753 F.Supp.3d 839
N.D. Cal.2024Background
- Plaintiff Travis Driskill sued Experian Information Solutions, Inc., alleging wrongful credit reporting under the Fair Credit Reporting Act (FCRA), based on two "Affirm" accounts Experian failed to remove despite his claims of identity theft.
- Upon obtaining his Experian credit file online, Driskill enrolled in Experian's CreditWorks service, clicking a “Create Your Account” button directly above a bold, conspicuous notice (with hyperlinked Terms of Use) indicating acceptance of terms, including an arbitration agreement.
- The Terms of Use defines “ECS” (Experian Consumer Services) to include affiliates, explicitly covering Experian Information Solutions, Inc., and requires arbitration of related disputes.
- Experian moved to compel arbitration based on the arbitration provision in the CreditWorks Terms of Use; Driskill opposed, claiming lack of assent and seeking discovery regarding the enrollment process and consumer understanding.
- The court assessed the enforceability of the agreement, application of arbitration to Experian, and whether further discovery was warranted; it ultimately stayed claims against Experian pending arbitration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Driskill assent to the arbitration agreement? | Did not see or assent to arbitration clause in Terms of Use | Website provided conspicuous notice; clicking constituted assent | Driskill assented; agreement exists |
| Is there a material fact dispute about assent? | Declaration creates factual dispute about seeing/accepting terms | Plaintiff's evidence is insufficient; webform is clear | No genuine issue; plaintiff’s self-serving affidavit insufficient |
| Can Experian, as an affiliate, enforce arbitration? | Only ECS is party to Terms; Experian is not defined as party | Terms expressly define ECS to include affiliates, covering Experian | Experian can enforce arbitration as an included affiliate party |
| Is plaintiff entitled to arbitration-related discovery? | Needs discovery on mutual assent and consumer understanding | Discovery unnecessary; evidence already clear per controlling cases | No further discovery warranted; request denied |
Key Cases Cited
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (FAA strongly favors enforcement of arbitration agreements)
- Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (federal policy favors arbitration agreements)
- Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985) (district courts must enforce arbitration where agreement exists)
- Howsam v. Dean Witter Reynolds, 537 U.S. 79 (2002) (cannot require arbitration for disputes a party did not agree to arbitrate)
- Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (liberal federal policy favoring arbitration agreements)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (assent, including online, is required for contracts)
- Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022) (online clickwrap and sign-in wrap agreements can create valid arbitration agreements)