791 F.Supp.3d 1203
D. Or.2025Background
- Plaintiff Jacy Gamble filed a putative class action against Penney Opco LLC, alleging deceptive false discount advertising in violation of Oregon's Unlawful Trade Practices Act.
- Gamble claims Penney (JCPenney) created false higher reference prices to mislead customers about the nature of sales and discounts.
- Penney moved to compel arbitration, citing two agreements: (1) website Terms and Conditions and (2) a Rewards Program agreement.
- The plaintiff disputes ever agreeing to the website's Terms and argues the Rewards Program arbitration clause does not cover her claims.
- The key legal question is whether Gamble is bound to arbitrate her claims, which the court addresses in this motion.
- The court denies Penney's motion to compel arbitration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Agreement to Website Terms? | Gamble never affirmatively agreed or had notice of the Terms/Arb. | Website use itself was enough notice; links present on site. | Not bound; links not conspicuous; no affirmative assent |
| Who decides arbitrability under Rewards Program? | Arbitration clause did not clearly delegate arbitrability to AAA. | Reference to AAA rules is clear delegation of arbitrability decision to AAA. | Court decides; no clear, unmistakable delegation |
| Scope of Rewards Program arbitration agreement? | Claim is unrelated to Rewards Program participation or benefits. | Claims are “related to” membership since purchases yield reward points. | Not covered; claims do not relate to Rewards membership |
| Should action be stayed pending arbitration? | No valid agreement to arbitrate dispute exists. | Valid arbitration agreements require a stay under FAA. | Denied; no basis for stay |
Key Cases Cited
- Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022) (discusses enforceability of browsewrap internet agreements)
- Kilgore v. KeyBank, Nat'l Ass'n, 718 F.3d 1052 (9th Cir. 2013) (outlines two-step inquiry for compelling arbitration under FAA)
- Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985) (courts must enforce arbitration agreements as written)
- Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (strong federal policy favoring arbitration)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (browsewrap agreements require affirmative user assent)