AT&T Mobility LLC v. Fisher

Filing 51

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/28/11. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AT&T MOBILITY LLC
:
v.

:

Civil Action No. DKC 11-2245

:
LARA FISHER
:
MEMORANDUM OPINION
I.

Background
Lara

filed

a

Fisher,
demand

a

for

customer

of

arbitration

AT&T

Mobility

against

AT&T,

LLC
Inc.

(“ATTM”),
and

ATTM

pursuant to section 16 of the Clayton Act, 15 U.S.C. § 26, to
enjoin ATTM’s proposed acquisition of T-Mobile USA, Inc. from
Deutsche

Telekom.

Ms.

Fisher

asserts

that

the

proposed

acquisition violates section 7 of the Clayton Act, 15 U.S.C. §
18.1

ATTM filed a complaint in this court for declaratory and

injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, and
the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq.,
asserting both federal question and diversity jurisdiction.

It

seeks a declaration that the demand falls outside the scope of
the

Arbitration
1

Agreement,

and

an

injunction

prohibiting

Ms.

Ms. Fisher is among more than a thousand customers,
represented by the same law firm, who have filed similar demands
for arbitration. At the hearing, counsel for ATTM stated that a
new group of demands has been filed, purporting to seek
narrower, and potentially individual, relief under the Clayton
Act.

Fisher from pursuing this or any other representative claim for
collective relief in arbitration.

Ms. Fisher filed a motion to

compel arbitration (ECF No. 22), and ATTM filed a motion for
preliminary injunction (ECF No. 27).
hearing on October 19, 2011.

Both motions came on for

For the following reasons, ATTM’s

motion for preliminary injunction will be granted.
motion to compel arbitration will be denied.

Ms. Fisher’s

The motions for

leave to file amicus curiae memoranda will be granted. (ECF Nos.
25, 26, 31, and 34).
II.

Standards of Review
A.
“A

Preliminary Injunction
preliminary

injunction

is

an

extraordinary

remedy.”

Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d
342, 345 (4th Cir. 2009), vacated on other grounds by 130 S.Ct.
2371 (2010), and reissued in part, 607 F.3d 355 (4th Cir. 2010).
To obtain a preliminary injunction, a plaintiff must establish
four elements:

“[1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
his

favor,

interest.”

and

[4]

that

an

injunction

is

in

the

public

Id. at 346 (quoting Winter v. Natural Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008)).
must be satisfied.

Id.

2

All four requirements

B.

Motion to Compel Arbitration

Under the Federal Arbitration Act, 9 U.S.C. § 4:
A party aggrieved by the alleged failure,
neglect, or refusal of another to arbitrate
under a written agreement for arbitration
may petition any United States district
court which, save for such agreement, would
have jurisdiction under Title 28, in a civil
action or in admiralty of the subject matter
of a suit arising out of the controversy
between the parties, for an order directing
that such arbitration proceed in the manner
provided for in such agreement.
In deciding a motion to compel arbitration, district courts must
“engage

in

a

limited

arbitrable—i.e.,

that

review
a

to

valid

ensure

agreement

that
to

the

dispute

arbitrate

is

exists

between the parties and that the specific dispute falls within
the substantive scope of that agreement.”
v.

Phillips,

173

F.3d

933,

938

(4th

Hooters of Am., Inc.
Cir.

1999)

(internal

quotations and citation omitted).
In the Fourth Circuit, a litigant can compel
arbitration
under
the
FAA
if
he
can
demonstrate “(1) the existence of a dispute
between the parties, (2) a written agreement
that includes an arbitration provision which
purports to cover the dispute, (3) the
relationship of the transaction, which is
evidenced by the agreement, to interstate or
foreign commerce, and (4) the failure,
neglect or refusal of the defendant to
arbitrate
the
dispute.”
Whiteside
v.
th
Cir.
Teltech Corp., 940 F.2d 99, 102 (4
1991).
Adkins v. Labor Ready, Inc., 303 F.3d 496, 500-01 (4th
2002).
3

Cir.

III. Analysis
The parties agree that they entered into an Arbitration
Agreement

as

part

of

their

contractual

relationship.

They

purport to agree that this court has the authority to decide
whether the matter sought to be arbitrated falls within the
“scope” of that Arbitration Agreement.2
that

the

second

agreement

is

It turns out, however,

ephemeral

because

the

parties

differ on what constitutes a “scope” determination.
The
Customer
Dispute

Arbitration
Agreement,
Resolution

termed a summary.3

Agreement
in

By

is

section
Binding

2.

contained
The

in

first

Arbitration,”

the

Wireless

section,

contains

“2.1

what

is

Section 2.2 is titled “Arbitration Agreement”

2

The Arbitration Agreement contains the following sentence
in subsection 2.2(3):
“All issues are for the arbitrator to
decide,
except
that
issues
relating
to
the
scope
and
enforceability of the arbitration provision are for the court to
decide.”
3

The first paragraph of that section reads:
Most customer concerns can be resolved
quickly and to the customer’s satisfaction
by calling our customer service department
at 1-800-331-0500.
In the unlikely event
that AT&T’s customer service department is
unable to resolve a complaint you may have
to your satisfaction (or if AT&T has not
been able to resolve a dispute it has with
you after attempting to do so informally),
we each agree to resolve those disputes
through binding arbitration or small claims
court instead of in courts of general
jurisdiction.
Arbitration is more informal
than a lawsuit in court. Arbitration uses a
4

and it begins in subsection 2.2(1) with the statement that “AT&T
and you agree to arbitrate all disputes and claims between us.”
It also provides that “You agree that, by entering into this
Agreement, you and AT&T are each waiving the right to a trial by
jury or to participate in a class action.”

Subsection 2.2(6)

contains the following:
The arbitrator may award declaratory or
injunctive relief only in favor of the
individual party seeking relief and only to
the extent necessary to provide relief
warranted by that party’s individual claim.
YOU AND AT&T AGREE THAT EACH MAY BRING
CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS
INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF
OR CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING.
Further, unless
both you and AT&T agree otherwise, the
arbitrator may not consolidate more than one
person’s claims, and may not otherwise
preside over any form of a representative or
class
proceeding.
If
this
specific
provision is found to be unenforceable, then
the entirety of this arbitration provision
shall be null and void.

neutral arbitrator instead of a judge or
jury, allows for more limited discovery than
in court, and is subject to very limited
review by courts. Arbitrators can award the
same damages and relief that a court can
award. Any arbitration under this Agreement
will take place on an individual basis;
class arbitrations and class actions are not
permitted. For any non-frivolous claim that
does not exceed $75,000, AT&T will pay all
costs of the arbitration.
Moreover, in
arbitration you are entitled to recover
attorneys’ fees from AT&T to at least the
same extent as you would be in court.
5

Ms. Fisher’s demand for arbitration asserts a violation of
the

Clayton

Antitrust

Act

in

connection

acquisition of T-Mobile USA, Inc.
Fisher

contends

that

the

with

the

proposed

In the 226-page document, Ms.

merger

would

harm

competition

and

consumers, would result in public interest harms including job
loss,

and

she

seeks,

acquisition,

or

The

contends

demand

inter

alia,

alternatively
in

to

enjoin

divestiture

paragraph

of

330

the

proposed

certain

that

the

assets.
proposed

acquisition “will likely substantially lessen competition in the
sale

of

wireless

telecommunications

services

in

the

United

States, in violation of Section 7 of the Clayton Act, 15 U.S.C.
§ 18.”

She asserts in paragraph 332 that “[t]he injury to

Claimant is of the type that the antitrust laws were designed to
prevent and flows from that which makes AT&T’s actions unlawful.
As a result of AT&T’s anticompetitive conduct, Claimant will be
harmed in its business or property in an amount to be proven at
arbitration.”
ATTM contends that the Clayton Act claim brought in the
demand

for

arbitration

Agreement.

exceeds

the

scope

of

the

Arbitration

The essence of the argument is that the arbitration

demand

is

a

relief

well

“representative
beyond

the

proceeding”

limitation

in

and
the

seeks

injunctive

agreement,

namely

“injunctive relief only in favor of the individual party seeking
relief

and

only

to

the

extent
6

necessary

to

provide

relief

warranted
disagrees.

by

that

party’s

individual

claim.”

Ms.

Fisher

She argues that she is only seeking relief as an

individual, and, moreover, the question of whether the relief
sought exceeds that permitted by the agreement (as opposed to
whether the claim is within the scope of the agreement) is a
question for the arbitrator.4
Four

other

courts

have

already

addressed

the

arguments

raised here in written opinions and all have found that the
dispute contained in the arbitration demand does not fall within

4

In this last regard, Ms. Fisher’s argument turns around on
itself.
She asserts that a Clayton Act claim falls within the
broad scope of the Arbitration Agreement and thus ATTM must be
compelled to arbitrate; that the question of whether the relief
she requests runs afoul of the individual relief limitation in
the Arbitration Agreement is for the arbitrator; and that if it
is found that the limitation on relief in the Arbitration
Agreement improperly interferes with her statutory rights under
the Clayton Act, then the limitation on relief is unenforceable.
The problem with this argument is that the Arbitration Agreement
states
that
if
the
limitation
on
relief
provision
is
unenforceable, then the entire agreement to arbitrate is
unenforceable.
As noted before, the Arbitration Agreement
reserves the question of enforceability for the court.
Thus,
this court must determine whether the dispute is within the
scope of the Arbitration Agreement and whether the agreement is
enforceable by looking at the entirety of the agreement, and not
just the small portion delineating the summary of the
Arbitration Agreement.
See, e.g., Kristian v. Comcast Corp.,
446 F.3d 25, 45-46 (1st Cir. 2006) (where conflict between
statutory right and arbitration agreement is clear, question of
whether a waiver is enforceable is for the court, rather than
the arbitrator). Moreover, the question of whether an agreement
encompasses class-based arbitration is generally not considered
merely procedural.
Cent. W. Va. Energy, Inc. v. Bayer
Cropscience LP, 645 F.3d 267, 274-75 (4th Cir. 2011) (discussing
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758
(2010)).
7

the

scope

of

the

preliminary

agreement.5

injunctions,

unnecessary.

No

court

Three

while
has

of

those

one

yet

agreed

with

issued

that

found

courts

course

Ms.

Fisher’s

position.
A.

Likelihood of Success

Parties to an arbitration agreement cannot be required to
arbitrate

a

matter

that

they

have

not

agreed

to

arbitrate.

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002).
In

making

the

determination

whether

a

particular

dispute

is

within the scope of an agreement, a court is to “give effect to
the contractual rights and expectations of the parties.”

Stolt-

Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S.Ct. 1758, 1774
(2010) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland
Stanford Junior Univ., 489 U.S. 468, 479 (1989)).
employs

the

including

the

construed

as

traditional

tools

principle
a

that

whole.

See

of
the

contract
entire

Mastrobuono

Thus, a court
interpretation,

document
v.

must

Shearson

be

Lehman

Hutton, Inc., 514 U.S. 52, 63 (1995).

5

Memorandum and Order Granting Preliminary Injunction, AT&T
Mobility LLC v. Bernardi, Nos. 11-03992, 11-04412 (N.D.Cal. Oct.
26, 2011) (Breyer, J.) (granted a preliminary injunction);
Order, AT&T Mobility LLC v. Smith, No. 11-5157 (E.D.Pa. Oct. 7,
2011) (Davis, J.) (granted a preliminary injunction); AT&T
Mobility LLC v. Gonnello, No. 11-5636, 2011 WL 4716617 (S.D.N.Y.
Oct. 7, 2011) (Castel, J.) (denying the motion to compel
arbitration); Order Granting Motion for Preliminary Injunction,
AT&T Mobility LLC v. Bushman, No. 11-80922 (S.D.Fla. Sept. 23,
2011) (Ryskamp, J.) (granting a preliminary injunction).
8

Here,

the

Arbitration

Agreement

contains

a

number

of

provisions indicating an intent to limit arbitration to those
disputes

between

the

parties

as

individuals,

representatives of the interests of others.
summary states:
place

on

an

not

as

For instance, the

“Any arbitration under this Agreement will take

individual

basis;

actions are not permitted.”
“[t]he

and

arbitrator

may

class

arbitrations

and

class

Later, the agreement provides that

award

declaratory

or

injunctive

relief

only in favor of the individual party seeking relief and only to
the extent necessary to provide relief warranted by that party’s
individual claim.

YOU AND AT&T AGREE THAT EACH MAY BRING CLAIMS

AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND
NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING.”
Plaintiff’s
presents

a

claim

under

representative

the

claim

antitrust
because

the

laws

necessarily

limited

private

right of action is designed to augment enforcement of the public
interest in competition:
We are left, then, with the core of the
American
Safety
doctrine-the
fundamental
importance to American democratic capitalism
of the regime of the antitrust laws.
See,
e.g., United States v. Topco Associates,
Inc., 405 U.S. 596, 610, 92 S.Ct. 1126,
1134,
31
L.Ed.2d
515
(1972);
Northern
Pacific R. Co. v. United States, 356 U.S. 1,
4, 78 S.Ct. 514, 517, 2 L.Ed.2d 545 (1958).
Without doubt, the private cause of action
plays a central role in enforcing this
9

regime.
See, e.g., Hawaii
Co., 405 U.S. 251, 262, 92
31 L.Ed.2d 184 (1972).
States] Court of Appeals
Circuit] pointed out:

v. Standard Oil
S.Ct. 885, 891,
As the [United
[for the First

“‘A claim under the antitrust laws is not
merely a private matter. The Sherman Act is
designed to promote the national interest in
a competitive economy; thus, the plaintiff
asserting his rights under the Act has been
likened to a private attorney-general who
protects the public’s interest.’”
723 F.2d
[155,] 168 (quoting American Safety [Equip.
Corp. v. J. P. Maguire & Co.], 391 F.2d
[821,] 826 [(2d Cir. 1968)]).
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 634-35 (1985).

In order to state a Clayton Act claim

under § 16, a plaintiff must allege a cognizable threatened
injury.
Section 16 of the Clayton Act provides in
part that “[a]ny person, firm, corporation,
or association shall be entitled to sue for
and have injunctive relief . . . against
threatened loss or damage by a violation of
the antitrust laws . . . .” 15 U.S.C. § 26.
It is plain that § 16 and § 4 do differ in
various ways.
For example, § 4 requires a
plaintiff to show actual injury, but § 16
requires a showing only of “threatened” loss
or damage; similarly, § 4 requires a showing
of injury to “business or property,” cf.
Hawaii v. Standard Oil Co., 405 U.S. 251, 92
S.Ct. 885, 31 L.Ed.2d 184 (1972), while § 16
contains no such limitation. Although these
differences do affect the nature of the
injury cognizable under each section, the
lower courts, including the courts below,
have found that under both § 16 and § 4 the
plaintiff must still allege an injury of the
type the antitrust laws were designed to
prevent. We agree.
10

Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 110-111
(1986) (footnotes omitted).
must

assert

competition.

the

interests

Thus, a proper Clayton Act claim
of

the

public

in

fostering

The courts that have already enjoined identical

arbitrations have similarly concluded that, despite the absence
of a label as “representative” or “class action” based, the
claim is not simply “individual.”
concluded

that

the

customer’s

For example, Judge Davis

“arbitration

bears

all

the

hallmarks of ‘class arbitration’ laid out in [AT&T Mobility LLC
v.] Concepcion[, 131 S.Ct. 1740 (2011)].”
Mobility
Those

LLC

courts

v.

Smith,

correctly

No.

11-5157

identified

Order at 12, AT&T

(E.D.Pa.
the

Oct.

basic

7,

nature

2011).
of

the

proceeding as representative.
ATTM, however, actually takes its argument a further step
and claims that, not only did the parties not agree to arbitrate
this dispute, but the customers also waived any right to bring
this type of action anywhere, including in court.

The waiver of

the

contends,

right

to

seek

broad

injunctive

relief,

it

is

permissible because the Department of Justice and the Federal
Trade Commission can pursue those remedies.6

And, it contends in

any event that, if the limitation on arbitration provision in
subsection

2.2(6)

is

found

to

6

be

invalid,

then

the

entire

The Arbitration Agreement does acknowledge that the
customer could bring issues to the attention of government
agencies that could seek relief on behalf of the customers.
11

agreement becomes inoperative and there is no requirement of any
arbitration

(and

instead

Ms.

Clayton Act claim in court).
cause

of

action

Interstate/Johnson

is

Lane

Fisher

could

file

this

broad

ATTM argues that this waiver of a
permissible,

Corp.,

500

citing

U.S.

20,

32

Gilmer

v.

(1991).

In

Gilmer, the Court rejected the argument that the arbitration
agreement should not be enforced because of the potential that
certain class based relief might not be available, noting that
the

EEOC

could

seek

such

relief.

Ms.

Fisher

responds

by

referring to Mitsubishi Motors Corp., 473 U.S. at 637 n.19, for
the proposition that any such limitation on remedy renders the
arbitration provision unconscionable and thus unenforceable.
While it is not necessary at this time to decide whether
ATTM

is

correct

available
limitation
agreement

under
on

in
the

its

assertion

Clayton

Act

relief

contained

unenforceable,

it

in

bears

of

the

and,
the

waiver

if

so,

agreement

noting

that

of

remedies

whether

the

renders

the

the

position

espoused by ATTM misses a significant distinction between an
agreement that waives some procedural mechanism, such as a jury
trial

or

class

action,

available under a statute.

and

a

waiver

of

a

right

otherwise

If, by purportedly waiving the right

to participate in a class or representative action, a litigant
waives the right to a particular remedy under the antitrust acts

12

(or even to bring an antitrust action at all), the clause might
violate public policy and be unenforceable.
We merely note that in the event the choiceof-forum and choice-of-law clauses operated
in tandem as a prospective waiver of a
party’s right to pursue statutory remedies
for antitrust violations, we would have
little
hesitation
in
condemning
the
agreement as against public policy. See,
e.g., Redel’s Inc. v. General Electric Co.,
498 F.2d 95, 98-99 (5th Cir. 1974); Gaines v.
Carrollton Tobacco Board of Trade, Inc., 386
F.2d 757, 759 (6th Cir. 1967); Fox Midwest
Theatres v. Means, 221 F.2d 173, 180 (8th
Cir. 1955); cf. Lawlor v. National Screen
Service Corp., 349 U.S. 322, 329, 75 S.Ct.
865, 869, 99 L.Ed. 1122 (1955).
See
generally 15 [Samuel] Williston, Contracts §
1750A (3d ed. 1972).
Mitsubishi Motors Corp., 473 U.S. at 637 n.19.

Further, as

discussed by the Fourth Circuit in In re Cotton Yarn Antitrust
Litigation:
“By agreeing to arbitrate a statutory claim,
a party does not forgo the substantive
rights afforded by the statute; it only
submits to their resolution in an arbitral,
rather than a judicial, forum.” Mitsubishi,
473 U.S. at 628, 105 S.Ct. 3346.
Thus, we
must
consider
whether
the
contractual
limitations period is inconsistent with any
substantive
rights
conferred
under
the
antitrust laws.
If it is, then the
contractual limitations period would not be
enforceable. See, e.g., Kristian v. Comcast
Corp., 446 F.3d 25, 48 (1st Cir. 2006) (in
case involving arbitration of antitrust
claims,
concluding
that
arbitration
agreement’s
ban
on
treble
damages
was
unenforceable, because right to recover
treble damages is a substantive right);
[Booker v.] Robert Half Int’l[, Inc.], 413
13

F.3d [77,] 83 [(D.C. Cir. 2005)] (concluding
that arbitration agreement’s ban on punitive
damages was not enforceable because civil
rights statute under which the plaintiff was
proceeding provided for punitive damages);
Hadnot v. Bay, Ltd., 344 F.3d 474, 478 &
Cir.
2003)
(concluding
that
n.14
(5th
arbitration agreement’s ban on punitive
damages was not enforceable as to the
plaintiff’s Title VII claim); Morrison [v.
Circuit City Stores, Inc.], 317 F.3d [646,]
673
[(6th
Cir.
2003)]
(concluding
that
arbitration agreement’s restriction on the
damages recoverable was not enforceable
because it was inconsistent with the damages
authorized by Title VII).
In re Cotton Yarn Antitrust Litig., 505 F.3d 274, 288-89 (4th
Cir. 2007).

Thus,

[w]hile statutory claims are arbitrable
unless Congress has specifically provided
otherwise, agreements to arbitrate statutory
claims may nonetheless be unenforceable if
the terms of the agreement prevent the
plaintiff from effectively vindicating his
statutory rights. See Green Tree [Fin.
Corp.-Ala. v. Randolph], 531 U.S. 79, 90,
121 S.Ct. 513 [(2000)]; Mitsubishi, 473 U.S.
at 636-37, 105 S.Ct. 3346.
* * * *
We have explained that the “crucial inquiry”
when considering a claim that an arbitration
agreement
prevents
a
plaintiff
from
vindicating his statutory rights “is whether
the particular claimant has an adequate and
accessible substitute forum in which to
resolve his statutory rights.” Bradford [v.
Rockwell Semiconductor Sys., Inc.], 238 F.3d
[549,] 556 [(4th Cir. 2001)].
Id. at 289-90.

14

In AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011),
the

Court

held

that

the

FAA

preempts

a

state

court

rule

conditioning the enforceability of an arbitration agreement on
the availability of classwide arbitration procedures.

It did

not squarely hold that such waivers can never violate public
policy or, conversely, that they are always valid.

Rather,

[i]n Concepcion, the Supreme Court reviewed
the Ninth Circuit’s decision in Laster v.
AT&T Mobility LLC, 584 F.3d 849 (9th Cir.
2009), cert. granted sub. nom, AT&T Mobility
LLC v. Concepcion, ––– U.S. ––––, 130 S.Ct.
3322, 176 L.Ed.2d 1218 (May 24, 2010), which
had
held
that
a
class
action
waiver
provision in an arbitration agreement was
unenforceable
under
the
test
for
unconscionability set forth in Discover Bank
[v. Superior Court, 113 P.3d 1100 (Cal.
2005)].
The Supreme Court reversed Laster,
and held that the Discover Bank rule was
preempted
because
“[r]equiring
the
availability
of
classwide
arbitration
interferes with fundamental attributes of
arbitration
and
thus
creates
a
scheme
inconsistent with the FAA.” Concepcion, 131
S.Ct. at 1748. In so finding, however, the
Court
specifically
noted
that
the
FAA
“permits agreements to arbitrate to be
invalidated
by
‘generally
applicable
contract defenses, such as fraud, duress, or
unconscionability,’
[although]
not
by
defenses that apply only to arbitration or
that derive their meaning from the fact that
an agreement to arbitrate is at issue.” Id.
at 1746 (quoting Doctor’s Assocs., Inc. v.
Casarotto, 517 U.S. 681, 685, 116 S.Ct.
1652, 134 L.Ed.2d 902 (1996)).
Lewis v. UBS Fin. Servs. Inc., No. C 10-04867 SBA, 2011 WL
4727795, at *5 (N.D.Cal. Sept. 30, 2011).

15

The Eleventh Circuit

has concluded that Concepcion means that arbitration agreements
with class action waivers must be analyzed under the particular
circumstances

of

each

case

and

may

not

considered either unenforceable or acceptable.

categorically

be

Cruz v. Cingular

Wireless, LLC, 648 F.3d 1205, 1214-15 (11th Cir. 2011).
It is enough for today to conclude that ATTM has made a
substantial

showing

that

it

likely

will

succeed

on

the

proposition that Ms. Fisher’s arbitration demand falls outside
the scope of the agreement to arbitrate.
B.

Irreparable Harm and Balance of Equities/Hardships

Ms. Fisher concedes that being forced to arbitrate a claim
one has not agreed to arbitrate constitutes irreparable harm.
(See

ECF

No.

46,

motions

hearing

transcript,

at

21).

She

contends, however, that it is equally true that being prohibited
from

arbitrating

a

claim

similarly irreparable.

one

has

agreed

to

arbitrate

is

She concludes, then, that the balance of

hardship is in equipoise.
ATTM seeks, at this time, a preliminary injunction, and is
not pressing for a permanent injunction.

Thus, a temporary

delay

potentially

in

arbitration

inflicted on Ms. Fisher.

is

the

only

harm

being

On the other hand, if the arbitration

goes forward, ATTM will forever lose its right not to arbitrate
this

claim.

ongoing

at

Moreover,
this

time,

with

the

devoting
16

other
any

proceedings

more

resources

that

are

to

the

arbitrations harms ATTM in its ability to participate in the
larger proceedings.
C.

Public Interest

The

public

preliminary

interest

injunction.

weighs
The

in

ongoing

favor

of

issuing

proceedings

are

a
the

preferable forum for exploring the interests of all affected
parties.
IV.

Conclusion
For the foregoing reasons, the motion for a preliminary

injunction will be granted.
not

established

either

On the other hand, Ms. Fisher has

that

there

is

a

fully

enforceable

agreement to arbitrate or that this dispute falls within its
scope, and her motion to compel arbitration will be denied.
separate order will be entered.

/s/
DEBORAH K. CHASANOW
United States District Judge

17

A