TRAVIS DRISKILL v. EXPERIAN INFORMATION SOLUTIONS, INC., еt al.
Case No. 24-cv-00583-AMO
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
October 8, 2024
Re: Dkt. Nos. 37, 42
This is a Fair Credit Reporting Act (“FRCA“) case. Before the Court are Defendant Experian Information Solutions, Inc.‘s (“Experian“) motion to compel arbitration and Plaintiff Travis Driskill‘s motion for discovery regarding Experian‘s motion to compel arbitration. The matters are fully briefed and suitable for decision without oral argument. Accordingly, the hearing set for August 29, 2024, was vacated. See ECF 60; Civ. L.R. 7-1(b). Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby GRANTS Experian‘s motion to compel arbitration and DENIES Driskill‘s motion for discovery.
I. BACKGROUND
In February 2022, Driskill obtained his credit file disclosure from Defendant Experian, which “contained eleven Affirm accounts that Experian was wrongfully reporting as belonging” as a purported result of identity theft. Compl. ¶¶ 33-35, 47.1 Driskill disputed the reporting to
Driskill reports that he first becаme aware of these issues on February 16, 2022, when he received a notification email from Experian and he then clicked through a series of links to access his credit information. Driskill Decl. (ECF 41-1) ¶¶ 3-7. When Driskill obtained his credit file disclosure, he enrolled in CreditWorks, a service provided by Experian affiliate ECS, and he agreed to the CreditWorks Terms of Use. Smith Decl. (ECF 37-2) ¶ 3. The online form he completed required Driskill to enter his personal information – i.e., his name, address, phone number, and e-mail address. Id. After he entered his personal information, Driskill had to click the “Create Your Account” button on the webform in order to enroll. Id. Immediately below the boxes to enter his e-mail address and password, was the following disclosure: “By clicking ‘Create Your Account‘: I accept and agree to your Terms of Use Agreement, as well as acknowledge receipt of your Privacy Policy.” Id.
The phrase “Terms of Use Agreement” in the disclosure was a hyperlink off-set in blue text and, if clickеd, would have presented the consumer with the full text of the agreement. Smith Decl. ¶ 4. Thus, before clicking the “Create Your Account” button, the consumer could view the entire text of the Terms of Use by clicking on the blue-highlighted hyperlink “Terms of Use Agreement.” Id. When a consumer clicked on the “Terms of Use Agreement” hyperlink, an additional window would open within the consumer‘s web browser containing the entire text of the Terms of Use Agreement. Id. Immediately below the disclosure was a large purple button that reads: “Create Your Account.” Id. The webform, the disclosure, and the “Create Your Account” button appeared on a single webpage. Id. Experian presents the following representation of the webpage as it would have appeared at the time Driskill saw it:
Smith Decl. Ex 1 (ECF 37-2 at 7).
After entering his information, Driskill clicked the “Create Your Account” button, thereby accepting and agreeing to the Terms of Use Agreement. Smith Decl. ¶ 5. Driskill would not have been able to successfully enroll in CreditWorks unless he clicked that button. Id.
Every version of the Terms of Use that was in effect during Driskill‘s enrollment in CreditWorks contained an arbitration agreement that requires him to litigate, among other things, all claims against “ECS” that “relate to” or “arise out of” his ECS membership. Smith Decl. ¶ 6. The Arbitration Agreement expressly defines “ECS” to include its “affiliates,” including “Experian Information Solutions, Inc.” Id. ¶ 6, Ex. 3.
On February 16, 2022, Driskill received an email credit alert from Experian and clicked a link to Experian‘s website, where he then input his personal information and set up an account.
II. DISCUSSION
Experian moves to compel arbitration. ECF 37 (“Mot.“). Driskill opposes on the basis that there exists a factual dispute regarding his assent to the CreditWorks agreement and the arbitration provision contained therein. ECF 41 (“Opp.“). Driskill additionally moves to obtain discovery regarding his and оther consumers’ consent to the CreditWorks agreement. ECF 42. The Court addresses the motion to compel arbitration first because its analysis clarifies that no further discovery is required.
A. Motion to Compel Arbitration
1. Legal Standard
The Federal Arbitration Act (“FAA“) provides that written arbitration agreements in contracts “evidencing a transaction involving commerce . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quoting
A court‘s role under the FAA is to determine “(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Kilgore v. KeyBank Nat‘l Ass‘n, 718 F.3d 1052, 1058 (9th Cir. 2013) (internal citation omitted). If the response is affirmative on both counts, then the [FAA] requires the court to enforce the arbitration agreement in accordance with its terms.” Chiron Corp. v. Ortho Diagnostic Systems, Inc., 207 F.3d 1126, 1130 (9th Cir. 2000) (internal citations omitted). When evaluating whether a party is bound by an arbitration agreement, federal courts “‘apply ordinary state-law principles that govern the formation of contracts’ to decide whether an agreement to arbitrate exists.” Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1283 (9th Cir. 2017) (quoting First Options of Chi. Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
2. Analysis
Because it is foundational, the Court begins by analyzing Driskill‘s challenge to the existence of a contract. First it considers Driskill‘s legal challenge to the contract and then takes up whether his factual challenge to contract formation precludes finding mutual assent. Finally, the Court considers Driskill‘s assertion that Experian cannot enforce the arbitration agreement because it is not a signatory.
a. Existence of Agreement to Arbitrate
Driskill argues that he did not agree to the arbitration provision contained in the CreditWorks Terms of Use when he followed Experian links and created an online account and, therefore, the required element of mutual assent is missing.
“[M]utual manifestation of assent, whether by written or spoken word or by conduct, is the touchstone of contract.” Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014) (citing Specht v. Netscape Commc‘ns Corp., 306 F.3d 17, 29 (2d Cir. 2002)). Parties may manifest assent through their conduct, “[h]owever, [t]he conduct of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 855 (9th Cir. 2022) (citation omitted). The “principle of knowing consent” required to establish contract formation “applies with particular force to provisions for arbitration” (Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 566 (9th Cir. 2014)), and with equal force to contracts formed online (Berman, 30 F.4th at 855-56).
Here, Driskill received the following disclоsure in bolded text immediately above the “Create Your Account” button when creating his account: “By clicking ‘Create Your Account‘: I accept and agree to your Terms of Use Agreement . . .” Smith Decl., Ex. 1 (ECF 37-2 at 7). The phrase “Terms of Use Agreement” in the disclosure was a blue hyperlink that, if clicked, would have presented Driskill with the full text of the Terms of Use Agreement, including the arbitration agreement. Smith Decl. ¶¶ 3-4, Ex. 1. Further, the “Terms of Use Agreement” hyperlink is “conspicuously distinguished from the surrounding text in bright blue font, making its presence readily apparent.” Oberstein v. Live Nation Ent., Inc., 60 F.4th 505, 516 (9th Cir. 2023). The notice is conspicuously displayed directly above the “Create Your Account” button and is in regular sized, bold font. Smith Decl., Ex. 1. The language “By clicking ‘Create Your Account‘: I
In this way, the Terms of Use Agreement is “somewhat like a browsewrap agreement in that the terms are only visible viа a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else – click [‘Create Your Account‘] – to assent to the hyperlinked terms.” DeVries v. Experian Info. Sols., Inc., No. 16-cv-02953-WHO, 2017 WL 733096, at *5 (N.D. Cal. Feb. 24, 2017) (citation omitted). The Terms of Use Agreement is thus most like a “modified clickwrap agreement” or “sign-in wrap” because the CreditWorks sign up screen informs users that if they click a button (the “Sign Up” button), they agree to the Terms of Use.
The CreditWorks sign up screen effectively notified Driskill of the existence of the Terms of Use and advised that creation of an account constituted acceptance of those Terms. CreditWorks conspicuously provided the Terms of Use adjacent to the “Create Your Account” button, included a hyperlink to the terms in a contrasting color, and informed the user that “Create Your Account” would indicate assent to the terms. Based on these features, the Court concludes that the website design provides constructive notice of the Terms of Use, including the arbitration provision. See DeVries, 2017 WL 733096, at *6 (finding that EIS‘s website design provided constructive notice where “[t]he text containing the Terms and Conditions hyperlink was located directly above that button and indicated that clicking ‘Submit Secure Purchase’ constituted acceptance of those terms“).
Having found that the CreditWorks sign up screen gave conspicuous notice of the Terms of Use, the analysis turns to whether Driskill unambiguously manifested assent to the hyperlinked Terms of Use. Oberstein, 60 F.4th at 517. “A user‘s click of a button can be construed as an unambiguous manifestation of assent only if the user is explicitly advised that the act of clicking will constitute assent to the terms and conditions of an agreement.” Berman, 30 F.4th at 857. “[T]he notice must explicitly notify a user of the legal significance of the action she must take to enter into a contractual agreement.” Id. at 858. Here, the CreditWorks sign up screen makes the assent-manifesting actions – creating an account and acceptance of the Terms of Use – clear, and
Driskill does not otherwise contest the formation of an agreement through acceptance of the Terms of Use nor the more specific acceptance of the agreement to arbitrate contained therein. In light of Driskill‘s limited legal attack on the existence of an agreement to arbitrate and having concluded that Driskill assented to the Terms of Use, the Court concludes that an agreement to arbitrate exists.
b. Driskill‘s Factual Challenge
Driskill focuses much of his opposition on what he views as a material dispute of fact regarding formation of the agreement to arbitrate.
In resolving a motion to compel arbitration, “[t]he summary judgment standard [of
Here, Driskill factually disputes the formation of the agreement to arbitrate. He contends, in essence, that he did not see the Terms of Use hyperlink and he did not know he was entering into an agreement with ECS at the time that he clicked through to create an account and access his cоnsumer credit information from Experian. See Driskill Decl. ¶¶ 5-9. He reasons that his failing to see the arbitration clause creates a factual dispute regarding his assent. However, Driskill‘s declaration falls short of creating a genuine dispute of material fact. Indeed, Driskill‘s declaration
There are at least two more reasons why Driskill‘s factual challenge fails. First, Driskill‘s uncorroborated declaration regarding what he saw on the website falls short of creating a genuine dispute of fact. See, e.g., Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1061 (9th Cir. 2002) (refusing to find a genuine issue where the only evidence presented is uncorroborated and self serving testimony.); FTC v. Publishing Clearing House, 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.“). Second, Driskill‘s claim that he did not see any language that he was entering into a contract with Experian does not create a genuine dispute because no reasonable jury would consider the declaration sufficient evidence to overcome the copy of the webform he completed. See Smith Decl. Ex. 1; Anderson, 477 U.S. at 248. The webpage, as discussed above, clearly provided the Terms of Use adjacent to the “Create Your Account” button, included a hyperlink to the terms in a contrasting color, and informed the user that clicking “Create Your Account” would indicate assent to the terms. Smith Decl. Ex. 1. Driskill‘s declaration that he did not recognize that he was entering into a contract at the time of his account creation simply cannot create a genuine dispute of material fact on the issue of his assent to the Terms of Use or the arbitration contained therein.
c. Experian‘s Enforcement of Arbitration Agreement
Beyond Driskill‘s protest that he never еntered into a contract with ECS, a substantial part of Driskill‘s opposition to the motion to compel arbitration centers on whether Experian can
Driskill finally contends that Experian cannot enforce the arbitration agreement, and that the FAA does not apply, because his claims do not arise from the Terms of Use. See Opp. at 8-9 (ECF 41 at 14-15). In so doing, Driskill fails to grapple with Meeks аt all and instead sticks his head in the sand, pointing to AAA arbitration decisions and inapplicable concurrences. See, e.g., Opp. at 9 (citing, e.g., Sept. 18, 2022 Order Regarding Arbitrability, Morgan v. Experian Info. Sols., Inc., AAA Case No. 01-22-0001-0857); Opp. at 8 (citing Revitch v. DIRECTV, LLC, 977 F.3d 713, 721 (9th Cir. 2020) (O‘Scannlain, J., concurring)). The three AAA arbitration decisions proffered by Driskill are easily dismissed as unhelpful: they have no precedential value and they considered different versions of the arbitration agreement. See Ex. 2 (ECF 41-2). Further, Revitch
Further, Driskill relies heavily on Austin v. Equifax Info. Servs., LLC, No. 3:22CV707, 2023 WL 8646275 (E.D. Va. Dec. 14, 2023). In Austin, a FCRA plaintiff challenged the evidence in support of a similar motion to compel arbitration to the one at issue here. Id. The court granted the рlaintiff‘s motion for discovery on the issue of mutual assent to the arbitration agreement, the same relief Driskill seeks in his now-pending motion, because the plaintiff expressly challenged the corporate declarant‘s personal knowledge regarding the online sign up process. Id. at *2. In the subsequent analysis, the district court disregarded the corporate representative‘s declaration based on the declarant‘s lack of personal knowledge regarding the CrеditWorks sign-in process. Id. at *2. The district court found that the plaintiff‘s declaration that he did not agree to the CreditWorks Terms of Use sufficiently rebutted the corporate declarant‘s description of the clickwrap to preclude a finding of mutual assent to arbitrate. Id. at *3-4 (finding lack of mutual assent after having granted plaintiff‘s request for discovery on the issue of mutual assent). However, Driskill does not challenge the Smith Declaration, and he has presented no evidence that Smith lacks personal knowledge of how the CreditWorks online account sign-up functioned. Driskill argues in part that there exist disputed facts, including regarding “Experian‘s complete lack of any admissible evidence establishing Plaintiff‘s agreement to the terms proffered in Mr.
Because Driskill entered into the larger Terms of Use Agreement when he signed up for credit monitoring services through CreditWorks, and because Experian is expressly included as a party to the arbitration provision included in the Terms of Use, the Court is obliged to compel the claims against Experian to arbitration. The Court accordingly GRANTS Experian‘s motion.
B. Motion for Discovery
Driskill moves for arbitration discovery, stating in part that “[m]ultiple key issues remain disputed as to the purported agreement to arbitrate, including: Experian‘s complete lack of any admissible evidence establishing Plaintiff‘s agreement to the terms proffered in Mr. Smith‘s Declaration; the lack of mutual assent to arbitration and lack of any meeting of the minds on the idea that Experian‘s arbitration language encompasses the claims in this case; and if there even was such a connected [sic] between the Parties, the defense of fraudulent inducement.” Mоt. at 14 (ECF 42-1 at 21). Driskill also states that he intends to retain two experts. The first he says will be an “expert in deception in digital products,” who will “opine as to the subterfuge inherent in the CreditWorks signup process, the likelihood of consumer confusion during that process, and the comprehensibility of the information provided to consumers to purportedly obtain their mutual assent to a mandatory, pre-dispute arbitration clause.” Mot. at 15 (ECF 42-1 at 22). For the second expert, Driskill intends to hire an exрert to “perform a study of other consumers Experian contends were bound by the same website text to determine what these other consumers understood.” Mot. at 16 (ECF 42-1 at 23).
The FAA permits the Court to order limited discovery to resolve whether a contract exists “only if ‘the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue.‘” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (quoting
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Experian‘s motion to compel arbitration and DENIES Driskill‘s motion for discovery. The Court STAYS Driskill‘s claims against Experian pending arbitration. See Smith v. Spizzirri, 601 U.S. 472, 478 (2024).
Driskill аnd Defendant Affirm, Inc., shall meet and confer to discuss whether the arbitration stay extends to Driskill‘s claims against Affirm such that the entire case should remain stayed. Within 21 days from the date of this order, Driskill and Affirm SHALL file either a stipulation to stay the action in full or a joint letter brief, not to exceed five (5) pages, laying out the parties’ respective positions regarding the scope of Experian‘s arbitration stay.
IT IS SO ORDERED.
Dated: October 8, 2024
ARACELI MARTÍNEZ-OLGUÍN
United States District Judge