Two California District Courts Order TCPA Claims to Arbitration

In Mendoza v. Ad Astra Recovery Services Inc., 2014 WL 47777 (C.D.Cal. 2014), Judge Snyder ordered a TCPA class action to arbitration.  The facts were as follows:

On September 9, 2013, plaintiff Miguel Mendoza filed this putative class action against defendant Ad Astra Recovery Services, Inc. (“Ad Astra”) on behalf of himself and all others similarly situated. Plaintiff asserts claims for (1) negligent violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), and (2) knowing violation of the TCPA. Plaintiff defines the proposed class as: “All persons within the United States who received any telephone call/s from Defendant or its agent/s and/or employee/s to said person’s cellular telephone made through the use of any automatic telephone dialing system and/or an artificial or pre-recorded voice and such person has not previously consented to receiving such calls within the four years prior to the filing of this Complaint.”  Compl. ¶ 24.  On November 18, 2013, Ad Astra moved to compel arbitration and to dismiss or stay this case.

Judge Snyder found that Ad Astra could enforce the Arbitration clause and that the TCPA claim fell within the Clause’ ambit.

The Court finds that Ad Astra has standing to en-force the arbitration provision. Under Ninth Circuit law, an agreement to arbitrate may “bind non-parties such as an intended third party beneficiary, an agent, or an assignee.” Comedy Club, Inc. v. Improv W. Associates, 553 F.3d 1277, 1287 (9th Cir.2009); cf. NORCAL Mut. Ins. Co. v. Newton, 84 Cal.App. 4th 64, 76 (2000) (“The common thread [in cases permit-ting a nonsignatory to compel arbitration] is the existence of an agency or similar relationship between the nonsignatory and one of the parties to the arbitration agreement. In the absence of such a relationship, courts have refused to hold nonsignatories to arbitration agreements.”). Here, plaintiff’s claims arise out of Ad Astra’s attempts to collect debts owed to Speedy Cash, and thus involve Ad Astra’s conduct as an agent of Speedy Cash. As an agent, Ad Astra thus has standing to enforce the arbitration provision in the contract between its principal Speedy Cash and plaintiff. See Naria v. Trover Solutions, Inc., 2013 WL 4516483 (N.D.Cal. Aug. 23, 2013) (permitting collection agency to compel arbitration based on con-tract between lender and borrower).  Moreover, Ad Astra’s status as an agent of Speedy Cash was expressly contemplated by the con-tract between Speedy Cash and plaintiff. As dis-cussed above, the contract defined “claim” to include any “claim, dispute or controversy between you and us (or related parties) that arises from or relates in any way to this Agreement.” Henits Decl. Ex A, at 3. The contract further defined “related parties” to include “all parent companies, subsidiaries and affili-ates of ours (including Ad Astra Recovery Services, Inc.).” Although plaintiff contends that the contract did not expressly use the word “agent” when refer-ring to Ad Astra, these definitions placed plaintiff on notice that he may be required to arbitrate claims against parties other than just Speedy Cash, including claims against Ad Astra. As such, the Court concludes that Ad Astra is entitled to enforce the agreement to arbitrate.  Second, plaintiff argues in the alternative that, even if Ad Astra may enforce the agreement to arbitrate, the claims at issue here fall outside the scope of the arbitration provision. Specifically, plaintiff argues that his claims that Ad Astra violated the TCPA do not “involve questions of Plaintiff and Defendant’s rights and obligations” under the contract. Opp. at 18. Accordingly, plaintiff reasons, his claims are “clearly collateral to the contract,” and thus “beyond the scope of the arbitration agreement.” Opp. at 18 (quoting Collins & Aikman Products Co. v. Bldg. Sys., Inc., 58 F.3d 16, 23 (2d Cir.1995)).  The Court finds this argument unpersuasive. Again, the contract between plaintiff and Speedy Cash defined the claims to be arbitrated to expressly include any “claim, dispute or controversy between you and us (or related parties) that arises from or re-lates in any way to this Agreement …; any of our marketing, advertising, solicitations and conduct relating to your request for Services; our collection of any amounts you owe; or our disclosure of or failure to protect any information about you. ‘Claim’ is to be given the broadest possible meaning and includes … claims based on any … statute….” Henits Decl. Ex A, at 3. This definition of arbitrable claims is broader than the arbitration provision in Collins & Aikman, where the contract limited arbitrable claims to “[a]ny claim or controversy arising out of or relating to” the contract. Collins & Aikman, 58 F.3d at 18. In particular, the contract here expressly defines arbitrable claims to include not only claims arising out of the contract, but also all claims arising out of “collection of any amounts [plaintiff] owe[s].”  Accordingly, even if plaintiff’s claims under TCPA do not “involve questions of Plaintiff and De-fendant’s rights and obligations” under the contract, plaintiff nonetheless expressly agreed to arbitrate claims arising out of debt-collection activities. Here, plaintiff’s claim that Ad Astra violated the TCPA when attempting to collect the debt owed to Speedy Cash expressly fall within the ambit of the agreement. See, e.g., McNamara v. Royal Bank of Scotland Grp., PLC, 2012 WL 5392181 (S.D.Cal. Nov. 5, 2012) (“Without a doubt, the phone calls to Plaintiff were related to ‘collection activity,’ an issue explicitly contemplated by the Agreement. Therefore, Plaintiff’s TCPA claims relate to his Agreement with Defendants, and are consequently subject to arbitration.”). Especially in light of the “liberal federal pol-icy favoring arbitration agreements,” Gilmer, 500 U.S. at 25, the Court thus concludes that plaintiff’s claims under the TCPA fall within the scope of the agreement to arbitrate. See Moses H. Cone Mem’l Hosp., 460 U.S. at 24–25 (explaining that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration”).

In Sherman v. RMH, LLC, 2014 WL 30318 (S.D.Cal. 2014), Judge Hayes ordered a TCPA claim to arbitration.  After finding the Arbitration clause not-unconscionable, Judge Hayes found the TCPA claim within the scope of the clause.

Plaintiff contends that the Motion to Compel Arbitration should be denied because the arbitration clause does not cover the misconduct alleged. Plain-tiff relies upon In re Jiffy Lube International, Inc., Text Spam Litigation, 847 F.Supp.2d 1253 (S.D.Cal.2012), where the district court denied a mo-tion to compel arbitration of a TCPA class-action claim alleging that plaintiffs received unauthorized text messages offering discount Jiffy Lube services. The arbitration agreement at issue was allegedly signed by a plaintiff when he visited one of the defendant’s store locations to receive an oil change. The court stated that the language of the arbitration agreement was “incredibly broad” because “[i]t pur-ports to apply to ‘any and all disputes’ between [the parties], and is not limited to disputes arising from or related to the transaction or contract at issue.” Id. at 1262. The court stated that “a suit … regarding a tort action arising from a completely separate incident could not be forced into arbitration-such a clause would clearly be unconscionable.” Id. at 1263. The court “decline[d] to rewrite the agreement” to contain a “typical limitation, such as that the dispute at issue must ‘arise out of or relate to’ the contract,” and stated that even if the court were willing to do so, “it is doubtful whether that language would encompass the claims here.” Id.  In this case, the arbitration clause in the Contract is not as broad as the provision in Jiffy Lube. The Contract states: “Any claim or dispute, whether in contract, tort, statute or otherwise …, between you and us or our employees, agents, successors or as-signs, which arise out of or relate to your credit ap-plication, purchase or condition of this vehicle, this contract or any resulting transaction or relationship … shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.” (Crumlish Decl., Ex. A, ECF No. 5–3 (emphasis added)). Unlike the contract for a onetime oil change at issue in Jiffy Lube, the Contract in this case envisions an ongoing relationship between Plaintiff and Defendant. See id. (providing for a 59 month/5 year payment term, requiring monthly payments of $199.73 by Plaintiff to Defendant).  The alleged phone message that forms the basis of the TCPA claims states: “I am calling to let you know it’s the anniversary of your vehicle’s purchase and it’s time for another status review of your owner-ship experience…. We truly hope your vehicle con-tinues to perform as expected, your interactions with our team remain positive, and your overall ownership experience is going well. If you have any questions or concerns, we encourage you to contact us di-rectly….” (Ibey Decl. ¶ 4, ECF No. 8–2). The Court finds that Plaintiff’s TCPA claims relate to his Con-tract with Defendant, and, accordingly, are subject to arbitration. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration”); Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 720 (9th Cir.1999) (“[A]n arbitration clause containing the phrase ‘any and all disputes arising under the arrangements contemplated hereunder’ must be interpreted liberally…. To require arbitration, Simula’s factual allegations need only ‘touch matters’ covered by the contract containing the arbitration clause and all doubts are to be resolved in favor of arbitrability.”) (citations omitted).