11th Cir. Says Arb. Clause in Auto Finance RISC Did Not Cover TCPA Class Action Deriving from Text Messages Sent After the Account Was Paid in Full

In Gamble v. New England Auto Finance, Inc., 2018 WL 2446607 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit found that text messages sent by automobile finance company after its customer had paid her RISC in full were not subject to the RISC’s arbitration clause and class-action waiver.

NEAF also argues that the Arbitration Provision is broad enough to pull Ms. Gamble’s TCPA claims into its orbit. NEAF points to specific language in the Arbitration Provision defining ‘‘claim” as “any claim, dispute or controversy … whether preexisting, present or future, that in any way arises from or relates to this Agreement,” while encompassing “disputes based upon contract, tort, consumer rights … [and] statute.” But this argument lacks force.  The plain language of the Arbitration Provision requires that the dispute “arise[ ] from or relate[ ] to this Agreement or the Motor Vehicle securing this Agreement.” Although this language makes the arbitration provision broad, it does not make it limitless. See Princess Cruise Lines, 657 F.3d at 1218 (stating “the term ‘arising out of’ is broad, but not all encompassing” while recognizing that the dispute in question must be “an immediate, foreseeable result of the performance of contractual duties”). Here, Ms. Gamble signed an agreement whereby NEAF promised to provide her with the necessary funds to purchase an automobile on a particular date, in exchange for her promise to pay NEAF back—with interest—by a later date. The Arbitration Provision only applies to disputes arising out of, or related to, this agreement.  Ms. Gamble’s TCPA claim, on the other hand, arises not from the Loan Agreement or any breach of it, but from post-agreement conduct that allegedly violates a separate, distinct federal law. And NEAF’s sending of the text messages do not relate to or arise from its lending money to Ms. Gamble, Ms. Gamble’s repayment of that loan, or the vehicle which secured the loan. Further, the Text Consent Provision is a separate stand-alone provision which Ms. Gamble never signed, and thus no agreement regarding text messages exists between the parties. See Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109, 1116 (11th Cir. 2001) (“Disputes that are not related—with at least some directness—to performance of duties specified by the contract do not count as disputes ‘arising out of’ the contract, and are not covered by the standard arbitration clause.”). NEAF’s argument that the Arbitration Provision is broad enough to encompass Ms. Gamble’s TCPA claim thus fails.  Put differently, NEAF could have violated the TCPA, and Ms. Gamble could have brought a lawsuit against NEAF for those violations, without there ever having been a contract (in this case the Loan Agreement) between the two parties. In terms of TCPA claims, the existence of a contract is unnecessary and irrelevant, unless the specific contract contemplates future TCPA claims. But this Loan Agreement does no such thing. NEAF would have us believe that this Loan Agreement, which would otherwise be irrelevant to Ms. Gamble’s TCPA claims, suddenly becomes applicable solely because NEAF requested from Ms. Gamble the ability to send her text messages, even though Ms. Gamble declined that request and did not provide her consent to those text messages. That is not so.
Had there been no Loan Agreement between NEAF and Ms. Gamble, NEAF would not argue that Ms. Gamble must submit her TCPA claim to arbitration. Had NEAF requested Ms. Gamble’s consent to receive text messages at a separate time and in a manner apart from the Loan Agreement, but been refused, NEAF would not argue that Ms. Gamble must submit her TCPA claim to arbitration. The only difference here is that NEAF included its request for consent in the same physical document as the contractual agreement. But that does not magically make Ms. Gamble’s TCPA claim subject to the Arbitration Provision in the Loan Agreement. Ms. Gamble signed the Loan Agreement. She refused to sign the Text Consent Provision. And NEAF did not violate the Loan Agreement.  NEAF cannot force Ms. Gamble to arbitrate her TCPA claim just because the contract she entered into with NEAF, a contract that had nothing to do with the TCPA or with text messages, contained a separate provision, with a separate signature line, requesting Ms. Gamble’s consent. NEAF cannot avoid the strictures of the TCPA, and force arbitration of its alleged TCPA violations, by placing the request for consent to receive text messages in the same document as, but after and apart from, a separate and independent contract, and then, after it failed to get the individual’s consent, claim that the consent request was actually part of that contract. We will not accept NEAF’s invitation to bootstring independent TCPA claims to a completely distinct contract.  The bottom line is that Ms. Gamble’s TCPA claims did not “in any way arise[ ] from or relate[ ] to” the Loan Agreement, and the parties did not agree to arbitrate those TCPA claims.