District Court (Fla.) Orders TCPA Claim to Arbitration; Finds Clause’s Requirement to Go to NAF Not a Material Term and that the FAA Allows Substitution of Different Arbitration Forum

In Obremski v. Springleaf Financial Services, Inc., 2012 WL 3264521 (M.D.Fla. 2012), Judge Hernandez-Covington ordered a consumer’s TCPA claim to arbitration, finding that the TCPA claim along with the other allegations fell within the scope of the arbitration clause.

Here, the Court finds that Obremski’s claims “arise from” or “relate to” the Agreement, as they are all based upon allegations pertaining to amounts owed under the Agreement, Springleaf’s reporting of the amounts owed under the Agreement, or Springleaf’s collections efforts for the amount owed under the Agreement. Accordingly, the Court finds that the prescribed arbitration process is appropriate. ¶  After a careful review of the record and the arguments presented, the Court determines that the arbitration provision of the Retail Charge Agreement encompasses all of the claims of this case. Finding no legal constraints to foreclose arbitration, the Court concludes that arbitration is now appropriate, and this case will be stayed and administratively closed pending the completion of the alternative dispute resolution process.

Judge Hernandez-Covington also held that although the arbitration clause required the claim(s) to be arbitrated before the National Arbitration Forum (NAF) that no longer exists, the arbitration forum was not a material part of the bargained-for exchange set forth in the arbitration clause.

The Agreement names the National Arbitration Forum (NAF) to hear this dispute. However, the NAF ceased administering consumer arbitration disputes on July 24, 2009. Springleaf requests this Court to appoint either the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Services, Inc. (JAMS) as the arbitral forum to administer arbitration of this dispute. ¶  Section 5 of the FAA specifically provides that in circumstances such as these the court shall appoint an alternate arbitrator. Furthermore, the Eleventh Circuit has held that absent a showing that the choice of arbitrator was integral to the agreement to arbitrate, a court should appoint a substitute arbitrator pursuant to Section 5 of the FAA. Brown v. ITT Consumer Fin. Corp., 211 F .3d 1217, 1222 (11th Cir.2000). ¶  The Court finds nothing in the arbitration provision of the Agreement to suggest that the choice of NAF as the arbitration forum was an integral part of the agreement to arbitrate. Accordingly, the Court designates either AAA or JAMS as a substitute arbitration forum.