United States District Court, N.D. Georgia, Atlanta Division
MICHAEL HEARN individually and on behalf of all other similarly situated consumers, Plaintiff,
COMCAST CABLE COMMUNICATIONS, LLC, Defendant.
OPINION AND ORDER
W. Thrash Jr. United States District Judge.
a class action under the Fair Credit Reporting Act. It is
before the Court on Defendant Comcast Cable's Motion to
Compel Individual Arbitration and Stay Litigation [Doc. 6].
For the reasons set forth below, Defendant Comcast
Cable's Motion to Compel Individual Arbitration and Stay
Litigation [Doc. 6] is DENIED.
The Plaintiff's Claim
Plaintiff Michael Hearn alleges that he called Defendant
Comcast Cable Communications to inquire about its services on
or about March 5, 2019. Class Action Compl. ¶ 8. During
the call, a representative for the Defendant made a
“hard pull” of the Plaintiff's consumer
report, damaging his credit score. Id. ¶¶
12-14. The Plaintiff alleges that he did not consent to a
credit check, was not a customer of the Defendant at the
time, and did not request any services before or after the
Defendant pulled his consumer report. Id.
¶¶ 9-10. The Plaintiff alleges that the Defendant
obtained the Plaintiff's consumer report for an
“impermissible purpose” in violation of various
provisions of the Fair Credit Reporting Act, 15 U.S.C.
§§ 1681 et seq. Id. ¶¶ 37-46.
The Plaintiff sues on behalf of two putative classes of
Georgia residents whose consumer reports were either (1)
impermissibly accessed or (2) impermissibly used by the
Defendant. Id. ¶ 22.
The Arbitration Provision
Defendant argues that the Plaintiff's FCRA claim is
covered by an arbitration agreement previously entered into
by the parties. The Plaintiff contracted with the Defendant
for services at his current address from December of 2016
through August of 2017. The Plaintiff signed a work order on
December 20, 2016, acknowledging receipt of a “Comcast
Welcome Kit” that contained, inter alia, the 2016
Service Agreement. See 2016 Work Order, at 3. The
first page of the 2016 Service Agreement notifies the
customer that “THIS AGREEMENT CONTAINS A
BINDING ARBITRATION PROVISION IN SECTION 13 THAT AFFECTS YOUR
RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL
SERVICE(S).” See 2016 Service
Agreement, at 1 (emphasis in original). The arbitration
provision in Section 13 of the Agreement states that it is
governed by the Federal Arbitration Act and covers
“[a]ny Dispute involving [the customer] and
Comcast.” Id. § 13(a). The provision
defines the term “Dispute” as:
any claim or controversy related to Comcast, including but
not limited to any and all: (1) claims for relief and
theories of liability, whether based in contract, tort,
fraud, negligence, statute, regulation, ordinance, or
otherwise; (2) claims that arose before this or any prior
Agreement; (3) claims that arise after the expiration or
termination of this Agreement, and (4) claims that are
currently the subject of purported class action litigation in
which you are not a member of a certified class.
Id. § 13(b). The provision states that the
customer has the right to opt out of arbitration by notifying
the Defendant's legal department in writing within thirty
days of receipt of the Agreement. Id. §
13(d). The provision further states that the
customer waives his or her right to arbitrate or litigate
claims against the Defendant in a collective action.
Id. § 13(h). Finally, the provision contains a
survival clause stating that the parties' agreement to
arbitrate survives termination of the Agreement. Id.
Defendant contends that the Federal Arbitration Act, 9 U.S.C.
§ 1 et seq., governs the arbitration provision
contained within the 2016 Service Agreement and that the
Plaintiff's FCRA claim falls within its broad scope. The
Defendant argues that the Court should therefore stay these
proceedings pending arbitration of the Plaintiff's FCRA
claim. See 9 U.S.C. §§ 3-4. The Federal
Arbitration Act covers any arbitration provision that is (1)
in writing and (2) is part of a contract “evidencing a
transaction involving [interstate] commerce.” 9 U.S.C.
§ 2; see also Klay v. Al Defendants, 389 F.3d
1191, 1200 n.9 (11th Cir. 2004). The Plaintiff does not
dispute that the arbitration provision is in writing and
that, by contracting for telecommunications services, the
parties engaged in a transaction involving interstate
commerce. Therefore, the Court will consider and apply
precedent construing the Federal Arbitration Act in
adjudicating the Defendant's motion.
Federal Arbitration Act “embodies a liberal federal
policy favoring arbitration agreements.” Caley v.
Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th
Cir. 2005) (citation and punctuation omitted). Section 2 of
the Federal Arbitration Act provides in relevant part that
“[a] written provision in any maritime transaction or a
contract evidencing a transaction involving commerce to
settle by arbitration a controversy thereafter arising out of
such contract or transaction . . . 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. When considering a motion
to compel arbitration pursuant to the Federal Arbitration
Act, the Court must first “determine whether the
parties agreed to arbitrate that dispute.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 626 (1985). If they have, the Court
must then determine whether the arbitration clause is valid.
It may be unenforceable on grounds that would permit the
revocation of any contract, such as fraud or
unconscionability. See id., at 627 (“[C]ourts
should remain attuned to well-supported claims that the
agreement to arbitrate resulted from the sort of fraud or
overwhelming economic power that would provide grounds
‘for the revocation of any contract.'”).
There may also be legal constraints precluding arbitration,
such as a clear congressional intention that a certain claim
be heard in a judicial forum. See id., at 628
(“Having made the bargain to arbitrate, the party
should be held to it unless Congress itself has evinced an
intention to preclude a waiver of judicial remedies for the
statutory rights at issue.”).
Court must apply state laws of contract to resolve questions
regarding the “validity, revocability, and
enforceability” of arbitration agreements.
Caley, 428 F.3d at 1368 (citing Perry v.
Thomas, 482 U.S. 483, 492 n.9 (1987)). The Court does
so, however, in light of the strong federal policy favoring
arbitration. Id. (citing Cooper v. MRM Inv.
Co., 367 F.3d 493, 498 (6th Cir. 2004)). “[A]s a
matter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration,
whether the problem at hand is the construction of the
contract language itself or an allegation of waiver, delay,
or a like defense to arbitrability.” Moses H. Cone
Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1,
24-25 (1983). If the moving party establishes the necessary
elements, “the FAA requires a court to either stay or
dismiss a lawsuit and to compel arbitration.”
Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th
Defendant argues that the arbitration provision is valid and
compels arbitration of the Plaintiff's FCRA claim. The
Plaintiff makes three arguments in response. First, the
Plaintiff argues that he ceased to be bound by the
arbitration provision of the 2016 Service Agreement when he
terminated the Defendant's services in August of 2017.
Second, the Plaintiff argues that his FCRA claim is beyond
the scope of the arbitration provision because they do not
relate to the 2016 Service Agreement. Third, the Plaintiff
argues that if the arbitration provision requires arbitration
of claims unrelated to the 2016 Service Agreement, then the
provision is unenforceable because it is unconscionable.
Whether the Arbitration Provision Continues ...