) ¶ 4; Smith Decl. ¶ 3),1 which had Terms of Use containing an arbitration agreement. Plaintiff alleges that in 2023, he paid off outstanding balances on several past-due accounts, which Experian continued to report as outstanding. (Compl. ¶¶ 53-59, 60-65.) Despite disputes filed by plaintiff, Experian did not correct the account balances on plaintiff’s credit reports. (See id. ¶¶ 66-68, 77, 170, 173.) Plaintiff’s claims allege that Experian “failed to adequately review all of the information provided to it” and “failed to conduct a reasonable reinvestigation” of plaintiff’s disputes. (Id. ¶¶ 78-79, 169, 172.) The Federal Arbitration Act (“FAA”) provides that a written provision in a “contract evidencing a transaction involving commerce to settle by arbitration a controversy

1 Plaintiff concedes that he signed up for an “Experian account,” but does not specify how he did so. (See Clark Decl. ¶ 4.) Defendant’s declaration states that CIC/ECS business records show plaintiff signed up for an account via the CIC/ECS website (Smith Decl. ¶ 3), which plaintiff does not dispute. thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The FAA “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). “[T]he FAA limits courts’ involvement to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119 (9th Cir. 2008) (internal quotation marks omitted). A. Existence of Arbitration Agreement Plaintiff argues that the declaration of CIC/ECS employee Dan Smith fails to establish the existence of an arbitration agreement between the parties.2 This argument lacks merit. According to his declaration, Mr. Smith has been the Director of Product Operations at CIC/ECS since January 2010.

2 Plaintiff does not appear to meaningfully dispute the veracity of Mr. Smith’s declaration. Rather, plaintiff objects to the declaration on the ground that Mr. Smith lacks personal knowledge. However, this type of objection is “duplicative of the summary judgment standard itself.” Alvarez v. T-Mobile USA, Inc., 2:10-cv-2373 WBS GGH, 2011 WL 6702424, at *3 (E.D. Cal. Dec. 21, 2011). “Statements based on improper legal conclusions or without personal knowledge are not facts and can only be considered as arguments, not as facts, on a motion for summary judgment. Instead of challenging the admissibility of this evidence, lawyers should challenge its sufficiency.” Id. Because plaintiff’s evidentiary objection is “superfluous” at this stage, it is hereby OVERRULED. See id. (Smith Decl. ¶ 1.) His job duties require that he be familiar with “how consumers enroll, the forms they must complete to enroll, as well as the Terms of Use governing such services,” along with the “electronic databases that store consumer enrollment information, including the webpages a consumer would have encountered to complete their enrollment . . ., the personally identifiable information entered when enrolling, which links or buttons the consumer clicked on, and date and time of the consumer’s acceptance of the Terms of Use.” (Id.) Mr. Smith states that he reviewed the CIC/ECS database and found that plaintiff signed up for an account on February 21, 2018. (Id. ¶ 3.) He also describes the webpage plaintiff was presented with in order to enroll. (See id.) As the Ninth Circuit has explained, “an enforceable contract will be found . . . if: (1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022). Under this standard, the Smith declaration is plainly sufficient to establish that plaintiff “affirmatively acknowledge[d] the agreement.” See Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014). The declaration explains that on the webpage where plaintiff enrolled, “[i]mmediately below the boxes to enter and confirm his password, was the following disclosure: ‘By clicking “Submit Secure Order”: I accept and agree to your Terms of Use Agreement, as well as acknowledge receipt of your Privacy Policy and Ad Targeting Policy.’” (Smith Decl. ¶ 3.) Based on the screenshot of the website attached to the declaration, this disclosure was set in bolded black typeface and was approximately the same font size as other text on the webpage. (See Docket No. 43-2 at 9.) The phrase “Terms of Use Agreement” was “off-set in blue text and, if clicked, would have presented the consumer with the full text of the agreement” (i.e., the full agreement was hyperlinked). (Smith Decl. ¶ 4.) The “Submit Secure Order” button was “immediately below the disclosure.” (Id.) This formatting made the Terms of Use disclosure “reasonably conspicuous.” See Berman, 30 F.4th at 856-57. The Smith declaration also explains that plaintiff did, in fact, click the “Submit” button, as he “would not have been able to successfully enroll” unless he did so. (Smith Decl. ¶ 4.) And it is undisputed that plaintiff created an Experian account. (See Clark Decl. ¶ 4.) Clicking a button is a sufficient manifestation of assent where, as here, “the user is explicitly advised that the act of clicking will constitute assent to the terms.” See Berman, 30 F.4th at 857. District courts routinely find declarations of corporate employees like the one at issue here sufficient to establish the existence of an arbitration agreement. See, e.g., Demaria, 2023 WL 6390151, at *10 (declaration explaining “access to records maintained by [defendant] in its usual course of business, the process by which [users] created profiles and login information” on the online platform, and “how [p]laintiff would have accessed and signed” the arbitration agreement was sufficient to “establish [the declarant’s] personal knowledge” that there was a “valid” agreement between the parties). Indeed, Judge Mendez recently held that a valid agreement to arbitrate existed based on a substantially similar declaration provided by Mr. Smith, see Scribner v. Trans Union LLC, No. 2:23-cv-02722 JAM CKD, 2024 WL 3274838, at *3–5 (E.D. Cal. July 2, 2024), as have several other judges in this District in considering similar declarations by Experian employees, see Saucedo v. Experian Info. Sols., Inc., No. 1:22-cv-01584 ADA HBK, 2023 WL 4708015, at *4-6 (E.D. Cal. July 24, 2023); Capps v. JPMorgan Chase Bank, N.A., No. 2:22-cv-00806 DAD JDP, 2023 WL 3030990, at *4-5 (E.D. Cal. Apr. 21, 2023). In rebuttal to the Smith declaration, plaintiff’s declaration states the following: (1) “When I signed up for my online Experian account, I did not click anything that I recall indicating that I would be waiving my right to a jury”; and (2) “I did not see an arbitration agreement, or any mention of an arbitration agreement, when I signed up for my online Experian account.” (Clark Decl. ¶¶ 6-7.) Even taken as true, these statements do not create a genuine dispute of fact. Plaintiff does not dispute that he visited the webpage in question, that he signed up for an account, that the webpage appeared as defendant describes it, or that he had an opportunity to review the Terms of Use. And plaintiff “cannot avoid the terms of the contract on the ground that he failed to read it before signing, especially when he had a legitimate opportunity to review it.” Lee v. Ticketmaster L.L.C., 817 F. App’x 393, 395 (quoting Marin Storage & Trucking, Inc. v. Benco Contracting & Eng’g, Inc., 89 Cal. App. 4th 1042, 1049 (1st Dist. 2001), and Mohamed v. Uber Techs., Inc., 109 F. Supp. 3d 1185, 1198 (N.D. Cal. June 9, 2015)) (cleaned up); see also Cordas v. Uber Techs., Inc., 228 F. Supp. 3d 985, 990 (N.D. Cal. 2017) (enforcing arbitration agreement where employee’s declaration stated that user “could not have created an Uber account . . . without [accepting the Terms & Conditions],” and plaintiff “offer[ed] no testimony or evidence regarding what he did see on his screen” or otherwise rebutted the declaration). In arguing that there is no valid arbitration agreement, plaintiff relies on several cases that are both non- binding and inapposite.3 Plaintiff does cite two cases that are directly on point, wherein out-of-circuit district courts 3 See Sgouros v. TransUnion Corp., 817 F.3d 1029, 1035 (7th Cir. 2016) (“the web pages on which [plaintiff] completed his purchase contained no clear statement that his purchase was subject to any terms and conditions of sale,” but rather “actively misl[ed]” plaintiff by indicating that “clicking on the box constituted his authorization for TransUnion to obtain his personal information”) (emphasis in original); Lamonaco v. Experian Info. Sols., Inc., No. 6:23-cv-1326 PGB LHP, 2024 WL 1703112, at *5 (M.D. Fla. Apr. 19, 2024) (declaration stating that plaintiff would not have been able to use Experian service without assenting to terms of use was insufficient to establish existence of agreement where plaintiff did not “admit to accessing the defendant’s website or to signing up for an account”); Austin v. Equifax Info. Servs., LLC, No. 3:22-cv-707, 2023 WL 8646275, at *7 (E.D. Va. Dec. 14, 2023) (“[n]othing in [Experian employee’s] job description disclosed personal knowledge of how the system at issue works,” his declaration did not identify the Experian business records relied upon, and he refused to testify before the court concerning the content of the declaration); Dillon v. BMO Harris Bank, N.A., 173 F. Supp. 3d 258, 265–66 (M.D.N.C. 2016) (declaration company relied upon had several deficiencies, including that declarant was not an employee, did not explain how he became familiar with company’s practices, and did not aver that the webpage at issue was presented to plaintiff). concluded that Experian had failed to establish the existence of an arbitration agreement. See Cox v. Consumerinfo.com, Inc., No. 3:24-cv-0033, 2024 WL 3625859, (S.D. W. Va. Aug. 1, 2024); Newton v. Experian Information Solutions, Inc., No. 6:23-cv-059, 2024 WL 3451895 (S.D. Ga. July 18, 2024). Notably, these decisions (both pending appeal) relied on Sgouros, which, as indicated in footnote 3, is inapposite. For the reasons discussed herein, the court finds these decisions unpersuasive and against the weight of authority. Accordingly, the court concludes that the parties are bound by the Terms of Use Agreement linked on the webpage where plaintiff created his account. B. Scope of Arbitration Agreement “Although gateway issues of arbitrability presumptively are reserved for the court, the parties may agree to delegate them to the arbitrator.” Momot v. Mastro, 652 F.3d 982, 987 (9th Cir. 2011). Courts may “assume that the parties agreed to arbitrate arbitrability” only if “there is clear and unmistakable evidence that they did so.” Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 72 (2019). An “express agreement” to arbitrate arbitrability, evinced by a contract’s “language[] delegating to the arbitrators the authority to determine the validity or application of any of the provisions of the arbitration clause,” constitutes clear and unmistakable evidence. Momot, 652 F.3d at 988 (citations omitted). Where such an express delegation provision exists, unless a party opposing enforcement of the agreement “challenge[s] the delegation provision specifically, [courts] must treat it as valid . . . .” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 72 (2010). “When the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless.” Henry Schein, 586 U.S. at 63. “In those circumstances, a court possesses no power to decide the arbitrability issue.” Id. Here, both the original and amended Terms of Use Agreement state that “[all] issues are for the arbitrator to decide,” including “the scope and enforceability of this arbitration provision.” (See Def.’s Ex. 3 (Docket No. 43-2 at 10-41) at 7; Def.’s Ex. 4 (Docket No. 43-2 at 42-57) at 3.) This provision expressly delegates the question of arbitrability to the arbitrator, and plaintiff does not argue otherwise. Accordingly, the court concludes that it must compel arbitration on the question of whether the agreement encompasses plaintiff’s claims. See Capps, 2023 WL 3030990, at *6 (concluding that the parties “clearly and unmistakably delegated the question regarding the scope of the [agreement] to the arbitrator” where Experian arbitration agreement contained identical delegation language); Scribner, 2024 WL 3274838, at *5 (same). II. Conclusion Because the evidence before the court indicates that a valid agreement to arbitrate exists and the agreement clearly and unmistakably delegates the issue of arbitrability to the arbitrator, the court must compel the claims against Experian to be submitted to arbitration. See Dean Witter, 470 U.S. at 218. —— mE III IRIE IERIE IIE REE RID SUIS IRIE NIE OI IRIE IRIE ISIE IIE IIIB ESS

IT IS THEREFORE ORDERED that Experian’s motion to compel arbitration (Docket No. 43) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that the claims against Experian Information Solutions, Inc. are STAYED pending arbitration.‘ Dated: September 3, 2024 hte a ak pag! s-~<—— UNITED STATES DISTRICT JUDGE I] 4 This partial stay does not affect the claims brought against any other defendants. 10