NOONAN et al v. COMCAST CORPORATION et al

Filing 48

MEMORANDUM AND ORDER that Defendant's 31 Motion to Compel Arbitration and Stay Litigation is granted. This case is dismissed without prejudice. Signed by Judge Peter G. Sheridan on 10/23/2017. (mps)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JUDITH NOONAN, at al.

Civil Action No. 3:16-cv-00458 (PGS)

Plaintiffs,

MEMORANDUM AND ORDER

v.
COMCAST CORP.
Defendant.

SHERIDAN, U.S.D.J.
This matter comes before the Court on Defendant's Renewed Motion to Compel Arbitration
and Stay Litigation. (ECF No. 31).
Factual & Procedural Background
On December 8, 2015, Plaintiffs initiated this class action in Superior Court, Ocean
County. On January 27, 2016, Defendant removed the matter to this Court pursuant to the Class
Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332 et seq. (ECF No. 1, Notice of Removal).
Plaintiffs allege: (1) declaratory relief; (2) violations of the Plain Language Act, N.J.S.A. §56:121 et seq.; (3) violations of the Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq.; (4) breach of
contract; (5) bad faith; and (6) prima facie tort, arising out of Comcast’s allegedly arbitrary pricing,

deficient telephone, television, and computer services, deficient equipment, and abandoned
equipment and advertising material. (ECF No. 1, Compl.).
Plaintiffs allege that Defendant arbitrarily priced its equipment and services, provided
deficient services and equipment, left promotional literature on door knobs, abandoned equipment,
used confusing contractual and promotional language, and provided deficient customer service.
(Id. ¶¶ 17-24).
Defendant seeks to compel arbitration and stay litigation.

Defendant contends that

Plaintiffs are bound by an arbitration agreement in their Comcast Agreement for Residential
Services (the “Subscriber Agreement”). Comcast provided copies of the Subscriber Agreement to
Plaintiffs as an insert in a monthly billing statement and as part of a welcome kit when services
were installed. (See Def.'s Br. 4; ECF No. 18).
For the purposes of this motion, the parties have submitted a Stipulation as to which
versions of the Subscriber Agreements were in place at the time the Plaintiff received services.1
(See Stip. 1-2; ECF No. 23-1). The stipulation is significant because the language of the current
Subscriber Agreement available on Defendant's website differs from those in dispute. (See Pl.'s
Br. 4-5; ECF No. 36). In particular, the Defendant revised Section 13 which contains the
arbitration provision. (See Def.'s Br. at Exhibit "A"; ECF No. 18-2).
All three Subscriber Agreements in dispute have nearly identical arbitration provisions
made up of 11 paragraphs a-k, are approximately thirty pages, over 3,000 words, and single spaced
with no table of contents. (ECF No. 23-1) (See Def.'s Br. 6; Opp. Br. 10). The sections in the

1

Plaintiffs' Subscriber Agreements are exhibits to the Supplemental Declaration of Claudia
Salcedo. (ECF No. 23-1). Exhibit B is relevant to Plaintiffs Noonan and Stella Cristiano received
in 2008, Exhibit C is relevant to Plaintiff Reinhard received in 2011, and Exhibit D is relevant to
Plaintiff McGuinness received in 2012. (See Stip. ECF No. 23-1).
2

arbitration provision are as follows: a. Purpose; b. Definitions; c. Right to Opt Out; d. Initiation of
Arbitration Proceeding/Selection of Arbitrator; e. Arbitration Procedures; f. Restrictions; g.
Location of Arbitration; h. Payment of Arbitration Fees and Costs; i. Severability; j. Exclusions
from Arbitration; k. Continuation. (See Exhibit "B"; ECF No. 23-1 at 44-47.) The 2008 agreement
has no page numbers while the 2011 and 2012 agreements have page numbers and a separate notice
on customer privacy. The following memorandum refers to all three agreements, starting with Ex.
B, the 2008 Agreement, and citing to the corresponding page numbers for Exhibits C and D when
the language used is identical.2 Any minor language differences present in relevant sections of the
disputed versions of the agreements are quoted accordingly.
On the first page of the 2008 Subscriber Agreement located three-quarters of the way down,
in bold type (surrounded by other bold type) is the following language:
Note: This Agreement contains a binding arbitration provision
in Section 13 that affects your rights under this Agreement with
respect to all Services.
(ECF 23-1 Ex. B at 28; Ex. C at 69; Ex. D at 102). Section 13 is roughly three-and-a-half pages,
the first section listed is the “Purpose”:
13. BINDING ARBITRATION
a. Purpose. If you have a Dispute (as defined below) with
Comcast that cannot be resolved through the informal dispute
resolution process described in this Agreement, 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.
(ECF 23-1 Ex. B 43-44). The language of this section in the 2011 agreement states as follows:

2

The minor language differences in the agreements do not affect the general analysis, however,
in the interest of comprehensiveness we include all different versions.
3

13. BINDING ARBITRATION
a. Purpose. If you have a Dispute (as defined below) with Comcast
that cannot be resolved through the 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.
(ECF 23-1 Ex. C at 80). The language of this section in the 2012 agreements states:
13. BINDING ARBITRATION
a. Purpose. If you have a Dispute (as defined below) with Comcast
that cannot be resolved through the 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.
(ECF 23-1 Ex. D at 115.) Plaintiff points to the permissive language in the above section and
contends that a customer unacquainted with the law would not deduce that the provision is a waiver
of the right to access the court system (See Pl.'s Br. 2).
Plaintiff compares the 2008 agreement to the current version on Defendant's website with
a strengthened introductory note, underlined and capitalized, in addition to bold:
Note: THIS AGREEMENT CONTAINS A BINDING
ARBITRATION PROVISION IN SECTION 13 THAT
AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT
WITH RESPECT TO ALL SERVICE(S). These terms and
conditions are subject to applicable tariffs and service guides.
(See Def.'s Br. at Exhibit "A"; ECF No. 18-2). Section 13 has also been changed in Defendant's
current version with more succinct and forceful language:
13. BINDING ARBITRATION
a. Purpose. Any Dispute involving you and Comcast shall be
resolved through individual arbitration. In arbitration, there is no

4

judge or jury and there is less discovery and appellate review
than in court.
(See Def.'s Br. at Exhibit "A"; ECF No. 18-2).
The disputed agreements continue with the "b. Definitions" and "c. Right to Opt Out"
paragraphs. Of note is what the Supreme Court has called a delegation clause, Rent-A-Center,
West, Inc. v. Jackson, 561 U.S. 63, 68-69 (2010), which arguably exists in the "b. Definitions"
paragraph, stating that any dispute will go to an arbitrator and that "includes the validity,
enforceability or scope of this Arbitration Provision." The Defendant notes that the "c. Right to
Opt Out" paragraph is a clear signal that arbitration is binding. (See Def.'s Br. 4).
b. Definitions. As used in this Arbitration Provision, the term
"Dispute" means any dispute, claim or controversy between you
and Comcast regarding any aspect of your relationship with
Comcast that has accrued or may hereafter accrue, 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 (with the
exception of the enforceability of the class action waiver clause
provided in paragraph F(2)). "Dispute is to be given the broadest
possible meaning that will be enforced. As used in this
Provision, "Comcast" means Comcast Cable Communications,
LLC., its officers, directors, employees and agents, and all
entities using the brand name "Comcast", including your local
cable company, its employees, authorized agents, and its
parents, subsidiaries and affiliated companies. As used in this
Provision, the term "Arbitration Provision" means all the terms
of this Section 13.
c. Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND
BY THIS ARBITRATION PROVISION, YOU MUST
NOTIFY COMCAST IN WRITING WITHIN 30 DAYS OF
THE DATE THAT YOU FIRST RECEIVE THIS
AGREEMENT
BY
VISITING
WWW.COMCAST.COM/ARBITRATIONOPTOUT, OR BY
MAIL
TO
DEPARTMENT/ARBITRATION.
YOUR
WRITTEN NOTIFICATION TO COMCAST MUST
INCLUDE YOUR NAME, ADDRESS AND COMCAST
ACCOUNT NUMBER AS WELL AS A CLEAR

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STATEMENT THAT YOU DO NOT WISH TO RESOLVE
DISPUTES WITH COMCAST THROUGH ARBITRATION.
YOUR DECISION TO OPT OUT OF THIS ARBITRATION
PROVISION WILL HAVE NO ADVERSE EFFECT ON
YOUR RELATIONSHIP WITH COMCAST OR DELIVERY
OF SERVICES TO YOU BY COMCAST. IF YOU HAVE
PREVIOUSLY NOTIFIED COMCAST OF YOUR DECISION
TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO
DO SO AGAIN.
(See Exhibit "B"; ECF No. 23-1 at 43-44). The 2011 and 2012 versions of the agreement
mentions the same with slight variation in wording:
b. Definitions. 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 Arbitration Provision (with the
exception of the enforceability of the class action waiver clause
provided in paragraph 13(f)(2)). “Dispute” is to be given the
broadest possible meaning that will be enforced. As used in this
Arbitration Provision, “Comcast” means Comcast and its
parents, subsidiaries and affiliated companies and each of their
respective officers, directors, employees and agents.
c. Right to Opt Out. IF YOU DO NOT WISH TO BE
BOUND BY THIS ARBITRATION IF YOU DO NOT WISH
TO BE BOUND BY THIS ARBITRATION
PROVISION, YOU MUST NOTIFY COMCAST IN WRITING
WITHIN 30 DAYS OF THE DATE THAT YOU FIRST
RECEIVE
THIS
AGREEMENT
BY
VISITING
WWW.COMCAST.COM/ARBITRATIONOPTOUT, OR BY
MAIL TO COMCAST 1701 JOHN F. KENNEDY BLVD.,
PHILADELPHIA, PA 19103-2838, ATTN: LEGAL
DEPARTMENT/ARBITRATION.
YOUR
WRITTEN
NOTIFICATION TO COMCAST MUST INCLUDE YOUR
NAME, ADDRESS AND COMCAST ACCOUNT NUMBER
AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT
WISH TO RESOLVE DISPUTES WITH COMCAST
THROUGH ARBITRATION. YOUR DECISION TO OPT
OUT OF THIS ARBITRATION PROVISION WILL HAVE NO
ADVERSE EFFECT ON YOUR RELATIONSHIP WITH
COMCAST OR THE DELIVERY OF SERVICES TO YOU BY
COMCAST. IF YOU HAVE PREVIOUSLY NOTIFIED

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COMCAST OF YOUR DECISION TO OPT OUT OF
ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
(See ECF No. 23-1 Ex. C at 80; Ex. D at 116).
Paragraph "f. Restrictions," point 2, Defendant bars class actions in arbitration or
litigation:
ALL PARTIES TO THE ARBITRATION MUST BE
INDIVIDUALLY NAMED. 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
SIMILARLY SITUATED UNLESS THE STATUTE UNDER
WHICH YOU ARE SUING PROVIDES OTHERWISE
In the 2008 and 2011 version the paragraph also states in point 3 that "ALL PARTIES WAIVE
ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR
MULTIPLIED DAMAGES. (Id. at 45; Id. at 81.) The 2012 version states:
ALL PARTIES TO THE ARBITRATION MUST BE
INDIVIDUALLY NAMED. 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.
In point 3 of the same paragraph, Defendant bars class actions in arbitration or litigation: "ALL
PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED." The paragraph
also states that "ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL,
PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES . . . ." (Id. at 45; Id. at 81). The
2012 version does not include point 3. (Id. at 117).

7

In paragraph "j. Exclusion from Arbitration," Defendant allows for individual small
claims to be brought that are "NOT AGGREGATED WITH THE CLAIM OF ANY OTHER
SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE
JURISIDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL
CLAIMS." (Id. at 46-47; Id. at 82; Id. at 117.)
The arbitration provision further provides for a convenient location, and a single neutral
arbitrator with either party able to appeal a decision to a three-arbitrator panel. The provision also
contains a severability clause. Defendant advances all fees and arbitration costs, but a customer
must pay if he or she loses. (Id. at 45-47; Id. at 81-82; Id. at 117).
Legal Standard
Motions to compel arbitration should be analyzed under a Rule 12(b)(6) standard when
arbitrability is apparent on the face of the complaint and/or documents relied upon in the complaint.
Guidotti v. Legal Helpers Debt Resolution, LLC, 639 F. App'x 824, 826-27 (3d Cir. 2016) (Guidotti
II). Where the complaint does not establish with clarity that the parties have agreed to arbitrate, or
when the party opposing arbitration has come forward with reliable evidence that it did not intend
to be bound by an arbitration agreement, a Rule 12(b)(6) standard is not appropriate because the
motion cannot be resolved without consideration of evidence outside the pleadings, and, if
necessary, further development of the factual record. Id. In such circumstances, the motion should
be adjudicated under the Rule 56 standard for summary judgment. Id. at 827.
Beyond the parties' regarding the Subscriber Agreements in place at the time of the dispute,
this motion presents no need to explore factual issues beyond the Complaint and the Exhibits
attached. This Motion can be resolved without further development of the factual record, and thus
the Court will apply the Rule 12(b)(6) standard of analysis to this Motion. To meet that standard,

8

the Defendant must show, through the facts alleged, that it is entitled to the relief sought. Fowler
v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
On a motion to compel arbitration, the Court must inquire: (1) whether the parties entered
into a valid arbitration agreement; and (2) whether the dispute at issue falls within the scope of the
arbitration agreement. Century Indem. Co. v. Certain Underwriters at Lloyd's, 584 F.3d 513, 523
(3d Cir. 2009). When performing this inquiry, courts apply “ordinary state-law principles that
govern the formation of contracts,” Kirleis v. Dickie, McCamey & Chilcote, 560 F.3d 156, 160 (3d
Cir. 2009) (quotations and citations omitted), and, “when determining whether [a] particular
dispute falls within a valid arbitration agreement's scope, ‘there is a presumption of arbitrability[:]
an order to arbitrate the particular grievance should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.’ ” Century Indem. Co, 584 F.3d at 524 (quoting AT&T Techs. v. Communs.
Workers of Am., 475 U.S. 643, 650, 106 S. Ct. 1415, 89 L.Ed. 2d 648 (1986)).
The purpose of the Federal Arbitration Act (“FAA”) is “to reverse the longstanding judicial
hostility to arbitration agreements that had existed at English common law and had been adopted
by American courts, and to place arbitration agreements upon the same footing as other contracts.”
Beery v. Quest Diagnostics, 953 F.Supp.2d 531, 536-37 (D.N.J. 2013) (internal quotation and
citation omitted). In order to achieve this end, the FAA provides that contracts containing
arbitration clauses “shall be binding” and allows for a federal court to stay proceedings in any
matter referable to arbitration. 9 U.S.C. §§ 2, 3, 4. Moreover, “any doubts concerning the scope
of arbitrable issues should be resolved in favor of arbitration.” Beery, supra, 953 F.Supp.2d at
537. The Supreme Court confirmed that the FAA preempts state laws "that apply only to arbitration

9

or that derive their meaning from the fact that an agreement to arbitrate is at issue." AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 339 (2011).
The Supreme Court has established two types of challenges to the validity of an arbitration
provision pursuant to the "save upon" clause in § 2 of the FAA. Rent-A-Center, West, Inc. v.
Jackson, 561 U.S. 63, 70 (2010). “One type challenges specifically the validity of the agreement
to arbitrate,” and “[t]he other challenges the contract as a whole, either on a ground that directly
affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that
the illegality of one of the contract's provisions renders the whole contract invalid.” Buckeye Check
Cashing, Inc., v. Cardegna, 546 U.S. 440, 444 (2006). The Supreme Court has held that only first
type of challenge can be successful in stripping an arbitration provision of its enforceability.
See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403–404 (1967); Buckeye,
supra, at 444–446; Preston v. Ferrer, 552 U.S. 346, 353–354, (2008). If the contract is attacked
as a whole, it must go to an arbitrator. Preston, supra at 353.
First, the Court must determine if the Subscription Agreement is in fact a valid agreement
to arbitrate disputes between Defendant and Plaintiffs. When performing an inquiry into a motion
to compel arbitration, the court applies “ordinary state-law principles that govern the formation of
contracts.” Kirleis v. Dickie, McCamey & Chilcote, 560 F.3d 156, 160 (3d Cir. 2009). Contracts
in New Jersey are enforceable where there is “a bargained for exchange of promises or
performance that may consist of an act, a forbearance, or the creation, modification, or destruction
of a legal relation.” Martindale v. Sandvik, 173 N.J. 76, 88 (2002).
The Supreme Court of New Jersey held that an arbitration provision in a consumer contract
must state in a clear and unambiguous way that arbitration is a substitute for a consumer's right to
pursue relief in a court of law. Atalese v. U.S. Legal Servs. Grp., 99 A.3d 306, 316 (2014), cert.

10

denied, 135 S. Ct. 2804 (2015). In so holding, the court imposed no greater burden on an
"arbitration agreement than on any other agreement waiving constitutional or statutory rights." Id.
New Jersey contract law demands that any "wavier-of-rights provision must reflect that [the party]
has agreed clearly and unambiguously" to its terms. Leodori v. CIGNA Corp., 175 N.J. 293, 302
(2003), cert. denied, 540 U.S. 938 (2003); see, e.g., Dixon v. Rutgers, the State Univ. of
N.J., 110 N.J. 432, 460–61 (1988) (holding that collective bargaining agreement cannot deprive
one of statutory rights to evidentiary materials in anti-discrimination case because “[u]nder New
Jersey law[,] for a waiver of rights to be effective it must be plainly expressed”); Red Bank Reg'l
Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ., 78 N.J. 122, 140 (1978) (explaining, in
public-employment labor-relations context, that any waiver of statutory right to file grievances
“must be clearly and unmistakably established”).
ARGUMENTS
Comcast seeks to compel this dispute to arbitration because Plaintiffs knowingly and
voluntarily agreed to arbitration. (See Def.'s Suppl. Br. 6). Defendant argues that their arbitration
clause passes muster under the Atalese standard and, even if it did not, that Atalese should not be
followed because the decision is "flawed as a matter of common law and preempted as a matter of
federal law." (Id. at 8).
Pointing to Atalese, Defendant notes that "no particular form of words is necessary" for an
arbitration clause to be enforceable so long as the clause explains "that arbitration is a waiver of
the right to bring suit in a judicial forum." (Id. at 6) (quoting Atalese, 99 A.3d at 313-314).
Defendant finds its agreement distinguishable from the one in Atalese because Defendant's
agreement states that disputes will be resolved in arbitration and that arbitration is well defined.
(Id. at 8). The Subscriber Agreement defines arbitration under a bold heading "13. BINDING

11

ARBITRATION," and states at the end of the paragraph, "Arbitration means you will have a fair
hearing before a neutral arbitrator instead of in a court by a judge or jury." (See ECF No. 23-1 at
43-44, Id. at 80; Id. at 115).
The arbitration provision also contains "c. Right to Opt Out. IF YOU DO NOT WISH TO
ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH
COMCAST ARBITRATED BY NOTIFYING COMCAST IN WRITING, WITHIN 30 DAYS. .
. ." (Def.'s Br. 4). The paragraph furthers that a decision to opt out will have no adverse effect on
the customer's relationship with the company. Defendant contends that the aforementioned clauses
put Plaintiffs on notice as to the definition of arbitration and that the arbitration is a substitute for
a right to bring suit in court.
Defendant further argues that Atalese should not be followed. (Def.'s Suppl. Br. 8). The
Third Circuit reversed a trial court decision that denied a motion to compel arbitration because the
plaintiff could not read English. Morales v. Sun Constructors, Inc., 541 F.3d 218 (3d Cir. 2008).
Defendant urges this Court to apply the same logic to the current Plaintiffs who did not understand
the word "arbitration." (Def.'s Suppl. Br. 8).
Defendant also cites the FAA and claims that Plaintiffs are asking this Court to apply a
heightened standard of enforceability to arbitration agreements. Indeed, Defendant claims that the
Supreme Court of New Jersey erred in Atalese because the decision applies a heightened standard
to arbitration agreements over other areas of contract law, which the Supreme Court of the United
States has ruled against. Concepcion, 563 U.S. at 339.
Plaintiffs argue that the Defendant's arbitration clause fails to explain that arbitration is a
substitute for the time-honored right to sue in court and, therefore, no valid agreement to arbitrate
exists. (See Pl.'s Suppl. Br. 6). Plaintiffs claim the arbitration clause does not satisfy the "clear and

12

unambiguous" standard put forth in Atalese and Leodori for waiving access to the court system.
The clause appears to give the customer an option to elect an arbitrator instead of suing in court,
but does not make clear that it is a waiver of a constitutional right.
Plaintiffs emphasize the permissive language in the clause and the use of the word "may."
(See Pl.'s Suppl. Br. 2). The opening clause states "you or Comcast may elect to arbitrate [a]
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." Plaintiffs perceive this provision to be written as a choice and that a
reasonable consumer, unaware of the difference between alternative dispute resolution and
litigation, would not understand the repercussions of such an agreement. (Id. at 2).
Plaintiffs compare this clause with Comcast's current provision available on its website:
"Any Dispute involving you and Comcast shall be resolved through individual arbitration. In
arbitration, there is no judge or jury and there is less discovery and appellate review than in court."
Plaintiffs argue that the current company provision is clear in describing that arbitration is a
binding substitute for a right to sue in court, as opposed to the provisions in dispute. (Id. at 5).
Plaintiffs also compare Defendant's arbitration clause with the one found to be
unenforceable by the Supreme Court of New Jersey in Atalese and find the two clauses similar.
Both provisions are found in consumer contracts over twenty pages in length. In Atalese, the
arbitration clause is part of a legal services contract for debt-adjustment, and reads, "In the event
of any claim or dispute between Client and USLSG related to this Agreement or related to any
performance of any services related to this Agreement, the claim or dispute shall be submitted to
binding arbitration upon the request of either party." The Atalese clause does not describe what
arbitration means. (Id. at 7). "The meaning of arbitration is not self-evident to the average

13

consumer, who will not know, 'without some explanatory comment[,] that arbitration is a substitute
for the right to have one's claim adjudicated in a court of law.'" Morgan v. Sanford Brown Inst.,
137 A.3d 1168, 1180 (2016) (quoting Atalese 99 A.3d at 442).
Further, Plaintiffs point out the confusing nature of the small claims language. (See Pl.'s
Br. 6; ECF No. 22). In paragraph "j. Exclusions from Arbitration," which allows for an
individual claim "NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER
AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISIDICTION
OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS."3 (See ECF No.
23-1 at 43-44). Plaintiffs argue this exclusion serves to further confuse the consumer. (Tr. of Oral
Arg. 7). By granting a claim in a certain court and excluding it from others, Defendant expects a
reasonable consumer to understand the structure of small claims courts and regular courts,
jurisdiction, exclusion, and arbitration, all at the time of attempting to complete a contract for
wireless internet. (See Pl.'s Br. 6-7; ECF No. 22).
Analysis
The Court finds the Plaintiffs' arguments unpersuasive. Plaintiffs do not deny that all the
agreements were agreed to, and those agreements all contain valid arbitration provisions. Under
Atalese, a contract must make clear that a consumer is waiving his or her constitutional right to
sue in court when agreeing to arbitration. When read by a reasonable person, the arbitration
provision is clear and unambiguous in its waiver of rights. The provision satisfies the Atalese
requirement in defining what arbitration means, and goes on to describe the process in detail. The

3

The 2011 and 2012 version include a slight wording variation that does not affect the overall
meaning of the sentence. “NOT AGGREGATED WITH THE CLAIM OF ANY OTHER
SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE
JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS”
(ECF No. 23-1 at 82; Id. at 117.)
14

agreement's description includes eleven explanatory paragraphs. The court in Atalese
acknowledges that "[n]o particular form of words is necessary to accomplish a clear and
unambiguous waiver of rights." 99 A.3d at 444.
The Court does not elect to disregard Atalese as Defendant argues. Those concerns have
been duly addressed in the case law. Atalese has been cited by the Third Circuit a number of times.
Aliments Krispy Kernels, Inc. v. Nichols Farms, 851 F.3d 283 (3d Cir. 2017); James v. Global
TelLink Corp., 852 F.3d 262 (3d Cir. 2017); Noble v. Samsung Elecs. Am., Inc., No. 16-1903, 2017
WL 838269, at *1 (3d Cir. Mar. 3 2017); Guidotti v. Legal Helpers Debt Resolution, LLC, 639 F.
App'x 824 (3d Cir. 2016). Rather, the Court finds that the arbitration provision satisfies the clear
and unambiguous standard for a waiver of rights.
When comparing Defendant's provision with the one in Atalese, the Court finds that
Defendant's provision is distinguishable. The provision in Atalese is only one paragraph, and never
defines arbitration. Here, the provision adequately defines arbitration: "Arbitration means you will
have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury." (See ECF
No. 23-1 at 43-44; Id. at 80; Id. at 115). The provision begins with the subheading "BINDING
ARBITRATION." After two introductory paragraphs, the "c. Right to Opt Out" paragraph
provides for a reasonable avenue to decline arbitration as a form of dispute resolution. Plaintiffs
do not dispute that they chose not to opt out. The provision is made of the following paragraphs
detailing the terms of arbitration: a. Purpose; b. Definitions; c. Right to Opt Out; d. Initiation of
Arbitration Proceeding/Selection of Arbitrator; e. Arbitration Procedures; f. Restrictions; g.
Location of Arbitration; h. Payment of Arbitration Fees and Costs; i. Severability; j. Exclusions
from Arbitration; k. Continuation. The actions of the parties and the provision as a whole, makes
clear that the parties agreed to arbitrate.

15

Next, the Court inquires whether this dispute falls within the scope of the arbitration
agreement. Plaintiffs do not make specific arguments as to the scope of the provision being
insufficient to cover their claims against the Defendant. Under "b. Definitions," the provision
provides that
any dispute, claim or controversy between you and Comcast regarding any aspect
of your relationship with Comcast that has accrued or may hereafter accrue,
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. . . . Dispute is to be given
the broadest possible meaning that will be enforced.
(See ECF No. 23-1 at 43-44; Id. at 80; Id. at 116). Plaintiffs' claims for breach of contract, bad
faith and other tort claims fall under dispute as defined in the arbitration provision.
Conclusion
For the foregoing reasons, Defendant's Motion to Compel Arbitration and Stay Litigation
is granted.
ORDER
This matter having come before the Court on Defendant’s renewed motion to Compel
Arbitration and Stay Litigation (ECF No. 31); and the Court having fully considered the
submissions of the parties;
It is on this 23rd day of October, 2017;
ORDERED that Defendant’s motion to Compel Arbitration and Stay Litigation is granted;
and it is further
ORDERED that this case is dismissed without prejudice.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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