District Court (Fla.) Orders TCPA Text-message Class Action to Arbitration

In Shea v. BBVA Compass Bancshares, Inc., 2013 WL 869526 (S.D.Fla. 2013), Judge Moore ordered a TCPA text-message class action to arbitration, finding that the TCPA claim was within the scope of the arbitration clause and the arbitration clause survived the termination of the contractual relationship between the parties.  

Here, this Court finds clear and unmistakable evidence of the Parties’ intent to delegate the issue of arbitrability of the claims to the arbitration panel. See 24 Go Wireless, Inc. v. AT & T Mobility II, LLC, No. 11–CV–20930, 2011 WL 2607099, at *2 (S.D.Fla.2011) (stating that “the parties clearly and unmistakably agreed to submit that issue to arbitration as well by expressly incorporating the rules of the American Arbitration Association (“AAA”) into the arbitration provision of their Agreement”); see also Senior Servs. of Palm Beach LLC v. ABCSP Inc., No. 12–CV–80226, at *2–3 (S.D. Fla. June 7, 2012). The Parties explicitly incorporated the rules of the AAA and JAMS into the Arbitration Provision. See e.g., Deposit Agreement, at 16. Both of these rules delegate the issue of the arbitrability of a dispute to the arbitrator. For example, the AAA Rules provide that “[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” AAA, Commercial Arbitration Rules, Rule 7(a).FN9 Accordingly, any argument that the Plaintiff’s TCPA claim is not arbitrable and outside of the scope of the Arbitration Provision must be presented to the arbitrator. u No. 12–CV–21932–KMM (S.D.Fla. Sept. 20, 2012) (holding that the arbitration panel should decide arbitrability because the parties agreed to apply the rules of the International Chamber of Commerce); Mercury Telco Grp., Inc. v. Empresa De Telecommunicaciones De Bogota, 670 F.Supp.2d 1350 (S.D.Fla.2009) (holding that the arbitration panel should decide arbitrability because the parties agreed to apply the rules of the Arbitration and Conciliation Center of the Bogota Chamber of Commerce). Accordingly, this Court finds that Defendant’s Motion to Compel should be granted and an arbitrator should decide these gateway determinations according to the Parties’ Arbitration Provision. ¶  Even if this matter were properly before this Court, the undersigned would still find that Defendant’s Motion to Compel should be granted. FN10 First, despite Plaintiff’s claim that he terminated the Agreements, the Arbitration Provision is still valid and enforceable against Plaintiffs TCPA claim. See Auchter v. Zagloul, 949 So.2d 1189, 1194 (Fla.Dist.Ct.App.2007) ( “Arbitration provisions are to be construed to require arbitration of disputes arising after the cancellation of the underlying contract unless such disputes are specifically excluded from arbitration.”). Indeed, the Arbitration Provision expressly provides that it survives the termination of the Agreements and the closing of an account with Defendant. See e.g., Deposit Agreement, at 18. (“This arbitration provision shall survive termination of this Agreement and the closing of your Account.”). Thus, the Parties have a valid agreement in writing to arbitrate any disputes arising from the Agreements and Plaintiff’s account. See Lambert, 544 F.3d at 1195 (“Accordingly, the FAA requires a court to either stay or dismiss a lawsuit and to compel arbitration upon a showing that (a) the plaintiff entered into a written arbitration agreement that is enforceable ‘under ordi-nary state-law’ contract principles and (b) the claims before the court fall within the scope of that agree-ment.” (quoting 9 U.S.C. §§ 24)) .FN11 Second, Plaintiff’s dispute clearly arises from the Parties’ contractual relationship as embodied by the Agreements and relates to Plaintiff’s account with Defendant. The Eleventh Circuit has typically “focused on foreseeability as proper standard for resolving the scope of an arbitration clause that covers disputes ‘arising out of or pursuant to’ the contract between the parties.” . . .  The Arbitration Provision committed both parties to arbitrate a “dispute, claim or controversy of any kind aris[ing] out of or relat[ing] to this Agreement or to your account or any transaction involving your account ….” Deposit Agreement, at 16. Thus, Plaintiff’s claim under the TCPA that he was illegally sent a text message to his cellular phone clearly involves his account with the Defendant and the Parties’ relationship as defined by the Agreements. This is especially true since Defendant alleges that it had prior consent to send a text message to Plaintiff concerning the update to its banking application since Plaintiff previously signed up for online banking services on his cellular phone through use of its banking application. Def. Reply, at 45. Accordingly, Plaintiff’s TCPA claim is subject to the Arbitration Provision and is a clearly foreseeable result of the performance of the Parties’ actions pursuant to the Agreements and related to Plaintiff’s account with Defendant. See Integrated Security Servs., 609 F.Supp.2d at 1325.FN12 Thus, even if this Court were to address the merits of Defendant’s Motion to Compel, this Court finds that it should be granted because Defendant has demonstrated that there is a valid written agreement to arbitrate and that an arbitrable issue exists.