Azeveda v. Comcast Cable Communications Management LLC et al

Filing 37

ORDER finding as moot 36 Motion to Appear by Telephone; granting 19 Motion to Compel; denying 20 Motion to Remand. Signed by Judge Edward J. Davila on October 11, 2019.The Clerk shall administratively close the file. The Parties shall notify the Court within seven days of an arbitration ruling. All deadlines are terminated. (ejdlc2S, COURT STAFF) (Filed on 10/11/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

SAN JOSE DIVISION

7
8

MARIO AZEVEDA,
Plaintiff,

9

v.

10

United States District Court
Northern District of California

11

COMCAST CABLE COMMUNICATIONS
LLC, et al.,

Case No. 5:19-cv-01225-EJD
ORDER DENYING MOTION TO
REMAND; GRANTING MOTION TO
COMPEL ARBITRATION
Re: Dkt. Nos. 19, 20

Defendants.

12
13

Plaintiff moves for this case to be remanded claiming this Court lacks subject-matter

14

jurisdiction. Defendants separately move to compel arbitration and dismiss the putative class

15

action because Plaintiff agreed to arbitrate employment-related disputes with Defendants

16

individually. The Court finds this motion suitable for consideration without oral argument. See

17

N.D. Cal. Civ. L.R. 7-1(b). Having considered the Parties’ papers, the Court DENIES the motion

18

to remand and GRANTS the motion to compel arbitration.

19
20
21

I.

BACKGROUND
A. Factual Background
On January 30, 2019, Mario Azeveda (“Plaintiff”) filed this putative class action in the

22

Santa Clara County Superior Court of the State of California asserting that Comcast Cable

23

Communications, LLC and Comcast Cable Communications Management, LLC (“Defendants”)

24

violated federal and state laws. Notice of Removal to Federal Court, Ex. 1 (“Compl.”), Dkt. 1.

25

Plaintiff worked for Defendants, in California, from February 2005 through May 2016. Id. ¶¶ 8,

26

23; Declaration of Lynn Collins (“Collins Decl.”) ¶ 5, Dkt. 19.

27
28

Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
1

1
2

1. Claims
Plaintiff alleges violations of the Fair Credit Reporting Act (“FCRA”), which occurred

3

when Defendants obtained background checks for Plaintiff’s employment. He asserts analogous

4

California state law claims under Investigative Consumer Reporting Agencies Act (“ICRAA”),

5

Consumer Credit Reporting Agencies Act (“CCRAA”), and unfair competition law (“UCL”).

6

Plaintiff also included claims that Defendants failed to provide meal periods, rest periods, pay

7

hourly and overtime wages, accurate written wage statements, and timely pay all final wages.

8

Plaintiff claims that Defendants routinely acquired consumer, investigative, and credit
reports (i.e., credit and background reports) to conduct background checks on Plaintiff and other

10

prospective, current, and former employees. Compl. ¶ 2. Defendants then used information from

11
United States District Court
Northern District of California

9

the reports in their hiring process without providing or obtaining proper disclosures/authorizations

12

in compliance with federal and state law. Id.

13

Plaintiff alleges two FCRA claims. First, that Defendants disclosures did not meet the

14

“clear and conspicuous” and “stand alone” writing requirement. Id. ¶¶ 48–63. Second, that

15

Defendants failed to give proper “summary of rights” as required by 15 U.S.C. § 1681d(a)(1) and

16

15 U.S.C. § 1681g(c). Id. ¶¶ 66–76. These violations caused Plaintiff to have his “privacy and

17

statutory rights invaded in violation of the FCRA.” Id. ¶¶ 62, 65. He seeks “all available

18

remedies” including “statutory damages and/or actual damages.” Id. ¶¶ 63, 65. Plaintiff then

19

alleges analogous violations of California privacy law and other labor laws, and contends he lost

20

“money or property” as a result of Defendants’ misconduct. Id. ¶ 181.

21
22

2. Arbitration Program
In September 2013, Defendants “rolled out” an alternative dispute resolution program

23

called “Comcast Solutions” to California region employees, including Plaintiff. Collins Decl. ¶ 3.

24

Comcast Solutions is designed to make it easier for employees to resolve legal claims. It specifies

25

a three-step procedure for resolving disputes between Comcast and its employees. Id., Ex. 1 at 2;

26

Ex. 2 at 4; Ex. 10 at 5. First, an internal “Comcast Solutions Lead” reviews the claim to determine

27

if it is a covered legal claim. Id., Ex. 2 at 4. Covered legal claims include “[m]ost claims that

28

Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
2

1

assert a violation of law relating to [] employment.” Id., Ex. 3 at 3; see also id. (listing a non-

2

exhaustive list of covered claims). Claims, however, pertaining to the unauthorized use or

3

disclosure of confidential, trade secret or private information under statutory or common law are

4

not covered claims (under this 2013 agreement). Id. at 4. Comcast Solutions covers claims

5

brought against both Defendants. Id., Ex. 2 at 1. If it is a covered claim, the Comcast Solutions

6

lead will work with the employee and Comcast Cable representatives to develop a satisfactory

7

solution. Id., Ex. 2 at 4–5.

8
9

Second, if an employee is unsatisfied with the proposed solution, they may seek nonbinding mediation through an outside, professional dispute resolution organization, such as the
Judicial Arbitration and Mediation Services organization (“JAMS”) or the American Arbitration

11
United States District Court
Northern District of California

10

Association (“AAA”). Id., Ex. 2 at 5. The employee does not have to pay any fees in connection

12

with mediation and both sides have input into selecting the mediator. Id., Ex. 3 at 3.

13

Finally, if the employee is still not satisfied, they may request a binding, two-day

14

arbitration hearing through JAMS or the AAA before a mutually selected arbitrator. Id., Ex. 2 at

15

6. The employee is required to pay (at most) a $150 arbitration initiation fee, which is refunded if

16

they prevail on any portion of their claim. Id., Ex. 2 at 7.

17

Comcast provided employees information about this program in both hard-copy and

18

electronic form and reminded employees about the opt-out deadline (see infra). Id., Ex. 5–8.

19

Plaintiff received these materials. See id., Ex. 6 (mailing form sent to Plaintiff by first-class mail);

20

Id., Ex. 7 (email sent to Plaintiff regarding program); Ex. 8 (electronic “read-receipt” indicating

21

receipt of program materials). Plaintiff did not opt out of the program; thus, he agreed to

22

participate in it. Id. ¶ 13; see also Supplemental Declaration of Lynn Collins (“Supp. Decl.”) ¶ 2,

23

Dkt. 29-1 (detailing the number of people that have opted out).

24

In late 2015, Comcast revised certain aspects of the program. Id., Ex. 11. These changes

25

were published on the internal employee website, which all employees can access. Among other

26

things, the change allowed employees more flexibility as it let them skip the first two steps before

27

pursuing arbitration. Id. It also removed the exception about excluding claims “for breach of data

28

Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
3

1

privacy.” Id., Ex. 10 at 3. Employees were advised that if they wished to remain under the 2013

2

Program Terms, they should contact Comcast Solutions by phone or email. Id., Ex. 11 (“If you

3

need additional time to review the enclosed documentation and make your decision, no problem!

4

Just contact the Comcast Solutions Team . . . .”). Plaintiff did neither. Id. ¶ 16.

5

In January 2016, Comcast issued a revised Employee Handbook. Id. ¶ 17. Employees

6

were required to review the Handbook and related content concerning the 2015 Program changes.

7

Id. Employees were required to electronically acknowledge that they had read and understood the

8

changes. Id.; see also id., Ex. 12 at 2. Plaintiff acknowledged reading and understanding the 2016

9

Employee Handbook and 2015 Program changes. Id. ¶ 17.

10

The relevant terms of the agreement are as follows:

United States District Court
Northern District of California

11

1. Class Action Waiver. The Comcast Solutions Program includes a class action waiver,

12

which, in the 2013 agreement, is set apart from the other text and bolded. It states

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

If you agree to participate in the program, both you and the
company waive the right to bring a civil action or have a jury
trial for any covered legal claims. You also waive the right to
bring or participate in a class action or collective or
representative action on covered legal claims. All covered
claims will be handled through the three-step Comcast Solutions
process; both you and the company will be bound by the final
decision of the arbitrator.
Id., Ex. 1 at 8; see also id., Ex. 2 at 7 (“As part of this Program . . . [you] waive the right
to . . . file, bring, or maintain any Claims covered by the Program on a class action basis,
collective action basis, or representative action basis.”); Id., Ex. 10 at 9.
2. Arbitrability. To the extent there is a question about whether an issue is arbitrable, the
Program specifies that the arbitrator will decide the issue. It states:
Any issue concerning arbitrability of a particular issue or claim
pursuant to the arbitration agreement . . . shall be resolved by the
Arbitrator, not the court.
Id., Ex. 2 at 8.
3. Opt-Out. If an employee does not want to participate in Comcast Solutions, they can “opt
out” by submitting an Opt Out Request Form by a certain date (about five weeks after
Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
4

1

notification of the program). Collins Decl. ¶¶ 7, 13, 16.

2

Before filing this motion, Defendants’ counsel sent an arbitration demand letter to
Plaintiff’s counsel describing Comcast Solutions and requesting Plaintiff honor his commitment to

4

arbitrate this dispute. Declaration of Daryl S. Landberg (“Landy Decl.”) ¶ 2, Ex. 13. The parties

5

met and conferred by phone, during which Plaintiff’s counsel expressed that Plaintiff was not

6

willing to arbitrate his claims because: (1) Comcast Solution’s three-step dispute resolution

7

process is substantively unconscionable; (2) Comcast Solutions does not encompass the FCRA

8

and related state law claims because the program excludes “[c]laims for . . . unauthorized use or

9

disclosure of confidential, trade secret or private information under statutory or common law;”1

10

and (3) Comcast Solutions’ provision that waives an employee’s right to bring a representative

11
United States District Court
Northern District of California

3

action includes claims under the California Private Attorneys General (“PAGA”)2, rendering the

12

agreement substantively unconscionable. Id., Ex. 14; Arbitration Mot. at 8.
B. Procedural Background

13

On March 5, 2019, Defendants removed this action to federal court, invoking federal-

14
15

question jurisdiction over the FCRA claims and supplemental jurisdiction over the other state-law

16

claims.3 See Dkt. 1. Plaintiff moves to remand, arguing that because he lacks Article III standing

17

for his FCRA claim, removal was improper as this Court lacks subject-matter jurisdiction. See Pl.

18

Motion to Remand (“Remand Mot.”); Dkt. 20. On June 28, 2019, Defendants filed their

19

opposition to the motion to remand. Opposition to Remand (“Remand Opp.”), Dkt. 28. Finally,

20

on July 12, 2019, Plaintiff filed a reply regarding his motion to remand. Reply re Motion to

21

Remand (“Remand Reply”), Dkt. 30.

22
23
24
25
26
27
28

1

Notably, the 2015 amendments to the Program removed language that excluded claims for
unauthorized use or disclosure of confidential, trade secret, or private information. Landy Decl.,
Ex. 15.
2
This Court does not address this argument because no PAGA claims are presented. Arbitration
Reply at 13; Alvarado v. Lowe’s Ctrs., LLC, 2018 WL 6697181, at *3 (N.D. Cal. Dec. 20, 2018)
(noting that because Plaintiff did not allege a PAGA claim, it is irrelevant whether a PAGA waiver
is unconscionable).
3
Defendants also invoked Class Action Fairness Act (“CAFA”) jurisdiction. See 28 U.S.C.
§ 1332(d). Because this Court concludes it has federal-question and supplemental jurisdiction, it
does not reach any CAFA arguments.
Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
5

Defendants moved on June 6, 2019, to compel arbitration on an individual basis and to

1
2

dismiss the putative class claims, pursuant to its arbitration agreement with Plaintiff. Motion to

3

Compel Arbitration (“Arbitration Mot.”), Dkt. 19. Plaintiff filed an opposition to this motion on

4

June 27, 2019. Opposition re Motion to Compel Arbitration (“Arbitration Opp.”), Dkt. 26-1.

5

Defendant filed a reply on July 11, 2019. Reply re Motion to Compel Arbitration (“Arbitration

6

Reply”), Dkt. 29.

7
8
9

II.

MOTION TO REMAND
A. Legal Standard
Removal of a civil action from state to federal court is appropriate only if the federal court

has subject-matter jurisdiction over the matter. 28 U.S.C. § 1444(a). If a case is improperly

11
United States District Court
Northern District of California

10

removed, “the federal court must remand the action because it has no subject-matter jurisdiction to

12

decide the case.” ARCO Envtl. Remediation, LLC v. Dep’t of Health & Envtl. Quality of the State

13

of Mont., 213 F.3d 1108, 1113 (9th Cir. 2000); see also 28 U.S.C. 1447(c). The burden to

14

establish that jurisdiction exists rests upon the party asserting jurisdiction. Hunter v. Philip Morris

15

USA, 582 F.3d 1039, 1042 (9th Cir. 2009). The “strong presumption” against removal jurisdiction

16

means that the court “resolves all ambiguity in favor of remand to state court.” Id. (quoting Gaus

17

v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).

18

Article III of the United States Constitution limits federal courts’ subject-matter

19

jurisdiction to actual “cases” and “controversies.” U.S. Const. art. III, § 2. To satisfy the case-or-

20

controversy requirement, a plaintiff must have standing to bring a claim. See, e.g., Lexmark Int’l,

21

Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014); Spokeo, Inc. v. Robins, 136 S.

22

Ct. 1540, 1547 (2016). Article III standing requires that a plaintiff have: (1) suffered an injury in

23

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) is likely to be

24

redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

25

(1992). To establish an injury in fact required for Article III standing, “a plaintiff must show that

26

he or she suffered an invasion of a legally protected interest that is concrete and particularized and

27

actual or imminent.” Spokeo, 136 S. Ct. at 1548. For an injury to be “particularized” it “must

28

Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
6

1

affect the plaintiff in a personal and individual way.” Id.; see also Valley Forge Christian Coll. v.

2

Ams. United for Separation of Church and State, 454 U.S. 464, 472 (1982) (standing requires that

3

the plaintiff “‘personally has suffered some actual or threatened injury’”). A “concrete” injury

4

must be “de facto;” it must be “real” and “actually exist.” Spokeo, 136 S. Ct. at 1548.

5
6

B. Discussion
Here, Plaintiff moves to remand this case on the grounds that there is no subject-matter

7

jurisdiction because Plaintiff failed to sufficiently allege Article III standing. Remand Mot. at 8–

8

9. Plaintiff contends he has only asserted a “bare procedural violation,” and thus has not asserted

9

any concrete injury as to his FCRA (or other) claims. Id. at 8.

10

Plaintiff’s first cause of action concerns a violation of FRCA Section 1681b(b)(2)(A),

United States District Court
Northern District of California

11

which “prohibits an employer from obtaining an applicant’s consumer report without first

12

providing the applicant with a standalone, clear and conspicuous disclosure of its intention to do

13

so.” Gilberg v. Cal. Check Cashing Stores, 913 F.3d 1169, 1173 (9th Cir. 2019); see also Compl.

14

¶¶ 43–63. His second cause of action concerns a violation of FRCA Sections 1681d and 1681g(c).

15

Compl. ¶¶ 66–67. Section 1681d requires the consumer be notified that she may make a written

16

request for the report. 15 U.S.C. § 1681d. Section 1681g(c) requires the provision of a “summary

17

of rights.” Id. § 1681g(c).

18

Generally, pleading a “bare procedural violation” of the FCRA, divorced from “any

19

concrete harm,” is insufficient to satisfy the injury-in-fact requirement. Syed v. M-I, LLC, 853

20

F.3d 492, 499 (9th Cir. 2017) (quoting Spokeo, 136 S. Ct. at 1549). At the pleading stage,

21

however, “general factual allegations of injury resulting from the defendant’s conduct may suffice,

22

for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that

23

are necessary to support the claim.’” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)

24

(quoting Lujan, 405 U.S. at 561) (alteration in original). Economic injury is “clearly a sufficient

25

basis for standing.” Id. at 1069 (“[Economic injury] is a quintessential injury-in-fact.”); San

26

Diego Cty. Guns Rights Comm. v. Reno, 98 F.3d 1121, 1130 (9th Cir. 1996).

27
28

Defendants contend, and the Court agrees, that Plaintiff has alleged an injury-in-fact
Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
7

1

because his UCL claim, which is premised on the FCRA violations, asserts an economic injury,

2

i.e. “Plaintiff lost money or property as a result of the aforementioned unfair competition.”

3

Remand Opp. at 8 (citing Compl. ¶ 181) (emphasis added); see also Maya, 658 F.3d at 1068. The

4

UCL prohibits “unfair competition;” meaning “any unlawful, unfair, or fraudulent business act or

5

practice.” Cal. Bus. & Prof. Code § 17200. Plaintiff asserts that Defendants violated the UCL

6

because they violated “[f]ederal and California laws requir[ing] certain disclosures and proper

7

authorization before conducting background checks and obtaining information from credit and

8

background reports in connection with a hiring process.” Compl. ¶ 177. Plaintiff alleges this

9

unlawful conduct amounted to “unfair competition.” See, e.g., id. ¶¶ 181–82. Plaintiff expressly
alleges he “lost money or property as a result of the aforementioned unfair competition,” which

11
United States District Court
Northern District of California

10

includes both FCRA claims. Id. ¶ 181. Accordingly, while Plaintiff alleges only “bare procedural

12

harm” in his FCRA causes of action,4 he has re-alleged that he suffered an economic injury from

13

the violations within the UCL section of the Complaint. See Rodriguez v. U.S. Healthcare, Inc.,

14

388 F. Supp. 3d 1095, 1102 (N.D. Cal. 2019) (concluding, under identical circumstances,

15

complaint plead an injury-in-fact).
The Court thus holds that because Plaintiff has pled Article III standing as to the FCRA

16
17

claims, this Court has federal-question jurisdiction. Further, because the economic injury alleged

18

relates to all causes of action asserted, Plaintiff has pled standing as to the other related state-law

19

claims. Because these claims “arise out of the same case or controversy” as the FCRA claim, the

20

Court also has supplemental jurisdiction over Plaintiff’s state law claims. See 28 U.S.C.

21

§ 1367(a); see also Swamy v. Title Source, Inc., 2017 WL 3021042, at *4 (N.D. Cal. July 17,

22

2017) (finding supplemental jurisdiction because claims all arose “out of a cohesive narrative:

23
24
25
26
27
28

4

This conclusion accords with other decisions from this District. See, e.g., Williams v. Nichols
Demos, Inc., 2018 WL 3046507 (N.D. Cal. June 20, 2018) (holding only bare procedural violation
of FCRA pled because failed to allege any concrete harm flowing from the violation). The
decisions, like Williams, which Plaintiff cites, do not address the UCL claim realleging an injuryin-fact for the FCRA violations. Cf. Remand Mot. at 9–10; Remand Reply at 6–8. Accordingly,
the case law Plaintiff cites as support is unhelpful in this context because the complaints in those
cases were drafted such that Plaintiff did not plead an injury in fact. See Remand Opp. at 9–10.
Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
8

1

defendant’s conduct towards plaintiff in his capacity as an employee”). Accordingly, Plaintiff’s

2

motion to remand is DENIED.

3
4

III.

MOTION TO COMPEL ARBITRATION
A. Legal Standard

5

The Federal Arbitration Act (“FAA”) governs the agreement between the Parties. Collins

6

Decl., Ex 2 at 7. Under the FAA, written arbitration agreements “shall be valid, irrevocable, and

7

enforceable, save upon such grounds as exist at law or in equity for the avoidance of any

8

contract.” 9 U.S.C. § 2. The FAA removes the district court’s discretion and mandates that courts

9

direct the parties to “proceed to arbitration on issues as to which an arbitration agreement has been
signed.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)

11
United States District Court
Northern District of California

10

(quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218 (1985)). The FAA establishes a

12

“liberal federal policy favoring arbitration agreements.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

13

1621 (2018). Courts must “rigorously . . . enforce arbitration agreements according to their terms,

14

including terms that specify with whom the parties choose to arbitrate their disputes and the rules

15

under which the arbitration will be conducted.” Id. Any doubts must be resolved in favor of

16

arbitration. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003).

17

The Court’s role is limited to deciding (1) whether is there a valid agreement to arbitrate

18

and (2) if yes, whether the agreement encompasses the dispute at issue. Chiron Corp., 207 F.3d at

19

1130. If both are answered in the affirmative, the court must compel arbitration. 9 U.S.C. §§ 2–4.

20

B. Discussion

21

Plaintiff argues that the arbitration agreement is unenforceable because the 2013 agreement

22

is procedurally and substantively unconscionable. He further argues that the 2015 Program cannot

23

apply retroactively and eradicate the alleged unconscionability of the 2013 agreement. As an

24

initial matter, therefore, the Court must determine which agreement governs the Parties.

25
26

1. The 2015 Program Covers Plaintiff’s Claims
Plaintiff argues that California law, which this Court must use to determine whether an

27

arbitration agreement exists, does not permit retroactive changes to an arbitration agreement.

28

Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
9

1

Arbitration Opp. at 22; First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)

2

(“[C]ourts . . . should apply ordinary state-law principles that govern the formation of contracts.”).

3

Plaintiff further contends that even if California law allows retroactive application, the 2015

4

modifications are inapplicable because they “do not expressly provide for retroactivity.” Id. at 23.

5

Plaintiff states that in this district, for an arbitration agreement to apply retroactively, it must have

6

“clear and unambiguous language specifically stating that it applied retroactively.” Id. (citing

7

Trudeau v. Google LLC, 349 F. Supp. 3d 869, 877 (N.D. Cal. 2018)).

8

Plaintiff misunderstands Trudeau; there, the court, opposite to Plaintiff’s contention, held
that an arbitration agreement “need not apply retroactively in order to cover previously accrued

10

claims.” 349 F. Supp. 3d at 878. The parties were disputing the application of Section 13(A) of

11
United States District Court
Northern District of California

9

the agreement. Id. at 877. Section 12 of the agreement stated, “other than changes made under

12

Section 13(G), the changes to the Terms will not apply retroactively.” Id. The plaintiff argued

13

that Section 12 thus meant amendments to the agreement outside Section 13(G) did not apply

14

retroactively. Id. Instead of reading Section 13(A) in light of Section 12, Judge Freeman looked

15

to “the plain language of [Section 13(A)].” Id. at 878; see also id. (noting using terms like

16

retroactive application” only “muddies” the determination of whether the arbitration provision

17

applies). The plain language of Section 13(A) expressly covered “claims that arose before” the

18

section was amended. Id. (emphasis added). Thus, in order for amendments to an arbitration

19

agreement to apply retroactively, they need not explicitly use the term “retroactively.” Id.

20

Likewise, here, the 2015 Comcast Solutions Program covers claims that arose before the

21

2015 amendments: it covers “claims related to or arising from any aspect of the employment

22

relationship.” Collins Decl., Ex. 10 at 2 (emphasis added); see also Sanfilippo v. Tinder, Inc.,

23

2018 WL 6681197, at *5 (C.D. Cal. Dec. 18, 2018) (“[T]he addition of ‘in connection with’ after

24

the initial clause ‘arising out of’ seems to extend the scope of the Agreement well beyond present

25

or future disputes.” (emphasis added)). The language “arising out of relating to” and “any dispute

26

or controversy” make the Program’s coverage of the employment relationship “very broad and

27

inclusive.” Smith v. Vmware, Inc., 2016 WL 54120, at *6 (N.D. Cal. Jan. 5, 2016). The 2015

28

Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
10

1

Program, like the one in Trudeau, is open-ended; it has no temporal limitation on the scope of

2

claims. See Jones v. Deja Vu, Inc., 419 F. Supp. 2d 1146, 1150 (N.D. Cal. 2005) (“Where an

3

arbitration provision does not contain a temporal limitation, the parties may be compelled to

4

arbitrate despite the fact that the challenged conduct predates the signing of the agreement.”).

5

Therefore, by its plain terms, the 2015 Program applies to claims accrued prior to its enactment

6

and covers the claims asserted herein.5
2. There Is a Valid Arbitration Agreement

7

Plaintiff does not argue the 2015 Program is unconscionable. To the contrary, Plaintiff

8
9

spends pages analyzing why the 2013 agreement is unconscionable as compared to the 2015
Program. See Arbitration Reply at 2 (“Plaintiff dedicates multiple pages of his Opposition to why

11
United States District Court
Northern District of California

10

the 2015 Comcast Solutions Program passes muster.” (citing Arbitration Opp. at 19–22)).

12

Plaintiff bears the burden of proving the agreement is both procedurally and substantively

13

unconscionable. Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1108 (9th Cir. 2002). To the

14

extent Plaintiff even addresses unconscionability of the 2015 Program, he cannot meet his burden

15

of showing both. He was given meaningful opportunity to opt out of the agreement and certified

16

that he had read the agreement. See, e.g., Kilgore v. KeyBank Nat’l Ass’n, 718 F.3d 1052, 1059

17

(9th Cir. 2013) (holding arbitration provision not procedurally unconscionable if signatories able

18

to opt out). Accordingly, because Plaintiff cannot show procedural unconscionability, the

19

agreement is valid.6

20
21
22
23
24
25
26
27
28

5

Plaintiff’s citation to Peleg v. Neiman Marcus Group, Inc., 140 Cal. Rptr. 3d 38 (Ct. App. 2012)
and Cobb v. Ironwood Country Club, 183 Cal. Rptr. 3d 282 (Ct. App. 2015) is unavailing.
Remand Opp. at 22. As the Trudeau court noted, these cases were concerned with “potentially
illusory contract terms by which an employer could change the terms of the arbitration provision
at any time, even after a dispute had arisen.” 349 F. Supp. 3d at 880. The cases were inapplicable
because Google notified plaintiffs of proposed changes and thus did not “unilaterally change” the
arbitration agreements. Id. at 881. Likewise, here, Defendants notified employees of the proposed
changes and allowed them a reasonable opportunity to opt-out of the changes. Collins Decl.
¶¶ 15–16.
6
To this extent, Plaintiff also cannot show substantive unconscionability because the three steps
are no longer required and thus Defendants cannot get a “sneak peek” at Plaintiff’s claims. See
Arbitration Opp. at 17–18.
Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
11

3. Plaintiff’s Claims Are Within the Scope of the Agreement7

1

Having decided the 2015 Program applies, Plaintiff’s argument that the FCRA and

2
3

analogous state-law claims are outside the agreement is not persuasive. Arbitration Mot. at 18.

4

The 2015 Program removed the exclusion of “[c]laims for . . . unauthorized use or disclosure of

5

confidential, trade secret or private information under statutory or common law.” Collins Decl.,

6

Ex. 10 at 2–3. Now, by its terms, the 2015 Program covers the exact federal and state violations

7

claimed. Id. Further, the claims excluded is an exhaustive list, and the claims at hand do not

8

appear on that list. Id. at 3. Accordingly, Plaintiff’s claims are within the scope of the 2015

9

Program.
Finally, Plaintiff argues he is not covered by this 2015 Program because he did not consent

10

United States District Court
Northern District of California

11

to it. Arbitration Opp. at 2–3 (“There is no evidence that Plaintiff actually reviewed the contents

12

of the revised Comcast Solutions program. . . . Although Plaintiff acknowledged that he

13

‘reviewed’ and ‘understood’ the [2015 Program], he did not expressly consent to it.”). Plaintiff

14

misunderstands the standard. Through his electronic acknowledgment, he did expressly consent to

15

the Program and agreed to the updated arbitration provisions. Craig v. Brown & Root, Inc., 100

16

Cal. Rptr. 2d 818, 821 (Ct. App. 2000) (holding binding arbitration agreement when employer

17

mailed documents to employee’s home and they had not been returned despite employee’s

18

protestations that she had not received it); Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1439–40 (9th

19

Cir. 1994) (holding arbitration agreement binding because put in employee handbook). Further,

20

by his continued employment, he implicitly accepted the terms. Davis v. Nordstrom, Inc., 755

21

F.3d 1089, 1093 (9th Cir. 2014) (“Where an employee continues in his or her employment after

22

being given notice of the changed terms or conditions, he or she has accepted those new terms or

23

conditions.”). Accordingly, Plaintiff is bound by the 2015 Program.

24
25
26
27
28

7

The Court acknowledges Defendants’ argument that the terms of the arbitration agreement
delegate to the arbitrator the issue of claim coverage. Arbitration Reply at 5. The test established
by the Ninth Circuit, however, sets forth a two-step inquiry: (1) is there a valid agreement and (2)
are the claims at hand within the scope of that agreement. Chiron Corp., 207 F.3d at 1130. This
Court does not view this case as the appropriate case to determine whether the second part of this
test can be contracted around.
Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
12

1

4. The Class Action Waiver is Enforceable
Plaintiff waived his right to bring a class action. Collins Decl., Ex. 10 at 9. Class action

2
3

waivers are enforceable where an employee has an opportunity to opt out. Garcia v. Comcast

4

Cable Commc’n Mgmt. LLC, 2017 WL 1210044, at *4 (N.D. Cal. Mar. 31, 2017).
Here, Plaintiff had the option to opt out. Collins Supp. Decl. ¶ 2. Despite having five-

5
6

weeks to opt-out, Plaintiff never opted out of the Program. Id. Accordingly, because Plaintiff had

7

an opt-out option, the class action wavier is enforceable.

8
9

IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion to remand is DENIED and Defendants’

motion to compel arbitration is GRANTED. Plaintiff shall arbitrate his claims on an individual

11
United States District Court
Northern District of California

10

basis, rather than on a class, collective, or representative basis. This case is STAYED pending

12

resolution of the arbitration proceedings. The Clerk shall administratively close the file. The

13

Parties shall notify the Court within seven days of an arbitration ruling.

14
15
16
17

IT IS SO ORDERED.
Dated: October 11, 2019
______________________________________
EDWARD J. DAVILA
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

Case No.: 5:19-cv-01225-EJD
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL
13