Frashuer v. Altice USA, Inc.

Filing 32

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO COMPEL ARBITRATION 6 . Signed by Chief District Judge Thomas S Kleeh on 1/17/23. (jss)

Case 2:21-cv-00017-TSK Document 32 Filed 01/17/23 Page 1 of 7 PageID #: 291

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ED FRASHUER, individually
and on behalf of a class of
similarly situated persons,
Plaintiff,
v.

CIVIL NO. 2:21-CV-17
(KLEEH)

ALTICE USA, INC., d/b/a/
Suddenlink Communications,
Defendant.

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO COMPEL ARBITRATION [ECF NO. 6]
Pending before the Court is Defendant’s motion to compel
arbitration [ECF No. 6].

For the reasons discussed herein, the

motion is GRANTED.
I.
Plaintiff
against

Ed

Defendant

Frashuer
Altice

“Suddenlink” (“Defendant”).

BACKGROUND
(“Plaintiff”)
USA,

Inc.,

brought

who

does

this

action

business

as

Plaintiff, who states that he does

not have Internet access and subscribes only to Defendant’s cable
television and telephone services, asserts that Defendant has
improperly and unlawfully charged consumers a $1.00 per month
collection fee if they choose to receive paper billing statements
instead of electronic statements.

Plaintiff claims that Defendant

has violated numerous provisions of the West Virginia Consumer

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FRASHUER V. ALTICE

2:21-CV-17

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO COMPEL ARBITRATION [ECF NO. 6]
Credit and Protection Act.
After the Complaint was filed, Defendant filed a motion to
compel individual, non-class arbitration [ECF No. 6] and then, in
the alternative, a motion to dismiss [ECF No. 8].

Both are fully

briefed and ripe for review. In addition, Defendant filed a motion
to stay discovery pending ruling on the motions.
briefed and ripe for review.

It is also fully

Plaintiff also filed two notices of

supplemental authority [ECF Nos. 30, 31].
II.
Defendant

argues

that

DISCUSSION
this

case

must

be

submitted

to

arbitration because Plaintiff is party to a Residential Services
Agreement (the “Agreement”) containing an arbitration provision.
In response, Plaintiff argues that there is no evidence that he
agreed to arbitration.

The Court disagrees with Plaintiff and

discusses herein.
In the Fourth Circuit,
a litigant can compel arbitration under the
[Federal
Arbitration
Act]
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. Teltech Corp., 940
F.2d 99, 102 (4th Cir. 1991).
2

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FRASHUER V. ALTICE

2:21-CV-17

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO COMPEL ARBITRATION [ECF NO. 6]
Adkins v. Lab. Ready, Inc., 303 F.3d 496, 500–01 (4th Cir. 2002).
The first factor is satisfied here because there is a dispute
between the parties, as evidenced by Plaintiff’s Complaint.

See

May v. Nationstar Mortg., LLC, No. 3:12-CV-43, 2012 WL 3028467, at
*8 (N.D.W. Va. July 25, 2012).

The third factor is also satisfied

because Plaintiff alleges that he is a citizen of West Virginia
and that Defendant is a company based in New York, providing
broadband communications and video services to customers in 21
states.

See Compl., ECF No. 1, at ¶ 5.

Finally, the fourth factor

is satisfied because Plaintiff has refused to arbitrate, which,
again, is evidenced by the filing of this lawsuit.
WL 3028467, at *8.

See May, 2012

At issue is the second factor: the validity of

the written agreement that includes an arbitration provision which
purports to cover the dispute.
Plaintiff’s monthly billing statements explicitly provide,
“Payment of your bill confirms your acceptance of the Residential
Services

Agreement,

viewable

at

suddenlink.com/terms-policy.”

Felician Decl., ECF No. 6-2, at ¶ 3. Once on the website, customers
may

view

the

Agreement

by

clicking

on

“Residential

Services

Agreement,” which is the first link near the top of the website
under “General Terms of Service.”

Id. ¶ 6.

The Agreement includes the following:
Binding Arbitration. Please read this section
3

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2:21-CV-17

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO COMPEL ARBITRATION [ECF NO. 6]
carefully. It affects your rights.
Any and all disputes arising between You and
Suddenlink, including its respective parents,
subsidiaries,
affiliates,
officers,
directors, employees, agents, predecessors,
and successors, shall be resolved by binding
arbitration
on
an
individual
basis
in
accordance with this arbitration provision.
This agreement to arbitrate is intended to be
broadly interpreted. It includes, but is not
limited to:

Id. ¶ 5.



Claims arising out of or relating to any
aspect of the relationship between us,
whether based in contract, tort, statute,
fraud, misrepresentation or any other
legal theory;



Claims that arose before this or any
prior Agreement,



Claims
that
may
arise
after
termination of this Agreement.

the

The arbitration provision further provides,
g. Waiver of Class and Representative Actions.
YOU AGREE TO ARBITRATE YOUR DISPUTE AND TO DO
SO
ON
AN
INDIVIDUAL
BASIS;
CLASS,
REPRESENTATIVE, AND PRIVATE ATTORNEY GENERAL
ARBITRATIONS AND ACTIONS ARE NOT PERMITTED.
You and Suddenlink agree that each party may
bring claims against the other only in Your or
its
individual
capacity
and
may
not
participate as a class member or serve as a
named plaintiff in any purported class,
representative, or private attorney general
proceeding.

Id.

Plaintiff

never

opted

repeatedly paid his bills.

out

of

these

Id. ¶¶ 7, 8.

4

provisions

and

he

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2:21-CV-17

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO COMPEL ARBITRATION [ECF NO. 6]
The arbitration provision in the Agreement clearly covers the
instant dispute, as it applies to “[a]ny and all disputes arising
between [Plaintiff] and Suddenlink . . . .”

Id. ¶ 3.

Further,

the elements of a contract under West Virginia law are satisfied
here with respect to the Agreement itself.1

“In West Virginia,

the fundamental elements of a legal contract are an offer and
acceptance supported by consideration.”
13-1101,

2014

WL

2681091,

at

*2

Toney v. EQT Corp., No.

(W.

Va.

June

13,

2014)

(unpublished) (citing Syl. Pt. 1, First Nat’l Bank of Gallipolis
v. Marietta Mfg. Co., 153 S.E.2d 172 (W. Va. 1967)).
The Supreme Court of Appeals of West Virginia has found that
an offer and acceptance can be established through terms and
conditions referenced in a billing statement and made available on
a website.
S.E.2d

144,

See Citizens Telecomm. Co. of W. Va. v. Sheridan, 799
147

(W.

Va.

2017).

The

court

found

that

the

telecommunications company defendant “presented its Terms and
Conditions

as

a

condition

of

providing

Internet

service

to

customers, and [the] customers accepted those Terms and Conditions
by using and paying for that Internet service, forming a unilateral
contract.”

Id. at 150.

The same offer and acceptance took place

here: Defendant offered its terms and conditions through its

1

In assessing whether a valid contract exists, both parties have applied West
Virginia law.

5

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2:21-CV-17

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO COMPEL ARBITRATION [ECF NO. 6]
billing

statement

and

corresponding

website,

and

Plaintiff

accepted Defendant’s terms and conditions by continuing to use and
pay

for

Defendant’s

services.

Consideration

exists

because

Plaintiff agreed to pay money in exchange for Defendant’s services.
For these reasons, the Agreement is a valid, enforceable contract.
Defendant has satisfied the second factor under Adkins.2
Plaintiff argues that Defendant “first attempted to modify
the terms of service to include an arbitration agreement after Mr.
Frashuer paid his October 2019 bill.”

Response, ECF No. 11, at 5.

The assertion that the arbitration clause was a modification,
however, is not supported by the record.

The Court also finds no

merit in Plaintiff’s argument that Defendant waived its right to
arbitrate by failing to respond to Plaintiff’s pre-suit letter.
See Parsons v. Halliburton Energy Servs., Inc., 785 S.E.2d 844,
850 (W. Va. 2016) (requiring the party against whom waiver is
sought to have “intentionally relinquished a known right”).
Finally, the Court is not persuaded by Plaintiff’s argument
that he never agreed to Defendant’s terms and conditions because
he had “no ability to view” the Agreement.
11, at 6–7.

See Response, ECF No.

Plaintiff’s lack of Internet access in his home does

2

Because the Court has found that the arbitration provision in the Agreement
is enforceable via the billing statements, the Court will not address
Defendant’s argument that Plaintiff also assented to the Agreement via a work
order.

6

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2:21-CV-17

MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO COMPEL ARBITRATION [ECF NO. 6]
not excuse him from inquiring into the terms of an offer he
repeatedly accepted by paying his bills and receiving telephone
and cable services.
III. CONCLUSION
For

the

reasons

discussed

above,

arbitration is GRANTED [ECF No. 6].

the

motion

to

compel

In light of this ruling,

Defendant’s motion to dismiss [ECF No. 8] and motion to stay
discovery [ECF No. 23] are DENIED AS MOOT.

The parties shall

participate in individual, non-class arbitration.
STAYED

pending arbitration of this matter.

This action is

The parties are

DIRECTED to submit a filing with the Court when arbitration is
complete.
It is so ORDERED.
The Clerk is DIRECTED to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: January 17, 2023
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA

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