Driskill v. Experian Information Solutions, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TRAVIS DRISKILL, Case No. 24-cv-00583-AMO

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. COMPEL ARBITRATION AND DENYING MOTION FOR DISCOVERY 10 EXPERIAN INFORMATION SOLUTIONS, INC., et al., Re: Dkt. Nos. 37, 42 11 Defendants.

12 13 This is a Fair Credit Reporting Act (“FRCA”) case. Before the Court are Defendant 14 Experian Information Solutions, Inc.’s (“Experian”) motion to compel arbitration and Plaintiff 15 Travis Driskill’s motion for discovery regarding Experian’s motion to compel arbitration. The 16 matters are fully briefed and suitable for decision without oral argument. Accordingly, the hearing 17 set for August 29, 2024, was vacated. See ECF 60; Civ. L.R. 7-1(b). Having read the parties’ 18 papers and carefully considered their arguments and the relevant legal authority, and good cause 19 appearing, the Court hereby GRANTS Experian’s motion to compel arbitration and DENIES 20 Driskill’s motion for discovery. 21 I. BACKGROUND 22 In February 2022, Driskill obtained his credit file disclosure from Defendant Experian, 23 which “contained eleven Affirm accounts that Experian was wrongfully reporting as belonging” as 24 a purported result of identity theft. Compl. ¶¶ 33-35, 47.1 Driskill disputed the reporting to 25

26 1 When evaluating a motion to compel arbitration, courts apply a standard similar to a motion for summary judgment, construing all facts and reasonable inferences in a light most favorable to the 27 non-moving party. See Lomeli v. Midland Funding, LLC, No. 19-CV-01141-LHK, 2019 WL 1 Experian, and in response, Experian deleted most of the accounts from his credit. Compl. ¶¶ 38- 2 39. Experian did not delete two Affirm accounts, which form the substance of Driskill’s ongoing 3 credit-reporting plight. Id. 4 Driskill reports that he first became aware of these issues on February 16, 2022, when he 5 received a notification email from Experian and he then clicked through a series of links to access 6 his credit information. Driskill Decl. (ECF 41-1) ¶¶ 3-7. When Driskill obtained his credit file 7 disclosure, he enrolled in CreditWorks, a service provided by Experian affiliate ECS, and he 8 agreed to the CreditWorks Terms of Use. Smith Decl. (ECF 37-2) ¶ 3. The online form he 9 completed required Driskill to enter his personal information – i.e., his name, address, phone 10 number, and e-mail address. Id. After he entered his personal information, Driskill had to click 11 the “Create Your Account” button on the webform in order to enroll. Id. Immediately below the 12 boxes to enter his e-mail address and password, was the following disclosure: “By clicking ‘Create 13 Your Account’: I accept and agree to your Terms of Use Agreement, as well as acknowledge 14 receipt of your Privacy Policy.” Id. 15 The phrase “Terms of Use Agreement” in the disclosure was a hyperlink off-set in blue 16 text and, if clicked, would have presented the consumer with the full text of the agreement. Smith 17 Decl. ¶ 4. Thus, before clicking the “Create Your Account” button, the consumer could view the 18 entire text of the Terms of Use by clicking on the blue-highlighted hyperlink “Terms of Use 19 Agreement.” Id. When a consumer clicked on the “Terms of Use Agreement” hyperlink, an 20 additional window would open within the consumer’s web browser containing the entire text of 21 the Terms of Use Agreement. Id. Immediately below the disclosure was a large purple button that 22 reads: “Create Your Account.” Id. The webform, the disclosure, and the “Create Your Account” 23 button appeared on a single webpage. Id. Experian presents the following representation of the 24 webpage as it would have appeared at the time Driskill saw it: 25 26 27 ] Tell Us About Yourself When you register today, you'll gat: ~ Free Experian Credit Report and FICO™ Score 2 First Name Last Name □ ~ Increase your FICO” Score with Experian Boost ~ Reportand Score Refreshed Every 30 Days On 3 Current Street Address Apt, Unit Sign In FICO Score Monitoring with Experian Data 4 ~ Experian Credit Monitoring and Alerts IP Gadde City State ~ Free Dark Web Surveillance Report ; Free Personal Privacy Scan 5 ~ Credit Cards and Loans Matched for You Have youlived atthis address for 6 months ormore? (@) Yes (_) No 6 ‘Create Your Account Email Address: This will beyour username 7 P: 4 Completely Free and Easy ‘asswor 8 No purchase or credit card required. Checking a your own credit will NOThurt yourcredit scores. 9 Whatis the main reason you visited Experian today? Please select an option 10 *Credit score calculated based on FICO® Score &imodel. Your lender orinsurer © may Soothe FICO® Score than FICO™ Score 8, or another type of credit Safe and Secure The in formation you provide will be transferred to oyna neous eae errant to et area | authorize Consumerinfo.com, Inc., also referredtoas Experian Consumer BZ 12 Services (ECS"), to obtain my credit report and/or credit score(s), on a recurring . aq basis to: gent, 3 * Provide credit report (and/orcredit score) to me for review while | Entrust TrustedSite’ 13 have an account with ECs. — CERTIFIED SECUR = + Notify me of other products and services that may be available tome ae, through ECS orthrough unaffiliated third parties. v 1 4 « Notify me of credit opportunities and advertised credit offers. lunderstand that! may withdraw this authorization at any time by contacting ~ ECs. 15

. Z 18 Smith Decl. Ex 1 (ECF 37-2 at 7). 19 After entering his information, Driskill clicked the “Create Your Account” button, thereby 20 accepting and agreeing to the Terms of Use Agreement. Smith Decl. 5. Driskill would not have 21 been able to successfully enroll in CreditWorks unless he clicked that button. /d. 22 Every version of the Terms of Use that was in effect during Driskill’s enrollment in 23 CreditWorks contained an arbitration agreement that requires him to litigate, among other things, 24 || all claims against “ECS” that “relate to” or “arise out of” his ECS membership. Smith Decl. □□ 6. 25 The Arbitration Agreement expressly defines “ECS” to include its “affiliates,” including 26 || “Experian Information Solutions, Inc.” Id. 6, Ex. 3. 27 On February 16, 2022, Driskill received an email credit alert from Experian and clicked a 28 || link to Experian’s website, where he then input his personal information and set up an account. rn

1 Driskill Decl. (ECF 41-1) ¶¶ 3-6. Driskill denies that he ever saw or understood the arbitration 2 agreement, and he asserts that he never consented to contract away his FCRA rights. Driskill 3 Decl. ¶¶ 12-15. 4 II. DISCUSSION 5 Experian moves to compel arbitration. ECF 37 (“Mot.”). Driskill opposes on the basis 6 that there exists a factual dispute regarding his assent to the CreditWorks agreement and the 7 arbitration provision contained therein. ECF 41 (“Opp.”). Driskill additionally moves to obtain 8 discovery regarding his and other consumers’ consent to the CreditWorks agreement. ECF 42. 9 The Court addresses the motion to compel arbitration first because its analysis clarifies that no 10 further discovery is required. 11 A. Motion to Compel Arbitration 12 1. Legal Standard 13 The Federal Arbitration Act (“FAA”) provides that written arbitration agreements in 14 contracts “evidencing a transaction involving commerce . . . shall be valid, irrevocable, and 15 enforceable, save upon such grounds as exist at law or in equity for the revocation of any 16 contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quoting 9 U.S.C. § 2). 17 The FAA reflects a “liberal federal policy favoring arbitration agreements.” Gilmer v. 18 Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991) (quoting Moses H. Cone Memorial 19 Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983)). “By its terms, the [FAA] leaves 20 no place for the exercise of discretion by a district court, but instead mandates that district courts 21 shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has 22 been signed.” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in 23 original). Despite this strong policy favoring arbitration, “arbitration is a matter of contract and a 24 party cannot be required to submit to arbitration any dispute which he has not agreed so to 25 submit.” Howsam v. Dean Witter Reynolds, 537 U.S. 79, 83 (2002) (quoting Steelworkers v. 26 Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960)). 27 A court’s role under the FAA is to determine “(1) whether a valid agreement to arbitrate 1 KeyBank Nat’l Ass’n, 718 F.3d 1052, 1058 (9th Cir. 2013) (internal citation omitted). If the 2 response is affirmative on both counts, then the [FAA] requires the court to enforce the arbitration 3 agreement in accordance with its terms.” Chiron Corp. v. Ortho Diagnostic Systems, Inc., 207 4 F.3d 1126, 1130 (9th Cir. 2000) (internal citations omitted). When evaluating whether a party is 5 bound by an arbitration agreement, federal courts “‘apply ordinary state-law principles that govern 6 the formation of contracts’ to decide whether an agreement to arbitrate exists.” Norcia v. Samsung 7 Telecomms. Am., LLC, 845 F.3d 1279, 1283 (9th Cir. 2017) (quoting First Options of Chi. Inc. v. 8 Kaplan, 514 U.S. 938, 944 (1995)). 9 2. Analysis 10 Because it is foundational, the Court begins by analyzing Driskill’s challenge to the 11 existence of a contract. First it considers Driskill’s legal challenge to the contract and then takes 12 up whether his factual challenge to contract formation precludes finding mutual assent. Finally, 13 the Court considers Driskill’s assertion that Experian cannot enforce the arbitration agreement 14 because it is not a signatory. 15 a. Existence of Agreement to Arbitrate 16 Driskill argues that he did not agree to the arbitration provision contained in the 17 CreditWorks Terms of Use when he followed Experian links and created an online account and, 18 therefore, the required element of mutual assent is missing. 19 “[M]utual manifestation of assent, whether by written or spoken word or by conduct, is the 20 touchstone of contract.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014) 21 (citing Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29 (2d Cir. 2002)). Parties may 22 manifest assent through their conduct, “[h]owever, [t]he conduct of a party is not effective as a 23 manifestation of his assent unless he intends to engage in the conduct and knows or has reason to 24 know that the other party may infer from his conduct that he assents.” Berman v. Freedom Fin. 25 Network, LLC, 30 F.4th 849, 855 (9th Cir. 2022) (citation omitted). The “principle of knowing 26 consent” required to establish contract formation “applies with particular force to provisions for 27 arbitration” (Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 566 (9th Cir. 2014)), and with equal 1 Historically, courts viewed contracts formed on the Internet as either “ ‘clickwrap’ (or 2 ‘click-through’) agreements, in which website users are required to click on an ‘I agree’ box after 3 being presented with a list of terms and conditions of use” or “ ‘browsewrap’ agreements, where a 4 website’s terms and conditions of use are generally posted on the website via a hyperlink at the 5 bottom of the screen.” Nguyen, 763 F.3d at 1175-76. But now, online agreements are viewed as 6 falling on a spectrum between “clickwrap” and “browsewrap.” Berman v. Freedom Fin. Network, 7 LLC, 30 F.4th 849, 856 (9th Cir. 2022). Courts routinely find agreements falling closer to the 8 clickwrap end of the spectrum to be enforceable because the consumer has received notice of the 9 terms being offered and “knows or has reason to know that the other party may infer from his 10 conduct that he assents” to those terms. Id. Courts are “more reluctant to enforce browsewrap 11 agreements because consumers are frequently left unaware that contractual terms were even 12 offered, much less that continued use of the website will be deemed to manifest acceptance of 13 those terms.” Id. In a sign-in wrap, or a “modified clickwrap agreement,” a user is “notified of 14 the existence of the website’s terms of use and advise[d] that by making some type of affirmative 15 act, often by clicking a button, she is agreeing to the terms of service.” Moyer v. Chegg, Inc., No. 16 22-CV-09123-JSW, 2023 WL 4771181, at *4-5 (N.D. Cal. July 25, 2023) (finding that a modified 17 clickwrap agreement demonstrated mutual assent to arbitrate). 18 Here, Driskill received the following disclosure in bolded text immediately above the 19 “Create Your Account” button when creating his account: “By clicking ‘Create Your Account’: I 20 accept and agree to your Terms of Use Agreement . . .” Smith Decl., Ex. 1 (ECF 37-2 at 7). The 21 phrase “Terms of Use Agreement” in the disclosure was a blue hyperlink that, if clicked, would 22 have presented Driskill with the full text of the Terms of Use Agreement, including the arbitration 23 agreement. Smith Decl. ¶¶ 3-4, Ex. 1. Further, the “Terms of Use Agreement” hyperlink is 24 “conspicuously distinguished from the surrounding text in bright blue font, making its presence 25 readily apparent.” Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 516 (9th Cir. 2023). The 26 notice is conspicuously displayed directly above the “Create Your Account” button and is in 27 regular sized, bold font. Smith Decl., Ex. 1. The language “By clicking ‘Create Your Account’: I 1 accept and agree to your Terms of Use Agreement” makes clear that the user’s action constitutes a 2 manifestation of an intent to be bound. 3 In this way, the Terms of Use Agreement is “somewhat like a browsewrap agreement in 4 that the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in 5 that the user must do something else – click [“Create Your Account”] – to assent to the 6 hyperlinked terms.” DeVries v. Experian Info. Sols., Inc., No. 16-cv-02953-WHO, 2017 WL 7 733096, at *5 (N.D. Cal. Feb. 24, 2017) (citation omitted). The Terms of Use Agreement is thus 8 most like a “modified clickwrap agreement” or “sign-in wrap” because the CreditWorks sign up 9 screen informs users that if they click a button (the “Sign Up” button), they agree to the Terms of 10 Use. 11 The CreditWorks sign up screen effectively notified Driskill of the existence of the Terms 12 of Use and advised that creation of an account constituted acceptance of those Terms. 13 CreditWorks conspicuously provided the Terms of Use adjacent to the “Create Your Account” 14 button, included a hyperlink to the terms in a contrasting color, and informed the user that “Create 15 Your Account” would indicate assent to the terms. Based on these features, the Court concludes 16 that the website design provides constructive notice of the Terms of Use, including the arbitration 17 provision. See DeVries, 2017 WL 733096, at *6 (finding that EIS’s website design provided 18 constructive notice where “[t]he text containing the Terms and Conditions hyperlink was located 19 directly above that button and indicated that clicking ‘Submit Secure Purchase’ constituted 20 acceptance of those terms”). 21 Having found that the CreditWorks sign up screen gave conspicuous notice of the Terms 22 of Use, the analysis turns to whether Driskill unambiguously manifested assent to the hyperlinked 23 Terms of Use. Oberstein, 60 F.4th at 517. “A user’s click of a button can be construed as an 24 unambiguous manifestation of assent only if the user is explicitly advised that the act of clicking 25 will constitute assent to the terms and conditions of an agreement.” Berman, 30 F.4th at 857. 26 “[T]he notice must explicitly notify a user of the legal significance of the action she must take to 27 enter into a contractual agreement.” Id. at 858. Here, the CreditWorks sign up screen makes the 1 clicking the “Create Your Account” button is the way to complete that action. Driskill does not 2 refute this issue. Accordingly, there is no reasonable dispute that Driskill assented to the Terms of 3 Use. 4 Driskill does not otherwise contest the formation of an agreement through acceptance of 5 the Terms of Use nor the more specific acceptance of the agreement to arbitrate contained therein. 6 In light of Driskill’s limited legal attack on the existence of an agreement to arbitrate and having 7 concluded that Driskill assented to the Terms of Use, the Court concludes that an agreement to 8 arbitrate exists. 9 b. Driskill’s Factual Challenge 10 Driskill focuses much of his opposition on what he views as a material dispute of fact 11 regarding formation of the agreement to arbitrate. 12 In resolving a motion to compel arbitration, “[t]he summary judgment standard [of Federal 13 Rule of Civil Procedure 56] is appropriate because the district court’s order compelling arbitration 14 ‘is in effect a summary disposition of the issue of whether or not there had been a meeting of the 15 minds on the agreement to arbitrate.’” Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th 16 Cir. 2021) (citation omitted). This means that the party seeking to compel arbitration, as under the 17 summary judgment standard, bears the initial burden of informing the court of the basis for its 18 motion, and of identifying those portions of the pleadings and discovery responses that 19 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 20 317, 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. 21 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there 22 is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. 23 Here, Driskill factually disputes the formation of the agreement to arbitrate. He contends, 24 in essence, that he did not see the Terms of Use hyperlink and he did not know he was entering 25 into an agreement with ECS at the time that he clicked through to create an account and access his 26 consumer credit information from Experian. See Driskill Decl. ¶¶ 5-9. He reasons that his failing 27 to see the arbitration clause creates a factual dispute regarding his assent. However, Driskill’s 1 is not even inconsistent with the evidence presented by Experian. Smith declares that ECS’s 2 records reveal Driskill signed up for a CreditWorks account on February 16, 2022. Smith Decl. ¶ 3 3. Driskill acknowledges that he accessed an Experian website and “followed the instructions to 4 create an account” on February 16, 2022. Driskill Decl. ¶¶ 3-6. Though Driskill states that he did 5 not recognize that the creation of an account meant that he entered into a contractual relationship 6 with Experian (or its affiliates), this does not create a genuine dispute of fact. Voll v. HCL Techs. 7 Ltd., No. 18-CV-04943-LHK, 2019 WL 144863, at *5 (N.D. Cal. Jan. 9, 2019) (compelling 8 dispute to arbitration because plaintiff’s lack of memory regarding his receipt of the arbitration 9 agreement did not directly contradict defendant’s evidence of assent). 10 There are at least two more reasons why Driskill’s factual challenge fails. First, Driskill’s 11 uncorroborated declaration regarding what he saw on the website falls short of creating a genuine 12 dispute of fact. See, e.g., Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1061 (9th Cir. 2002) 13 (refusing to find a genuine issue where the only evidence presented is uncorroborated and self- 14 serving testimony.); FTC v. Publishing Clearing House, 104 F.3d 1168, 1171 (9th Cir. 1997) (“A 15 conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is 16 insufficient to create a genuine issue of material fact.”). Second, Driskill’s claim that he did not 17 see any language that he was entering into a contract with Experian does not create a genuine 18 dispute because no reasonable jury would consider the declaration sufficient evidence to overcome 19 the copy of the webform he completed. See Smith Decl. Ex. 1; Anderson, 477 U.S. at 248. The 20 webpage, as discussed above, clearly provided the Terms of Use adjacent to the “Create Your 21 Account” button, included a hyperlink to the terms in a contrasting color, and informed the user 22 that clicking “Create Your Account” would indicate assent to the terms. Smith Decl. Ex. 1. 23 Driskill’s declaration that he did not recognize that he was entering into a contract at the time of 24 his account creation simply cannot create a genuine dispute of material fact on the issue of his 25 assent to the Terms of Use or the arbitration contained therein. 26 c. Experian’s Enforcement of Arbitration Agreement 27 Beyond Driskill’s protest that he never entered into a contract with ECS, a substantial part 1 enforce the arbitration agreement because Experian is merely an affiliate of ECS, not a party to the 2 Terms of Use. However, whether Experian can enforce the arbitration agreement in the 3 CreditWorks Terms of Use has already been resolved in this Circuit. In Meeks v. Experian Info. 4 Servs., Inc., No. 21-17023, 2022 WL 17958634 (9th Cir. Dec. 27, 2022), “Experian [sought] to 5 enforce an arbitration provision in a larger agreement that the plaintiffs entered into when they 6 signed up for credit-monitoring services provided primarily by Experian’s sister company, 7 Experian Consumer Services.” Id. at *1. The Ninth Circuit concluded that the text of the 8 arbitration provision in the Terms of Use required the parties “to arbitrate certain disputes and 9 defines ECS to include affiliates,” even though “the larger agreement does not define ECS to 10 include affiliates.” Id. The Meeks court held that Experian was a party to the arbitration 11 provision, which appears to be the same Terms of Use that is contested here, because Experian is 12 defined as an affiliate of ECS in the arbitration agreement. Id. at *2 (remanding the case to the 13 district court with instructions to grant Experian’s motion to compel arbitration). Indeed, this 14 follows earlier Ninth Circuit reasoning that parties defined as “affiliates” in an arbitration 15 agreement may enforce the agreement as a party. See Ridgeway v. Nabors Completion & Prod. 16 Servs. Co., 725 Fed. App’x. 472, 475 (9th Cir. 2018). The agreement that Experian seeks to 17 enforce here appears to be the same as the one at issue in Meeks. Driskill’s argument that the FAA 18 is inapplicable because Experian is not a party to the arbitration agreement fails to persuade, much 19 less overcome this authority. 20 Driskill finally contends that Experian cannot enforce the arbitration agreement, and that 21 the FAA does not apply, because his claims do not arise from the Terms of Use. See Opp. at 8-9 22 (ECF 41 at 14-15). In so doing, Driskill fails to grapple with Meeks at all and instead sticks his 23 head in the sand, pointing to AAA arbitration decisions and inapplicable concurrences. See, e.g., 24 Opp. at 9 (citing, e.g., Sept. 18, 2022 Order Regarding Arbitrability, Morgan v. Experian Info. 25 Sols., Inc., AAA Case No. 01-22-0001-0857); Opp. at 8 (citing Revitch v. DIRECTV, LLC, 977 26 F.3d 713, 721 (9th Cir. 2020) (O’Scannlain, J., concurring)). The three AAA arbitration decisions 27 proffered by Driskill are easily dismissed as unhelpful: they have no precedential value and they 1 is unhelpful here. That case assessed whether claims against DirecTV – an “affiliate” of the entity 2 (AT&T) with whom plaintiff contracted for wireless services – could be compelled to arbitration 3 given the fact that (1) DirecTV did not become an affiliate of AT&T until seven years after 4 Plaintiff had contracted with AT&T, and (2) the services that plaintiff received from DirecTV had 5 nothing whatsoever to do with plaintiff’s agreement with AT&T. Revitch, 977 F.3d at 721 6 (finding no agreement to arbitrate between the plaintiff and DirecTV). Experian’s affiliation with 7 ECS, in contrast to the affiliation between DirecTV and AT&T, existed prior to Driskill’s assent to 8 the arbitration agreement in the Terms of Use. Judge O’Scannlain’s concurrence does not alter the 9 inapplicability of Revitch here because the concurrence discussed the scope of that arbitration 10 agreement – the issue of scope is not relevant here because this arbitration agreement delegates 11 questions of scope to the arbitrator. See Revitch, 977 F.3d at 721; Smith Decl. Ex. 1 (ECF 37-2 at 12 15). 13 Further, Driskill relies heavily on Austin v. Equifax Info. Servs., LLC, No. 3:22CV707, 14 2023 WL 8646275 (E.D. Va. Dec. 14, 2023). In Austin, a FCRA plaintiff challenged the evidence 15 in support of a similar motion to compel arbitration to the one at issue here. Id. The court granted 16 the plaintiff’s motion for discovery on the issue of mutual assent to the arbitration agreement, the 17 same relief Driskill seeks in his now-pending motion, because the plaintiff expressly challenged 18 the corporate declarant’s personal knowledge regarding the online sign up process. Id. at *2. In 19 the subsequent analysis, the district court disregarded the corporate representative’s declaration 20 based on the declarant’s lack of personal knowledge regarding the CreditWorks sign-in process. 21 Id. at *2. The district court found that the plaintiff’s declaration that he did not agree to the 22 CreditWorks Terms of Use sufficiently rebutted the corporate declarant’s description of the 23 clickwrap to preclude a finding of mutual assent to arbitrate. Id. at *3-4 (finding lack of mutual 24 assent after having granted plaintiff’s request for discovery on the issue of mutual assent). 25 However, Driskill does not challenge the Smith Declaration, and he has presented no evidence that 26 Smith lacks personal knowledge of how the CreditWorks online account sign-up functioned. 27 Driskill argues in part that there exist disputed facts, including regarding “Experian’s complete 1 Smith’s Declaration.” Opp. at 15 (ECF 41 at 21). Because Driskill does not directly challenge the 2 admissibility of the corporate declaration, he has provided no basis to disregard it. Moreover, 3 Austin is irreconcilable with Meeks and every other case in this Circuit that has evaluated the 4 enrollment process into CreditWorks. See, e.g., Saucedo v. Experian Info. Sols., Inc., No. 1:22- 5 CV-01584-ADA-HBK, 2023 WL 4708015, at *8 (E.D. Cal. July 24, 2023) (de Alba, J.). 6 Because Driskill entered into the larger Terms of Use Agreement when he signed up for 7 credit monitoring services through CreditWorks, and because Experian is expressly included as a 8 party to the arbitration provision included in the Terms of Use, the Court is obliged to compel the 9 claims against Experian to arbitration. The Court accordingly GRANTS Experian’s motion. 10 B. Motion for Discovery 11 Driskill moves for arbitration discovery, stating in part that “[m]ultiple key issues remain 12 disputed as to the purported agreement to arbitrate, including: Experian’s complete lack of any 13 admissible evidence establishing Plaintiff’s agreement to the terms proffered in Mr. Smith’s 14 Declaration; the lack of mutual assent to arbitration and lack of any meeting of the minds on the 15 idea that Experian’s arbitration language encompasses the claims in this case; and if there even 16 was such a connected [sic] between the Parties, the defense of fraudulent inducement.” Mot. at 14 17 (ECF 42-1 at 21). Driskill also states that he intends to retain two experts. The first he says will 18 be an “expert in deception in digital products,” who will “opine as to the subterfuge inherent in the 19 CreditWorks signup process, the likelihood of consumer confusion during that process, and the 20 comprehensibility of the information provided to consumers to purportedly obtain their mutual 21 assent to a mandatory, pre-dispute arbitration clause.” Mot. at 15 (ECF 42-1 at 22). For the 22 second expert, Driskill intends to hire an expert to “perform a study of other consumers Experian 23 contends were bound by the same website text to determine what these other consumers 24 understood.” Mot. at 16 (ECF 42-1 at 23). 25 The FAA permits the Court to order limited discovery to resolve whether a contract exists 26 “only if ‘the making of the arbitration agreement or the failure, neglect, or refusal to perform the 27 same be in issue.’” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (quoting 9 1 helpful to the Court in analyzing his assent to the arbitration agreement. Meeks provides clear 2 || guidance regarding the enforceability of the Terms of Use by Experian to compel arbitration. 3 Driskill advances no alternative challenge to contract formation. This is insufficient to warrant 4 discovery. See Ghazizadeh v. Coursera, Inc., No. 23-CV-05646-EJD, 2024 WL 3455255, at *15 5 (N.D. Cal. June 20, 2024) (denying motion for discovery where the evidence sought would not 6 alter the court’s analysis of arbitration contract formation). The making of the arbitration 7 agreement is not at issue. Therefore, the Court DENIES the request for discovery. 8 || I. CONCLUSION 9 For the foregoing reasons, the Court GRANTS Experian’s motion to compel arbitration 10 || and DENIES Driskill’s motion for discovery. The Court STAYS Driskill’s claims against 11 Experian pending arbitration. See Smith v. Spizzirri, 601 U.S. 472, 478 (2024). 12 Driskill and Defendant Affirm, Inc., shall meet and confer to discuss whether the 5 13 arbitration stay extends to Driskill’s claims against Affirm such that the entire case should remain 14 stayed. Within 21 days from the date of this order, Driskill and Affirm SHALL file either a 3 15 stipulation to stay the action in full or a joint letter brief, not to exceed five (5) pages, laying out a 16 || the parties’ respective positions regarding the scope of Experian’s arbitration stay. IT IS SO ORDERED. 18 Dated: October 8, 2024 19 □□□ -

ARACELI MARTINEZ-OLGUIN United States District Judge 22 23 24 25 26 27 28