Zacher v. Comcast Corporation
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 6/20/2018: Defendant's motion to compel arbitration 20 is granted. Arbitration shall proceed. Therefore, this lawsuit is administratively dismissed without prejudice subj ect to full reinstatement, if requested by either party, upon completion of the required arbitration. See Davis v. Fenton, 857 F.3d 961, 962 (7th Cir. 2017). Civil case terminated. [For further details see Memorandum Opinion and Order]. Mailed notice(is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHASON ZACHER,
Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS
LLC,
Defendant.
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No. 17 CV 7256
Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
For the reasons stated below, defendant’s motion to compel arbitration is granted.
BACKGROUND
Plaintiff, Chason Zacher, alleges in this putative class action that defendant Comcast
Cable Communications, LLC (“Comcast”) violated the Telephone Consumer Protection Act, 47
U.S.C. § 227 et seq. (“TCPA”), when it called his cellular telephone in August 2017, “looking
for the account holder for a specific address.”1 (ECF No. 18, First Am. Compl. ¶¶ 3, 14, 17.)
Comcast moves to compel arbitration and stay this action on the basis that Zacher previously
entered into a Subscriber Agreement with Comcast that requires arbitration of the parties’
disputes.
DISCUSSION
The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), governs the enforcement of
arbitration agreements. Int’l Ins. Co. v. Caja Nacional de Ahorro y Seguro, 293 F.3d 392, 395
(7th Cir. 2002). The FAA “evinces a national policy favoring arbitration” and “requires federal
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That address is 823 Greenbrier Road in DeKalb, Illinois, which is the location of Zacher’s
college fraternity, Alpha Epsilon Pi. (ECF No. 25-1, Decl. of Chason Zacher ¶¶ 5-6.)
courts to place arbitration agreements on an equal footing with other contracts and enforce them
according to their terms.” A.D. v. Credit One Bank, N.A., 885 F.3d 1054, 1059-60 (7th Cir.
2018) (internal quotation marks and citations omitted). The Court will compel arbitration under
the FAA “if three elements are present: (1) an enforceable written agreement to arbitrate, (2) a
dispute within the scope of the arbitration agreement, and (3) a refusal to arbitrate.” Id. at 1060.
The third element is satisfied because Zacher refuses to arbitrate.
Enforceable Written Agreement to Arbitrate
Whether a binding arbitration agreement exists is determined under principles of state
contract law. Gore v. Alltel Commc’ns, LLC, 666 F.3d 1027, 1032 (7th Cir. 2012). Because all
relevant events occurred in Illinois, Illinois law determines the validity of the agreement. See
Tinder v. Pinkerton Sec., 305 F.3d 728, 733 (7th Cir. 2002). Under Illinois law, where the
language of a contract is plain, the agreement is enforced as written. Gore, 666 F.3d at 1033
(citing Carey v. Richards Bldg. Supply Co., 856 N.E.2d 24, 27 (Ill. App. Ct. 2006)).
In support of its motion, Comcast submits the declaration of Nicole Patel, a Comcast
Director of Regulatory Compliance, who states that Comcast’s business records reflect that
Zacher is listed as a contact for a Comcast account that was opened in August 2011 and
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registered to Alpha Epsilon Pi.2 (ECF No. 21-2, Decl. of Nicole Patel ¶¶ 1, 4.) The telephone
number that Zacher alleges Comcast called without his consent is associated with the Alpha
Epsilon Pi account.
(Id. ¶ 4.)
Comcast’s records also reflect that Zacher subsequently
personally subscribed to Comcast’s service for an address on West Lincoln Highway in DeKalb,
and then again in July 2014 for an address on Normal Road in DeKalb. (Id. ¶ 5.) Comcast
provided service to the Normal Road address and received payments on the account (the
“Normal Road account”), and the service was disconnected in July 2015.
(Id. ¶¶ 5, 8.)
According to Comcast, its regular business practice (it does not specify at what time) is for its
installation technicians to provide Comcast’s Subscriber Agreement to customers in connection
with the installation and for the technicians to direct customers to read and accept the Subscriber
Agreement when activating service. (Id. ¶ 6.) Attached to Patel’s declaration is a copy of the
“Comcast Customer Privacy Notice” and the “Comcast Agreement for Residential Services”
(“Subscriber Agreement”) as they existed at the time Zacher personally subscribed to Comcast’s
service for the Normal Road account. (Id. ¶ 7.) The Subscriber Agreement provides in pertinent
part:
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The Court is unpersuaded by Zacher’s contention that Patel’s declaration constitutes
inadmissible hearsay for lack of personal knowledge. In her submissions, Patel avers that her
statements are based on her personal knowledge or review of Comcast’s business records in the
scope of her duties. The contents of Comcast’s business records pertaining to Zacher fall under the
business-records exception to hearsay, Federal Rule of Evidence 803(6), which “clearly does not
require that the witness have personal knowledge of the entries in the records.” United States v.
Christ, 513 F.3d 762, 770 (7th Cir. 2008). Furthermore, Federal Rule of Evidence 406 provides that
“[e]vidence of . . . an organization’s routine practice may be admitted to prove that on a particular
occasion the . . . organization acted in accordance with the habit or routine practice. The court may
admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.”
The Court also rejects Zacher’s argument that Patel’s declaration is “too vague to be given any
weight.” (ECF No. 25, Pl.’s Mem. Opp’n Def.’s Mot. at 2.)
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•
This Agreement contains a binding arbitration provision in Section 13 that
affects your rights under this Agreement with respect to all Service(s).
•
You will have accepted this Agreement and be bound by its terms if you
use the Service(s) or otherwise indicate your affirmative acceptance of
such terms.
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If you have a Dispute (as defined below) with Comcast that cannot be
resolved through an informal dispute resolution with Comcast, you or
Comcast may elect to arbitrate that Dispute in accordance with the terms
of this Arbitration Provision rather than litigate the Dispute in court.
Arbitration means you will have a fair hearing before a neutral arbitrator
instead of in a court by a judge or jury. Proceeding in arbitration may
result in limited discovery and may be subject to limited review by courts.
•
The term “Dispute” means any dispute, claim, or controversy between you
and Comcast regarding any aspect of your relationship with Comcast,
whether based in contract, statute, regulation, ordinance, tort (including,
but not limited to, fraud, misrepresentation, fraudulent inducement,
negligence, or any other intentional tort), or any other legal or equitable
theory, and includes the validity, enforceability or scope of this
Arbitration Provision. “Dispute” is to be given the broadest possible
meaning that will be enforced.
•
. . . THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY
CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS
ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING
CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE
CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A
PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR
OTHER PERSONS.
•
This Arbitration Provision shall survive the termination of your Service(s)
with Comcast.
(Patel Decl., Ex. 1, Subscriber Agreement, at 1, 16-18.) The Subscriber Agreement also contains
a provision that allows subscribers to opt out of arbitration by notifying Comcast within thirty
days of receiving the Subscriber Agreement. (Id. at 16.) Patel states that Comcast’s regular
business practice is to maintain records of such opt-out requests, and it has no record of Zacher’s
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having notified Comcast that he wished to opt out of the arbitration provision. (Patel Decl. ¶
11.)
In response to Comcast’s motion, Zacher submits a declaration in which he states that he
set up his Comcast service himself, so a Comcast service technician never provided him with a
professional installation. (Zacher Decl. ¶¶ 8-9.) He denies that he was “provided a copy” of the
Subscriber Agreement and says that he never agreed to its terms and first became aware of the
existence of the arbitration clause when Comcast filed its motion to compel arbitration. (Id. ¶¶
9-10.)
In reply, Comcast argues that because it routinely provides a copy of the Subscriber
Agreement to all subscribers, regardless of whether they install their own service or have a
Comcast technician install the service, Zacher’s averments are insufficient to raise a genuine
issue of fact as to whether the parties entered into a contract. (ECF No. 26, Def.’s Reply at 4-6.)
Comcast submits a supplemental declaration from Patel, who states that Comcast’s records
reflect that for the Normal Road account, Zacher was sent a “self-install kit.” (ECF No. 26-1,
Suppl. Decl. of Nicole Patel ¶ 5.) Comcast’s regular business practice since prior to 2014 is to
include in every self-install kit a “Welcome Kit” that contains a hard copy of the Subscriber
Agreement, along with other service-related information.
(Id. ¶ 6.)
The version of the
Subscriber Agreeement that was in effect at the time Zacher was sent a self-install kit is the same
as was attached to Patel’s initial declaration. (Id. ¶ 7.)
Comcast has presented evidence through Patel’s declarations that Comcast mailed Zacher
a self-install kit for the Normal Road account and that Comcast’s routine business practice at the
relevant time was to provide customers with a hard copy of the Subscriber Agreement in the
self-install kit. A custom or policy of mailing creates a presumption that such mailing occurred
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and was delivered. See, e.g., Pohlman v. NCR Corp., No. 12 CV 6731, 2013 WL 3776965, at *3
(N.D. Ill. July 17, 2013). Zacher’s general denial that he “was provided” with the Subscriber
Agreement “as part of the set-up” of service is not enough to overcome this presumption. See
O’Quinn v. Comcast Corp., No. 10 CV 2491, 2010 WL 4932665, at *3 (N.D. Ill. Nov. 29, 2010).
The FAA does not require agreements to be signed, only written. 9 U.S.C. § 3. Zacher installed
his own Comcast service and proceeded to use the service, which the Subscriber Agreement
states constitutes acceptance of its terms, and Zacher provides no evidence to rebut Comcast’s
evidence that he did not opt out of the arbitration provision. Zacher does argue, citing Wexler v.
AT&T Corp., 211 F. Supp. 3d 500 (E.D.N.Y. 2016) (denying defendant’s motion to compel
arbitration on the ground that there was a lack of mutual intent to arbitrate “literally every
possible dispute” between the parties), that arbitration clauses “with unlimited scope . . . raise
questions of contract formation.” (Pl.’s Mem. Opp’n Def.’s Mot. at 7.) Zacher urges this Court
to “adopt the reasoning in Wexler and refuse to compel arbitration” because “the arbitration
clause at issue is so broad as to raise serious doubts as to mutual intent.” (Id. at 7-9.) The
Comcast arbitration clause, however, does not have “unlimited” scope. It is confined to disputes
regarding the parties’ relationship. Wexler is distinguishable because the arbitration provision at
issue there was much broader. It stated that the parties agreed “to arbitrate all disputes and
claims between” them. 211 F. Supp. 3d at 501.
Accordingly, Comcast has shown that the parties entered into an enforceable written
agreement to arbitrate.
Dispute Within Scope of Subscriber Agreement
Comcast argues that Zacher’s TCPA claim is related to an aspect of his relationship with
Comcast because the claim arises from calls that were allegedly placed to a telephone number
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that Zacher provided to Comcast in connection with his Comcast accounts. Comcast also argues
that even if there is an issue about whether the claim is within the scope of the arbitration
agreement, that issue is for the arbitrator to decide, in light of the parties’ agreement that
arbitrable “disputes” include the “scope of this Arbitration Provision.” (Patel Decl., Ex. 1,
Subscriber Agreement, at 16.) In response, Zacher asserts that the telephone calls underlying
this case relate not to the relationship between Zacher and Comcast but rather to the contract
between Alpha Epsilon Pi and Comcast. Zacher also contends that the issue of scope is for this
Court and not the arbitrator to decide, citing Granite Rock Co. v. International Brotherhood of
Teamsters, 561 U.S. 287, 297 (2010) for the proposition that “the court must resolve any issue
that calls into question the formation or applicability of the specific arbitration clause” sought to
be enforced. (Pl.’s Mem. Opp’n Def.’s Mot. at 6 & n.1.)
Courts usually decide “gateway matters,” including whether a binding arbitration clause
applies to a certain type of dispute. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003).
But this general rule does not apply when there is “clear and unmistakable” evidence that the
parties agreed to arbitrate arbitrability. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944
(1995).
An agreement to arbitrate a gateway issue, which is sometimes called a “delegation
provision,” is “simply an additional, antecedent agreement the party seeking arbitration asks the
federal court to enforce, and the FAA operates on this additional arbitration agreement just as it
does on any other.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010). This Court agrees
with courts in this district that have found that language defining an arbitrable “dispute” as
including the “validity, enforceability or scope” of the arbitration agreement clearly
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demonstrates the parties’ intent to delegate these gateway issues to the arbitrator.3 See, e.g.,
Kemph v. Reddam, No. 13 CV 6785, 2015 WL 1510797, at *4 (N.D. Ill. Mar. 27, 2015); Bayer v.
Comcast Cable Commc’ns, LLC, No. 12 CV 8618, 2013 WL 1849519, at *3 (N.D. Ill. May 1,
2013).
Thus, there is clear evidence here that the parties agreed to arbitrate the issue of whether
this dispute is within the scope of their arbitration agreement. Zacher’s citation to Granite Rock
is unavailing because it is taken out of context and fails to acknowledge the qualifier that
immediately follows the quoted statement—“[w]here there is no provision validly committing
[formation or applicability issues] to an arbitrator.” 561 U.S. at 297. It is clear from the Court’s
discussion in Granite Rock that a court must resolve issues of an arbitration clause’s scope
unless the parties have clearly and unmistakably delegated those issues to an arbitrator. Zacher
and Comcast clearly and unmistakably did so. Therefore, the Court will compel arbitration, and
the scope issue can be raised before the arbitrator.
CONCLUSION
Defendant’s motion to compel arbitration [20] is granted. Arbitration shall proceed.
Therefore, this lawsuit is administratively dismissed without prejudice subject to full
reinstatement, if requested by either party, upon completion of the required arbitration. See
Davis v. Fenton, 857 F.3d 961, 962 (7th Cir. 2017). Civil case terminated.
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Zacher does not contend otherwise; in fact, Zacher’s brief does not address the language of
the delegation clause.
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DATE: June 20, 2018
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Ronald A. Guzmán
United States District Judge
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