Opinion
Civil Action 1:23-cv-02938-NYW-SBP
08-16-2024
JASIN MCGUIRE, Plaintiff, v. CARMAX BUSINESS SERVICES LLC, EXPERIAN INFORMATION SOLUTIONS, INC., and EQUIFAX INFORMATION SERVICES LLC, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SUSAN PROSE, UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on two motions seeking to compel arbitration: one filed by Defendant CarMax Business Services LLC (“CarMax”), ECF No. 14, and the second filed by Defendant Experian Information Solutions, Inc. (“EIS” or “Experian”), ECF No. 18. CarMax and EIS argue that, pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (“FAA”), the court (1) should compel pro se Plaintiff Jasin McGuire to arbitrate all claims that he raises against them in this case and (2) should stay this matter pending the completion of the arbitrations. The undersigned considers the Motions pursuant to the Order Referring Case (ECF No. 29), the Order referring the Motions (ECF No. 30), and 28 U.S.C. § 636(b)(1)(B). The court has reviewed the Motions and related briefing, the entire case file, and the applicable law. For the reasons discussed below, the court respectfully RECOMMENDS that the Motions be granted and this action be administratively closed pursuant to D.C.COLO.LCivR 41.2.
There is “a division among courts over whether motions to compel arbitration are dispositive for purposes of Magistrate Judge jurisdiction.” Hartsfield v. Frontier Airlines, Inc., No. 23-cv-02093-RMR-KAS, 2024 WL 3027972, at *1 n.3 (D. Colo. June 14, 2024) (citing Vernon v. Qwest Commc'nsInt'l, Inc., 857 F.Supp.2d 1135, 1140-41 (D. Colo. 2012) (collecting cases and noting that “courts are divided on whether motions to compel arbitration are dispositive for purposes of 28 U.S.C. § 636(b)(1)”)), recommendation adopted, 2024 WL 3611430 (D. Colo. July 1, 2024), appeal filed, No. 24-1305 (10th Cir. July 31, 2024). Like the court in Hartsfield, this court takes the cautious approach and issues a recommendation on the instant motions to compel arbitration.
The court takes the following facts from Mr. McGuire's complaint, ECF No. 1, and the evidence submitted in connection with the motions to compel arbitration. See, e.g., Petrie v. GoSmith, Inc., 360 F.Supp.3d 1159, 1161 (D. Colo. 2019).
Mr. McGuire brings claims against CarMax and EIS for violations of various provisions of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 etseq. (“FCRA”). ECF No. 1 ¶¶ 114-159. Two arbitration provisions bear on the court's assessment of the motions to compel arbitration.
I. Arbitration Provision in a CarMax Retail Installment Contract
On February 24, 2022, Mr. McGuire entered into a Retail Installment Contract (“RIC”) with CarMax to purchase a 2019 Jeep Cherokee. See ECF No. 14-1, Declaration of Meryl Roper, Senior Corporate Counsel of CarMax, ¶ 3 & Ex. A; see also Compl. ¶ 27 (“Plaintiff procured a loan from CarMax in February 2022”). In the RIC, Mr. McGuire financed $41,998.32 to be paid in 72 payments totaling $583.31 each. ECF No. 14-1 at 3. He initialed the first three pages of the RIC, representing that he had “read and agree[d] to all provisions on all pages,” id. at 3-5, and then signed an attestation on the final page of the RIC that included the following language:
The court cites to the page numbers generated by the court's Case Management/Electronic Case Files system.
This Contract has 4 pages, plus any optional [Guaranteed Asset Protection] Waiver
Agreement. This is Page 4. By signing below you represent that you have read and agree to all provisions on all pages, including the Arbitration Provision on Page 3 of this Contract.Id. at 6 (emphasis added). As pertinent here, the Arbitration Provision in the RIC states:
This Arbitration Provision describes when and how a Claim (defined below) shall be arbitrated. Arbitration is a way of resolving disputes before one or more neutral persons, instead of having a trial in court before a judge and/or jury. By signing this Contract, you and we agree to be bound by the terms of this Arbitration Provision. ...
IF YOU OR WE CHOOSE ARBITRATION, THEN ARBITRATION SHALL BE MANDATORY, AND:
• ANY CLAIM WILL BE DECIDED BY ARBITRATION AND NOT IN COURT OR BY A JURY TRIAL.
...
a. What Claims are Covered. A “Claim” is any claim, dispute or controversy between you and us that in any way arises from or relates to this consumer credit sale, the purchase you are financing by way of this Contract, the Vehicle and related goods and services that are the subject of the purchase and this Contract, or the collection or servicing of this Contract, including but not limited to:
• Initial claims, counterclaims, cross-claims and third-party claims;
• Disputes based on contract, tort, consumer rights, fraud and other intentional torts (at law or in equity, including any claim for injunctive or declaratory relief);
• Disputes based on constitutional grounds or on laws, regulations, ordinances or similar provisions; and
• Disputes about the validity, enforceability, arbitrability or scope of this Arbitration Provision or this Contract, subject to paragraph (f) of this Arbitration Provision.Id. at 5 (emphasis in original).
Paragraph (f) contains a class action waiver that does not apply here. ECF No. 14-1 at 5.
CarMax represents that Mr. McGuire made only one payment under the RIC on April 8, 2022. ECF No. 14 at 2. Mr. McGuire does not appear to dispute that point, but he claims that the reason for non-payment was that the Jeep was stolen just one month after he purchased it-a “twist of fate,” as he describes it. Compl. ¶ 28; see also ECF No. 17 at 3 (describing the “total loss” of the vehicle). Mr. McGuire submits an email from Turo, apparently the insurer of the vehicle, which discusses “settlement information” for a claim Mr. McGuire apparently made on the Jeep. ECF No. 17-1. A Turo representative directed Mr. McGuire to “reply to this email with [his] lien holder's information,” Id., but Mr. McGuire has not placed that email in the record and CarMax denies that it received any insurance proceeds or any recovery from a repossession and sale of the vehicle. ECF No. 14 at 2. A somewhat murky aspect of the story involves a separate CarMax loan to Mr. McGuire's son and CarMax's supposed conflation of the two loans (Mr. McGuire's and his son's), resulting in an “unexpected” credit to his son's account in the amount of $26,619.10 in about June 2022. ECF No. 17 at 4. CarMax ultimately closed the son's account and marked it “Paid in Full.” Id. Mr. McGuire doesn't say whether his son notified CarMax of this mistake or whether his son retained this erroneous payment.
Whatever the truth of the matter concerning Mr. McGuire's reasons for nonpayment under the RIC-and this court need not resolve those questions here-Mr. McGuire asserts that his credit was subsequently compromised. At some point, CarMax reported the loan as a “charge-off” to various credit-reporting agencies, including EIS, which allegedly resulted in “significant hardships to Mr. McGuire,” including “a tarnished credit reputation. Compl. ¶¶ 3033, 35, 116 & passim.
II. Arbitration Agreement With EIS
To explain its argument that arbitration of this dispute is compelled, EIS has submitted evidence detailing its relationship with various affiliates, which is necessary to recount here in some detail.
EIS is an affiliate of ConsumerInfo.com, Inc. (“CIC”). Declaration of Dan Smith, CIC Director of Product Operations, ECF No. 18-1 at 3 ¶ 2. CIC also does business as Experian Consumer Services (“ECS”). Id. at 2 ¶ 1. CIC/ECS and EIS are wholly-owned subsidiaries of Experian Holdings, Inc., and their parent company is Experian plc. Id. at 2 ¶ 2. CIC/ECS provides a credit-monitoring membership service called “CreditWorks.” Id. at 2 ¶ 1.
On December 27, 2022, before this litigation commenced, Mr. McGuire enrolled in CreditWorks. Id. at 2 ¶ 3. Mr. McGuire had to complete a webform to enroll in CreditWorks. Id. The webform required Mr. McGuire to enter his personal information, including his name, address, phone number, and email address. Id. & Smith Decl. Ex. 1, ECF No. 18-1 at 7. After entering that information, Mr. McGuire had to click the “Create Your Account” button on the webform to enroll. Id. The following disclosure was immediately below the boxes for entering his email address and password: “By clicking ‘Create Your Account': I accept and agree to your Terms of Use Agreement, as well as acknowledge receipt of your Privacy Policy.” Id. The phrase “Terms of Use Agreement” in the disclosure was hyperlinked and offset in blue text. Id. at 2 ¶ 4. Before clicking the “Create Your Account” button, Mr. McGuire could have viewed the entire text of the Terms of Use Agreement by clicking on the blue “Terms of Use Agreement” hyperlink. Id. If Mr. McGuire had clicked on that hyperlink, an additional window would have opened within his web browser that contained the entire text of the Terms of Use Agreement. Id. A large purple button reading “Create Your Account” was immediately below the disclosure. Id. The webform, disclosure, and the “Create Your Account” button appeared on a single webpage. Id. Smith Decl. Ex. 1.
After entering his information, Mr. McGuire clicked the “Create Your Account” button, thereby accepting and agreeing to the Terms of Use Agreement. Id. at 4 ¶ 5. Mr. McGuire would not have been able to enroll successfully in CreditWorks unless he clicked that button. Id. Mr. McGuire maintained a paid CreditWorks membership for one year, for which he paid $24.99 per month. ECF No. 36-1, Smith Reply Decl. at 2 ¶ 2. On December 20, 2023, Mr. McGuire cancelled his paid benefits, which automatically reverted him to a free CreditWorks membership. Id.
The Terms of Use Agreement in effect when Mr. Smith enrolled in CreditWorks is attached as Exhibit 2 to the Smith Declaration. Id. at 4 ¶ 5 & Smith Decl. Ex. 3. The Terms of Use Agreement in effect when Mr. McGuire filed this action is attached as Exhibit 3 to the Smith Declaration. Id. Every version of the Terms of Use Agreement that was in effect during Mr. McGuire's enrollment in CreditWorks contains an Arbitration Agreement that requires a party to arbitrate all claims against “ECS” that “relate to” or “arise out of” membership in CreditWorks:
ECS and you agree to arbitrate all disputes and claims between us arising out of or relating to this Agreement to the maximum extent permitted by law, except any disputes or claims which under governing law are not subject to arbitration. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us directly relating to the provision of any Service and/or your use of any Website subject to arbitration to the fullest extent permitted by law. The agreement to arbitrate includes, but is not limited to:
claims arising out of or relating to any aspect of the relationship between us arising out of any Service or Website, whether based in contract, tort, statute (including, without limitation, the Credit Repair Organizations Act) fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this agreement.Id. at 4 ¶ 6 & Smith Decl. Ex. 2, ECF No. 18-1 at 14. The Arbitration Agreement in the Terms of Use Agreement revised October 13, 2023, which was in effect when Mr. McGuire filed this lawsuit, similarly stated that “ECS and you agree to arbitrate all disputes and claims between us that arise out of or relate to this Agreement[.]” Smith Decl. Ex. 3, ECF No. 18-1 at 46. The Arbitration Agreement in this version of the Terms of Use Agreement specifically referenced claims under the FCRA as being subject to binding arbitration. Id. at 47. The Arbitration Agreement and the Overview and Acceptance of Terms section of the Terms of Use Agreement define “ECS” to include its “affiliates.” Id. at 4 ¶ 6; see also id. Ex. 2, ECF No. 18-1 at 14 (“For purposes of this arbitration provision, references to ‘ECS,' ‘you,' and ‘us' shall include our respective parent entities, subsidiaries, affiliates (including, without limitation, our service providers) . . .”); Ex. 3, ECF No. 18-1 at 45 (“The term ‘ECS' means ConsumerInfo.com, Inc., an Experian® company (also known as Experian Consumer Services), . . . its predecessors in interest, successors and assigns, affiliates (including, but not limited to, Experian Information Solutions, Inc.”). EIS has been an affiliate of ECS during the entire time Mr. McGuire has been enrolled in CreditWorks. Id. at 4, ¶ 6.
Every version of the Terms of Use Agreement in effect during Mr. McGuire's enrollment in CreditWorks has a section entitled “Amendments” that advised Mr. McGuire he would be bound by the then-current version of the agreement each time he “order[ed], access[ed], or use[d]” any of the services or websites described in the agreement. Id. at 5 ¶ 7; Ex. 2, ECF No. 18-1 at 11-12; Ex. 3, ECF No. 18-1 at 46.
During the period relevant to this litigation, EIS contributed to the services that CreditWorks subscribers received by providing regular access to how information appears in their EIS credit files, including changes to the information in those files. Id. at 5 ¶ 8. All CreditWorks subscribers are required under the FCRA to provide written authorization to obtain their credit reports or credit scores from EIS on a recurring basis through CreditWorks. Id. The Terms of Use Agreement covers the provision of “Services,” and that term is defined to include services to which EIS contributed as the provider of credit information, including CreditWorks, and providing “credit report(s), credit risk score(s), credit monitoring, credit score monitoring and credit score tracking (including all the data and information contained therein), the receipt of any alerts notifying [consumers] of changes to the information contained in [their] credit report(s)[.]” Id.; Ex. 2, ECF No. 18-1 at 12-13; Ex. 3, ECF No. 18-1 at 45.
III. The Motions to Compel Arbitration
On November 7, 2023, Mr. McGuire initiated this action against CarMax, EIS, and Equifax Information Services LLC. ECF No. 1. On December 4, 2023, CarMax filed its motion to compel arbitration, arguing that Mr. McGuire is bound by the terms of the Arbitration Provision in the EIS Contract. ECF No. 14. Similarly, EIS argues in its motion that Mr. McGuire is contractually bound to arbitrate the claims he raises against EIS. ECF No. 18. Mr. McGuire responded to both motions to compel, ECF No. 17 (CarMax Motion); ECF No. 26 (EIS Motion), and the moving parties filed replies. ECF No. 19 (CarMax); ECF No. 36 (EIS).
Equifax has answered the complaint. ECF No. 25.
The court analyzes each motion to compel, in turn, and concludes that both should be granted and the disputes between the parties resolved by an arbitrator.
ANALYSIS
I. Legal Standards Governing Arbitrability
The FAA “reflect[s] both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.” Sanchez v. Nitro-Lft Techs., LLC, 762 F.3d 1139, 1145 (10th Cir. 2014) (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). Accordingly, courts “must rigorously enforce arbitration agreements according to their terms,” Am. Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 233 (2013) (quotation and citation omitted), and resolve “any doubts concerning the scope of arbitrable issues” in favor of arbitration. Sanchez, 762 F.3d at 1146 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)). “In addition, this liberal policy covers more than simply the substantive scope of the arbitration clause, and encompasses an expectation that [arbitration] procedures will be binding.” P&P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 866 (10th Cir. 1999) (internal quotation marks and quotation omitted).
“A court addressing a motion to compel arbitration . . . must first determine whether there exists an enforceable agreement to arbitrate.” Brayman v. KeyPoint Gov't Solutions, Inc., 83 F.4th 823, 832 (10th Cir. 2023) (citing Granite Rock Co. v. Int'lBhd. of Teamsters, 561 U.S. 287, 299-300 (2010) (disputes over the formation of an arbitration agreement are “matters . . . ‘the court must resolve'”); Rent-A-Center v. Jackson, 561 U.S. 63, 71 (2010)). Then, the court proceeds “to determine such matters as ‘who is bound by' the agreement, Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630 . . . (2009), and whether the ‘agreement covers a particular controversy,' Rent-A-Center, 561 U.S. at 69 . . . .” Id. (citing Belnap v. Iasis Healthcare, 844 F.3d 1272, 1280 (10th Cir. 2017)); see also Cavlovic v. J.C. Penney Corp., Inc., 884 F.3d 1051, 1057 (10th Cir. 2018) (after determining that there is a valid agreement to arbitrate, the second step requires a court to determine whether the allegations in the complaint are within the scope of the arbitration provision).
However, at this second step of the process-before the court determines whether a particular issue is subject to arbitration-it may be obliged to decide the “gateway question” of whether issues of arbitrability must be decided by the arbitrator rather than the court. Brayman, 83 F.4th at 832. Because arbitration is a matter of contract, ‘parties can agree to arbitrate arbitrability.'” Id. (quoting Belnap, 844 F.3d at 1280). There is a presumption, however, “that the parties intend courts, not arbitrators,' to decide such issues.” Id. (quoting BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34 (2014)). And so a court should “not decide that the parties have delegated arbitrability issues to the arbitrator ‘unless there is clear and unmistakable evidence that they did so.'” Id. (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (brackets and internal quotation marks omitted); AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649 (1986) (“Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.”). If the parties in fact delegated arbitrability issues to the arbitrator, “a court possesses no power to decide the arbitrability issue. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.” Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 68 (2019).
In deciding a motion to compel arbitration, the court applies a framework similar to that it would utilize in deciding a motion for summary judgment: a motion to compel arbitration should only be granted “if there are no genuine issues of material fact regarding the parties' agreement” to arbitrate. Hancock v. Am. Tel. & Tel. Co., 701 F.3d 1248, 1261 (10th Cir. 2012) (quotation omitted). Because the legal framework for deciding a motion to compel arbitration is similar to summary judgment practice, the court may consider evidence presented by the parties. See, e.g., Petrie v. GoSmith, Inc., 360 F.Supp.3d 1159, 1161 (D. Colo. 2019). “The district court, when considering a motion to compel arbitration which is opposed on the ground that no agreement to arbitrate has been made by the parties, should give to the opposing party the benefit of all reasonable doubts and inferences that may arise.” Vernon v. Qwest Comm. Int'l, Inc., 857 F.Supp.2d 1135, 1149 (D. Colo. 2012) (quoting omitted), order af'd, 925 F.Supp.2d 1185 (D. Colo. 2013); see also BOSC, Inc. v. Bd. of Cnty. Comm'rs of Cnty. of Bernalillo, 853 F.3d 1165, 1177 (10th Cir. 2017) (explaining that a court must view the facts in the light most favorable to the party opposing arbitration).
Once the court concludes that a valid arbitration agreement exists, and that the dispute falls within the scope of the agreement, the FAA mandates a stay of a judicial proceeding. 9 U.S.C. § 3 (the court, “upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had”); see also Nichols v. Google LLC, No. 23-cv-01022-RMR-NRN, 2023 WL 5938917, at *2 (D. Colo. Sept. 12, 2023), report and recommendation adopted, No. 23-cv-01022-RMR-NRN, 2023 WL 9232937 (D. Colo. Oct. 11, 2023).
II. CarMax's Motion to Compel Arbitration
At issue here is the Arbitration Provision in the RIC between Mr. McGuire and CarMax. For the reasons that follow, the court finds that the Arbitration Provision is a valid and enforceable arbitration agreement and that the dispute between the parties must be determined by an arbitrator.
A. Enforceable Agreement to Arbitrate
The court turns first to the question of “whether there exists an enforceable agreement to arbitrate,” Brayman, 83 F.4th at 832, which is a matter the court must resolve. Granite Rock Co., 561 U.S. at 299-300. In assessing this question, the court “should apply ordinary state-law principles that govern the formation of contracts to determine whether a party has agreed to arbitrate a dispute.” Hardin v. First Cash Fin. Servs., Inc., 465 F.3d 470, 475 (10th Cir. 2006) (internal quotation marks omitted).
The RIC explicitly states that “federal law and the law of the State of Colorado apply to this Contract.” ECF No. 14-1 at 4. Under Colorado law, “when the arbitrability decision is originally submitted to the court, rather than the arbitrator, the court's initial task ‘is to determine whether the agreement contains a valid and binding [arbitration] clause using traditional principles of contract interpretation.'” Johnson-Linzy v. Conifer Care Communities A, LLC, 469 P.3d 537, 547 (Colo.App. 2020) (quoting City & Cnty. of Denver v. Dist. Court, 939 P.2d 1353, 1363 (Colo. 1997)). In making this assessment, courts “will enforce the agreement as written unless there is an ambiguity in the language; courts should neither rewrite the agreement nor limit its effect by a strained construction. Thus, like any contract, an arbitration agreement must be given effect according to the plain and ordinary meaning of its terms.” Allen v. Pacheco, 71 P.3d 375, 378 (Colo. 2003) (internal citation omitted).
Here, the plain language of the Arbitration Provision “is not reasonably susceptible on its face to more than one interpretation.” See id. There is no hint of ambiguity in its language. Rather, the Provision unequivocally, and repeatedly, emphasizes Mr. McGuire's specific assent to the proposition that any disputes between CarMax and him will be arbitrated:
By signing this Contract, you and we agree to be bound by the terms of this Arbitration Provision. ...
IF YOU OR WE CHOOSE ARBITRATION, THEN ARBITRATION SHALL BE MANDATORY, AND:
• ANY CLAIM WILL BE DECIDED BY ARBITRATION AND NOT IN COURT OR BY A JURY TRIAL.
ECF No. 14-1 at 5, Arbitration Provision (emphasis in original). The evidence here demonstrates that Mr. McGuire manifested his assent to the Arbitration Provision twice: first, when he initialed the page containing the Provision-representing that he had “read and agree[d] to all provisions on all pages,” Id. at 5-and then again when he signed the attestation on the final page of the RIC, agreeing to “the Arbitration Provision on Page 3 of this Contract.” Id. at 6 (emphasis in original); see also Vernon, 857 F.Supp.2d at 1149 (in determining whether a contract exists, “‘evidence of the parties' conduct, their oral statements and their writings, and other evidence illuminating the circumstances surrounding the making of an agreement are admissible to clarify the intent and purpose of the parties'”) (quoting I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 888 (Colo. 1986)).
Mr. McGuire points to no specific ambiguity on this record, and to reiterate, this court discerns none. Rather, the intent of the parties to submit to arbitration is manifested by the plain terms of the Arbitration Provision, coupled with Mr. McGuire's affirmative written acceptance of them. And if Mr. McGuire harbored some “uncommunicated, subjective intent” to resist the Arbitration Provision, that is insufficient to rebut his “objective manifestation of assent” readily apparent on the record here. See id. (citing Avemco Insurance Co. v. N. Colo. Air Charter, Inc., 38 P.3d 555, 559 (Colo. 2002)).
Therefore, considering the totality of the undisputed evidence before the court, CarMax has met its burden to show the existence of a valid arbitration agreement. Mr. McGuire has not met his burden to demonstrate a genuine issue of material fact as to the enforceability of the arbitration agreement. Indeed, he does not dispute the contents of the RIC-including the numerous explicit iterations of the arbitration requirement contained in that contract-or that he indicated his agreement to arbitration by initialing and signing the document in multiple places. In short, nothing in the record calls into question the validity and enforceability of the Arbitration Provision.
B. Arbitrability of the Dispute
1. Delegation of Arbitrability
Having concluded that the Arbitration Provision is a valid and enforceable contract under Colorado law, the next step in the arbitration assessment is to decide whether the Provision covers the controversy between the parties. See Rent-A-Center, 561 U.S. at 69. But preliminarily, the court must resolve “the gateway question of who-the court or the arbitrator-decides” whether Mr. McGuire's FCRA claims fall within the scope of the Provision and are subject to arbitration. See Brayman, 83 F.4th at 832.
This critical threshold question is accorded a passing reference in CarMax's briefing. CarMax asserts that the Arbitration Provision “define[s] the scope of arbitral issues to include, inter alia, ‘Disputes about the validity, enforceability, arbitrability, or scope of this Arbitration Provision or this Contract . . .” ECF No. 14 at 8 (emphasis added); see also ECF No. 14-1 at 5, Arbitration Provision ¶ (a). But then CarMax proceeds to argue that the Arbitration Provision is sufficiently broad to cover the FCRA claims that Mr. McGuire raises here, see ECF No. 14 at 810, suggesting that it is for this court to decide the scope question. There is a tension between CarMax's lip service to the threshold issue and the focus of its briefing. Nevertheless, this court must refrain from “usurping the role of the arbitrator,” Brayman, 83 F.4th at 833, and so it must first directly address the gateway question. As the Tenth Circuit made clear in Belnap:
Given that parties can agree to arbitrate arbitrability, as well as other issues, questions of arbitrability encompass two types of disputes: (1) disputes about whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement; and (2) threshold disputes about who should have the primary power to decide whether a dispute is arbitrable . . . . Importantly, courts must address the second type of dispute first. In other words, the question of who should decide arbitrability precedes the question of whether a dispute is arbitrable.844 F.3d at 1280-81 (internal quotation marks and citations omitted) (emphasis in original).
The starting point for answering the question of “who should decide arbitrability” begins with the language of the Arbitration Provision itself, which-as CarMax noted, albeit briefly- explicitly places that decision in the hands of the arbitrator. ECF No. 14-1 at 5, Arbitration Provision ¶ (a) (placing in the category of “What Claims are Covered” any “disputes about the validity, enforceability, arbitrability or scope of this Arbitration provision or this Contract”); see also Naizgi v. HSS, Inc., 685 F.Supp.3d 1015, 1020 (D. Colo. 2023) (“The question of who has the power to decide arbitrability depends upon what the parties have decided.”) (citing First Options). Under well-settled principles of contract interpretation, “[t]he words of the contract should be given their plain meaning according to common usage, and strained constructions should be avoided.” Allstate Ins. Co. v. Huizar, 52 P.3d 816, 819 (Colo. 2002) (internal citations omitted); see also Prof'l Solutions Ins. Co. v. Mohrlang, No. 07-cv-02481-PAB-KLM, 2009 WL (in interpreting contracts, “courts are to give effect to the intent and reasonable expectations of the parties and to enforce the [contract's] plain language unless it is ambiguous”) (citing Hoang v. Assurance Co. of Am., 149 P.3d 798, 801 (Colo. 2007)).
Here, the Arbitration Provision manifests the parties' clear intent to delegate issues of arbitrability to the arbitrator, and Mr. McGuire has not challenged the delegation provision specifically. “The Supreme Court has held that ‘when parties agree that an arbitrator should decide arbitrability, they delegate to an arbitrator all threshold questions concerning arbitrability[.]” Naizgi, 685 F.Supp.3d at 1020 (quoting Belnap, 844 F.3d at 1280) (emphasis added). Thus, here, it is for the arbitrator to decide whether Mr. McGuire's FCRA claims fall within the scope of the Arbitration Provision, and to address the merits of his arguments against enforcement of the Provision, including on unconscionability grounds. See Frazier v. W. Union Co., 377 F.Supp.3d 1248, 1267-68 (D. Colo. 2019) (holding that plaintiff's unconscionability arguments challenging validity of arbitration clause were for the arbitrator to decide).
Put simply, paragraph (a) in the Arbitration Provision “is ‘clear and unmistakable evidence' that the parties intended an arbitrator to decide whether the agreement applies and the dispute is arbitrable.” Brayman, 83 F.4th at 833 (quoting First Options, 514 U.S. at 944). The Arbitration Provision gives the arbitrator, and not the courts, “the exclusive authority to resolve disputes about the applicability of the agreement[.]” Id. at 836. For this reason alone, arbitration is compelled. However, if the Honorable Nina Y. Wang, the presiding judge in this matter, resolves the gateway issue differently, the court alternatively proceeds to address the question of the arbitrability of Mr. McGuire's FCRA claims under the Arbitration Provision-an issue on which CarMax has presented extensive argument. ECF No. 14 at 8-10. If Judge Wang reaches the scope question, Carmax's Motion to Compel should still be granted.
2. Scope of the Arbitration Provision
The court has concluded that the Arbitration Provision is a valid and enforceable contract under Colorado law that authorizes a moving party the right to compel arbitration. Proceeding on the assumption that this court (rather than the arbitrator) may decide whether a dispute is arbitrable, the court next considers whether Mr. McGuire's FCRA claims fall within the scope of the Arbitration Provision and must be decided by the arbitrator. See Cavlovic, 884 F.3d at 1057. For the reasons set forth below, this court respectfully answers that question in the affirmative.
The Arbitration Provision broadly covers “any claim, dispute or controversy . . . that in any way arises from or relates to this consumer credit sale[.]” ECF No. 14-1 at 5 (emphasis added). Recall that the presumption of arbitrability is “particularly applicable” to a broad arbitration clause such as this. AT&T Techs., 475 U.S. at 650; see also Allen, 71 P.3d at 378 (recognizing that “a broad or unrestricted arbitration clause makes the strong presumption favoring arbitration apply with even greater force”) (internal quotation marks and citation omitted). Here, Mr. McGuire's claims under the FCRA clearly “arise[] from or relate[] to” the financing of his purchase of the 2019 Jeep Cherokee through the RIC, and the FCRA claims further raise a “dispute[] based on” both “consumer rights . . . and laws . . .” ECF No. 14-1 at 5, Arbitration Provision ¶ (a). Mr. McGuire does not argue that there are any legal constraints foreclosing arbitration of FCRA claims as a general matter, nor is this court aware of any such restrictions. See, e.g., Davis v. Ally Fin'l Inc., No. 23-22897 (RMB-MJS), 2024 WL 2239144, at *3 (D.N.J. May 17, 2024) (finding that lawsuit raising FCRA claims was “clearly covered” by the “broad arbitration clause” in a RIC) (citing Jacobowitz v. Experian Info. Sols., Inc., No. 1920120, 2021 WL 651160, at *4 (D.N.J. Feb. 19, 2021) (compelling arbitration of FCRA claim and finding that compelling arbitration of that claim would not be unconscionable)). Under these circumstances, this court could not logically say “with positive assurance that the [Arbitration Provision] is not susceptible of an interpretation that covers the asserted dispute.” See AT&T Techs., 475 U.S. at 650.
Accord, e.g., Nykoriak v. Experian Info. Sols., LLC, No. 21-CV-12227, 2022 WL 4455548, at *4 (E.D. Mich. Sept. 23, 2022) (Even if plaintiff “had attempted to argue FCRA claims are non-arbitrable, such assertions would be unavailing. Such a contention would overlook the reality that courts across the country have enforced arbitration clauses in connection with claims brought under the Fair Credit Reporting Act.”) (cleaned up); Burton v. Equifax Info. Servs., LLC, No. 1:21-CV-00233-DCLC-SKL, 2021 WL 5500773, at *3 (E.D. Tenn. Nov. 22, 2021) (“[C]ourts within the Sixth Circuit have held that FCRA claims are arbitrable.”); McMahan v. Byrider Sales of Indiana S, LLC, No. 3:17-CV-00064-GNS, 2017 WL 4077013, at *4 (W.D. Ky. Sept. 14, 2017) (“There is no indication that Congress intended to preclude the arbitration of FCRA claims and courts have held that such claims are arbitrable.”) (collecting cases); Ostreicher v. TransUnion, LLC, No. 19-CV-8174 (KMK), 2020 WL 3414633, at *9 (S.D.N.Y. June 22, 2020) (“With respect to the FCRA, district courts within the Second Circuit regularly compel arbitration of such claims.”) (collecting cases).
The court has carefully considered Mr. McGuire's counter-arguments and is unpersuaded by them. His pitch to evade the Arbitration Provision is that it would be inequitable for the court to enforce the provision because CarMax has engaged in “misappropriation.” See ECF No. 17 at 4-5 (arguing that CarMax credited an insurance payment for McGuire's allegedly stolen vehicle to his son's separate CarMax account, and “urg[ing] the Court to recognize the procedural and substantive injustices at play and to rule against the enforcement of the arbitration agreement, allowing for a thorough judicial review of this case”). But if the crux of the matter is CarMax's alleged “misappropriation,” that constitutes tortious conduct which also falls squarely within the scope of the Arbitration Provision. ECF No. 14-1 at 5 (Arbitration Provision encompasses disputes based on contract and tort, including “fraud or other intentional torts”); see also Sticky.io, Inc. v. Martingale Software, LLC, No. 21-cv-00664-RM-STV, 2022 WL 1061911, at *1 (D. Colo. Apr. 8, 2022) (recognizing that “[misappropriation, interference with business relationships, and fraud are torts”). Like Mr. McGuire's FCRA claims, any tort claim (which he has not pleaded in this case) would be subject to arbitration.
This court expresses no opinion on the merits questions of whether the tort of misappropriation may be cognizable in this context and, if so, whether CarMax engaged in tortious conduct.
Mr. McGuire next argues that he cannot be compelled to arbitrate because CarMax failed to comply with the notice requirement in the Arbitration Provision. ECF No. 17 at 8-9; see also ECF No. 14-1 at 5, Arbitration Provision ¶ (b) (“Either you or we may require any Claim to be arbitrated by first sending to the other party, by certified mail, a written notice of dispute[.]”). However, Mr. McGuire misapprehends the clear intent of the notice requirement; it was he, the party raising the dispute, who was obliged to provide notice to CarMax-not the other way around. Because Mr. McGuire circumvented the Arbitration Provision altogether by filing this lawsuit, CarMax's first opportunity to point to the arbitration mandate was by means of the instant motion to compel arbitration. And so it is Mr. McGuire, not CarMax, who has “fail[ed] to follow contractual procedures.” See ECF No. 17 at 8.
Mr. McGuire further asserts that the Arbitration Provision cannot be enforced because it is procedurally and substantively unconscionable. ECF No. 17 at 9-11. His procedural argument focuses on the supposed “absence of meaningful choice” about the contract, ECF No. 17 at 10, and he contends that the Provision is substantively unconscionable because it has compelled him to forego certain remedies under the Colorado Consumer Protection Act. See id. Neither argument is persuasive.
The Colorado Supreme Court has established a multi-factor test to determine whether a contract is procedurally and substantively unconscionable. The factors to be considered are: (1) a standardized agreement executed by parties of unequal bargaining power, (2) lack of opportunity to read or become familiar with the document before signing it, (3) use of fine print in the portion of the contract containing the challenged provision, (4) absence of evidence that the provision was commercially reasonable or should have reasonably been anticipated, (5) the terms of the contract, including substantive unfairness, (6) the relationship of the parties, including considerations of assent, unfair surprise, and notice, and (7) all the circumstances surrounding the formation of the contract, including its commercial setting, purpose, and effect. Davis v. M.L.G. Corp., 712 P.2d 985, 991 (Colo. 1986). It is Mr. McGuire's burden, as the party challenging arbitration, to persuade the court that the contract is unconscionable. Weller v. HSBC Mortg. Servs., Inc., 971 F.Supp.2d 1072, 1080 (D. Colo. 2013) (burden is on the party opposing arbitration to establish unconscionability). He has failed to do so.
The court begins by recognizing that “arbitration of disputes is generally not unconscionable, and in fact is encouraged by Congress.” Spain v. Johnson, No. 23-cv-00419-DDD-MEH, ___ F.Supp.3d ___, 2024 WL 907435, at *4 (D. Colo. Jan. 16, 2024) (citing 9 U.S.C. § 2). In Spain, the court found that even though Lyft's terms of service “are a standardized form, the terms were readily available to [plaintiff], the use of arbitration is common and not unreasonable (in fact it is encouraged by Congress), and the mass nature of Lyft's service means that tens of thousands of other customers are able to review the same terms. The circumstances here simply don't support the idea that this provision was snuck in or forced upon an unsuspecting or unsophisticated customer with no other options.” Id. (citing Davis, 712 P.2d at 991).
Application of the Davis factors compels the same result here. While the Arbitration Provision is a standardized form, it was readily available to Mr. McGuire-and, certainly, large numbers of other CarMax clients-for review. Notably, “the use of arbitration is common and not unreasonable” in a situation like this, “where tens of thousands of other consumers are able to review the same terms.” Spain, 2024 WL 907435, at *3 (rejecting argument of unconscionability in a terms of service contract for Lyft). Mr. McGuire denies a “proper opportunity for review,” ECF No. 17 at 10, but nothing in the record indicates that he was forced into a “take-it-or-leave-it” position and compelled to immediately buy the vehicle, or that any CarMax official prevented him from taking the time he needed to review the four-page RIC. The print in the Arbitration Provision is the same size as the rest of the RIC, is not especially small, and is legible. And Mr. McGuire points to no evidence that the Arbitration Provision is commercially unreasonable or that a purchaser should not have reasonably anticipated that a large corporation in the business of selling and financing vehicles would not include a standard arbitration requirement in its contracts. Neither is there anything on the face of the Arbitration Provision suggesting any substantive unfairness or an intention to catch the consumer unawares; rather, the language provides clear notice that arbitration will be required to resolve almost every potential dispute between the parties.
Finally, the record here evinces no circumstances surrounding the formation of the contract that would implicate other concerns, including Mr. McGuire's contention that the Arbitration Provision obliges him to forego a remedy under the Colorado Consumer Protection Act (“CCPA”), Colo. Rev. Stat. §§ 6-1-101 et seq., including attorney's fees. See ECF No. 17 at 11. He has not raised a CCPA claim in this action, but even if he had, nothing in the Arbitration Provision prohibits the assertion of a statutory right under the CCPA or bars the mediator from awarding attorney's fees in accordance with that statute. See ECF No. 14-1 at 5 ¶ (e) (“Each party must pay the expense of that party's attorneys . . . regardless of which party prevails in the arbitration, unless applicable law . . . provide[s] otherwise.”) (emphasis added).
At bottom, Mr. McGuire has failed to show that the Arbitration Agreement is unconscionable or otherwise unenforceable. He obviously prefers to litigate his claims in this court, but that preference does not render an arbitration agreement unconscionable. See Spain, 2024 WL 907435, at *4 (citing Bekele v. Lyft, Inc., 918 F.3d 181 (1st Cir. 2019)). Accordingly, the court finds that the unconscionability argument does not prevent the enforcement of the arbitration agreement in the RIC. Because the dispute Mr. McGuire raises falls within the scope of the Arbitration Provision, he should be compelled to arbitrate his claims against CarMax. The court therefore respectfully RECOMMENDS that CarMax's Motion to Compel Arbitration be granted.
III. EIS's Motion to Compel Arbitration
EIS seeks to compel arbitration of Mr. McGuire's claims in this FCRA dispute on grounds that (1) the parties have entered into the Arbitration Agreement, a valid agreement to arbitrate Mr. McGuire's claims; (2) EIS is authorized to enforce the Arbitration Agreement; and (3) issues of arbitrability have been delegated to the arbitrator under the Arbitration Agreement. EIS Motion at 14-20. As EIS explains in its Motion, these arguments have been resolved in its favor in more than twenty cases in federal district courts across the country. Id. at 7-8 (listing twenty-three cases in which EIS prevailed). Based on this court's research, since EIS filed its Motion, other courts have agreed with EIS and resolved in its favor identical issues to those in the instant case. See, e.g., George v. Experian Info. Sols., No. 23-cv-02303-LKG, 2024 WL 3013146, at *9 (D. Md. June 14, 2024) (in a case involving the identical Arbitration Agreement contained in the CreditWorks Terms of Use, concluding that “Plaintiff must pursue all claims against EIS in this FCRA matter, including any threshold issues regarding the scope of the arbitration agreement and whether EIS may enforce that agreement, before the arbitrator”).
The record here provides no reason for this court to diverge from the well-reasoned holdings of its many sister courts. For the reasons that follow, this court respectfully recommends that this matter be compelled to arbitration.
A. EIS's Evidence in Support of the Motion to Compel
As a preliminary matter, the court must address Mr. McGuire's arguments seeking to undermine the evidence presented by EIS: specifically, the declaration of CIC Director of Product Operations Dan Smith and the documents attached to Mr. Smith's declaration. See ECF No. 18-1.
Liberally construing Mr. McGuire's response and giving it the maximum possible credit,Mr. McGuire contends that Mr. Smith lacks personal knowledge of the facts set forth in his declaration and the documents attached to the declaration. In other words, this court should refuse to consider this evidence in deciding the Motion to Compel. The court has carefully considered the matter and sees it quite differently.
Mr. McGuire's argument is somewhat hard to make out, given that he focuses on a declaration submitted by a person named David Williams, a declarant for EIS in another case brought in a different court. See ECF No. 26 at 3-7.
A “declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the . . . declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Further, “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. “Personal knowledge may be proved by a witness's or a declarant's own testimony, or reasonably inferred from his position or the nature of his participation in the matters to which he swears.” Johnson v. Sw. Recovery Servs. Inc., No. 3:22-CV-242-X-BH, 2023 WL 1944127, at *3 (N.D. Tex. Jan. 24, 2023), report and recommendation adopted, 2023 WL 1879999 (N.D. Tex. Feb. 10, 2023).
Mr. Smith declares-and there is nothing in the record to contradict his statements-that he has personal knowledge directly relevant to the arbitration question before this court. He derives that personal knowledge from many sources. He is the Director of Product Operations for CIC, is charged with supporting CIC's online sign-up process for CreditWorks, and is able to verify that Mr. McGuire enrolled in CreditWorks on December 27, 2022, based upon Mr. Smith's review of CIC membership enrollment data maintained in its regular course of business. ECF No. 18-1 at 2-3, ¶¶ 1, 3. And Mr. Smith has explained, under penalty of perjury, that he is personally familiar with the process for establishing a CreditWorks account through the CIC website. Id. at 3-4 ¶¶ 4-6. The webform required for Mr. McGuire to enroll in CreditWorks, and the Terms of Use governing his membership, fall within the categories of documents of which Mr. Smith has personal knowledge. Id. at 3-4 ¶¶ 4-6; see also Background § B., above, & ECF No. 18-1 at 2-3 ¶ 1 (detailing Mr. Smith's history with CIC, his job duties, and his acquisition of knowledge “in the course and scope of [his] job responsibilities and through the review of pertinent documents maintained as business records by CIC in the course and scope of CIC's business, including Experian's internal records that store CreditWorks account information”).
Mr. Smith's statements on these points, based on his “own personal knowledge,” ECF No. 18-1 at 3 ¶ 1, are not “superficial,” as Mr. McGuire asserts. ECF No. 26 at 1. This court finds that the evidence introduced here is “sufficient to support a finding that the witness has personal knowledge of the matter,” Fed.R.Evid. 602, as many other courts have found when faced with nearly identical circumstances. See, e.g., Hanson v. Experian Info. Sols. Inc., No. 1:23-CV-4564-MHC-CMS, 2024 WL 2974160, at *3 (N.D.Ga. June 12, 2024) (“When presented with arbitration agreements in contracts formed online between Experian and consumers, courts routinely have relied on declaration testimony like that provided by [Dan] Smith in this case to demonstrate how the consumer manifested assent to the company's arbitration provision.”) (collecting cases), report and recommendation adopted, 2024 WL 3509482 (N.D.Ga. July 22, 2024); Johnson, 2023 WL 1944127, at *5 (upholding use of declaration of David Williams); Salazar v. Experian Info. Sols., Inc., No. 4:22-cv-00598-HFS, 2023 WL 3529635, at *5 (W.D. Mo. May 15, 2023) (same); Pecoraro v. Synovus Bank, No. 23-cv-80780-Rosenberg, 2024 WL 167391, at *1 (S.D. Fla. Jan. 16, 2024) (“The Williams Affidavit is competent evidence to show that Plaintiff accepted the Terms of Service Agreements-and the relevant arbitration clause-that were in effect when he enrolled in CreditWorks. Mr. Williams had personal knowledge of the contents of the Terms of Service Agreements at the time of Plaintiff's enrollment, and every enrollee had to accept those terms before using the software.”).
Mr. McGuire argues in opposition that this court should be guided by Austin v. Equifax Servs., LLC, No. 3:22cv707, 2023 WL 8646275 (E.D. Va. Dec. 14, 2023), appeal filed, No. 232301 (4th Cir. Dec. 21, 2023). See ECF No. 26-1 at 2-3. In Austin, EIS moved to compel arbitration, relying on the declaration of David Williams, the Vice President of Business Governance for CIC. See 2023 WL 8646275, at *2. The court excluded Mr. Williams's declaration, finding that his job description did not clearly explain the basis for his purported personal knowledge: “Nothing in Williams' job description disclosed personal knowledge of how the system at issue works.” Id. at *7. Neither, in Austin, did Mr. Williams identify the documents on which he based his assertion of personal knowledge. Id. at *4.
Notwithstanding the generally straightforward nature of the question presented in a motion to compel arbitration, the trial court proceedings in Austin appear to have been complex and messy. See 2023 WL 8646275, at *3 (discussing a lengthy arbitration-discovery process and numerous discovery disputes); see also ECF No. 36 at 11-13 (describing same).
Not so here. Mr. Smith has provided detailed information about his job duties and his personal familiarity with the CreditWorks enrollment process-down to a level of granularity as to which webpages a consumer would encounter to complete their enrollment and which links or buttons the consumer would necessarily have clicked on. ECF No. 18-1 at 2-3 ¶¶ 3-4. Indeed, Mr. Smith is “able to retrieve a consumer's CreditWorks membership information,” from which he can “confirm the consumer's membership details, such as the date and time of enrollment, the version of the Terms of Use they agreed to, and the exact path the consumer encountered when completing their enrollment into CreditWorks.” ECF No. 18-1 at 2 ¶ 1 (emphasis added).
On the basis of these facts-concerning which Mr. McGuire raises no genuine dispute- this court finds that Mr. Smith “has the requisite personal knowledge to attest to the statements set forth in his declaration.” Hanson, 2024 WL 2974160, at *4 (finding same with respect to a declaration Mr. Smith provided in that case). The situation here is thus distinguishable matter from Austin, which this court is not obliged to follow and which appears to be an outlier in any event. See, e.g., Baker v. Experian Info. Sols., Inc., No. 1:24-cv-00605-TWP-MJD, 2024 WL 3082644, at *2 (S.D. Ind. June 20, 2024) (observing, in relying on Dan Smith's declaration, that plaintiff's reliance on Austin “proves weak,” because Austin is on appeal and the Fourth Circuit recognizes that “affidavits submitted by corporate representatives . . . are properly considered when the corporate representative expressly verifies that the matters stated therein are based on his own personal knowledge gained through review of business records”) (quotation omitted); Williams v. Experian Info. Sols., Inc., No. CV-23-01076-PHX-DWL, 2024 WL 739676, at *4 (D. Ariz. Feb. 23, 2024) (rejecting plaintiff's reliance on Austin in finding that “[t]he Court cannot ignore that many courts, including the Ninth Circuit, have granted requests by Defendant to compel arbitration under what appears to be the same agreement”) (citing Meeks v. Experian Info. Sols, Inc., Nos. 21-17023, 22-15028, 2022 WL 17958634 (9th Cir. Dec. 27, 2022)); Scribner v. Trans Union LLC, No. 2:23-cv-02722-JAM-CKD, --- F.Supp.3d ---, 2024 WL 3274838, at *3 (E.D. Cal. July 2, 2024) (noting that “Plaintiff has also not provided legal authority . . . requiring [Dan] Smith to specifically identify every document on which he may have relied,” and finding that “Plaintiff's reliance on Austin . . ., an unpublished decision from the Eastern District of Virginia that is currently on appeal, is unavailing”).
Finally, Mr. McGuire makes a passing reference to hearsay, see ECF No. 26 at 5 (referring to hearsay in connection with the Williams declaration in Austin), suggesting that Mr. Smith's declaration and the attached exhibits constitute inadmissible hearsay. Assuming, without deciding, that these materials are in fact hearsay, their exclusion from the record is not required.
“[A]lthough affidavits are permissible in form, the content or substance of the affidavit must be otherwise admissible, and any hearsay contained in a summary judgment affidavit remains hearsay, beyond the bounds of the court's consideration.” Friends of Animals v. Bernhardt, 15 F.4th 1254, 1272 (10th Cir. 2021) (internal quotation marks and citation omitted, emphasis in original). The same is true of the documents attached to such affidavits. See, e.g., id. at 1273 (discussing Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016)).
Pursuant to Federal Rule of Evidence 801, hearsay is defined as any statement that “the declarant does not make while testifying at the current trial or hearing” and that “a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). “Hearsay testimony is generally inadmissible.” Archer v. Griswold, 638 F.Supp.3d 1246, 1254 (D. Colo. 2022) (quotation omitted). “[T]he proponent of hearsay evidence bears the burden of establishing the applicability of a hearsay exception[.]” United States v. Irvin, 682 F.3d 1254, 1262 (10th Cir. 2012).
Evidence that would otherwise be inadmissible as hearsay is admissible under the business records exception if the following conditions are met: the records were (A) made around the time of the events at issue, (B) kept in the course of a regularly conducted business activity, and (C) made as a regular practice of that activity. See Fed.R.Evid. 803(6)(A)-(C). These requirements for admitting the evidence must be “shown by the testimony of the custodian or another qualified witness[.]” Fed.R.Evid. 803(6)(D). The witness is not himself required to have detailed personal information about the records system in order to provide this testimony. See United States v. Penn, No. 20-cr-00152-PAB, 2021 WL 4943647, at *3 (D. Colo. Oct. 22, 2021) (rejecting argument that a records custodian can only testify as to documents he or she has first-hand knowledge of) (citing In re Kim, 809 Fed.Appx. 527, 540 (10th Cir. 2020) (“[T]he ‘custodian or other qualified witness need not have personal knowledge regarding the creation of the document offered, or personally participate in its creation, or even know who actually recorded the information.'”) (quotation omitted)).
Here, Mr. Smith, who has worked for CIC for fourteen years, has testified as to each of the conditions necessary to invoke the business-records exception. Mr. Smith states in his declaration that he is qualified to testify about CIC's business records because his “duties at CIC include supporting the consumer enrollment process into CreditWorks, and related services,” and that these obligations require him to be familiar with “how consumers enroll, the forms they must complete to enroll, . . . [and] the Terms of Use governing such services”-as well as “Experian's databases that store consumer enrollment” and “consumer account information[.]” ECF No. 18-1 at 2 ¶ 1. He avers that he is “familiar with Experian's internal records that document consumers' ongoing use of their CreditWorks account, including when a consumer logs into their account or changes their account information[.]” Id. He has reviewed “CIC's membership enrollment data maintained in the regular course of business,” which enabled him to verify that Mr. McGuire enrolled in CreditWorks on December 27, 2022. Id. at 3 ¶ 3.
This information, including information about Mr. “Smith's position with CIC, the nature of his job duties, his familiarity with the CreditWorks enrollment process, and the information and records available to him,” see Hanson, 2024 WL 2974160, at *5, is sufficient to show that he is qualified to offer his declaration and to meet the conditions under Federal Rule of Evidence 803(6)(A)-(D). On the other side, Mr. McGuire has not “show[n] that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Id. 803(6)(E). This court therefore properly considers the declaration, and the attached exhibits, in evaluating EIS's Motion to Compel Arbitration. See Hancock, 701 F.3d at 1264.
B. Enforceable Agreement to Arbitrate
With this preliminary evidentiary matter disposed of, the court turns to the substantive question of whether there exists an enforceable agreement to arbitrate. EIS argues that Mr. McGuire is contractually bound to arbitrate the claims he raises against EIS in this lawsuit. ECF No. 18 at 14-19. This court agrees.
The court looks to precedent in this Circuit that has routinely enforced internet agreements where, as here, the user is required to affirmatively acknowledge the agreement before proceeding to use a website. The Tenth Circuit has specifically found that such “a clickwrap agreement” is valid and enforceable. Hancock, 701 F.3d at 1256 (recognizing that “[c]lickwrap agreements are increasingly common and have routinely been upheld”) (quotation omitted). Many cases in this District have followed suit. “Courts have held that clicking ‘accept' to the terms of a clickwrap agreement, even when the terms do not appear on the same screen as the ‘accept' button but are available with the use of a hyperlink, is sufficient to form a contract.” Nichols, 2023 WL 5938917, at *3 (citing Vernon, 857 F.Supp.2d at 1150-51; Hancock, 701 F.3d at 1257-58; and Health Grades, Inc. v. Hamot Med. Cent., No. 05-cv-02163-REB-MEH, 2006 WL 8454634, at *3 (D. Colo. Feb. 27, 2006) (finding clickwrap agreement binding and collecting cases from other jurisdictions finding the same)); see also, e.g., Petrie, 360 F.Supp.3d at 1161 (observing that, “[w]ith respect to internet arbitration agreements, courts ‘routinely' uphold such agreements provided the user had ‘reasonable notice, either actual or constructive, of the terms of the putative agreement and . . . manifested assent to those terms”) (quoting Vernon, 857 F.Supp.2d at 1149).
“Clickwrap” agreements are of the type at issue here, which present the consumer with terms and conditions and a mechanism for assenting to those terms. Vernon, 857 F.Supp.3d at 1149.
Here, as described above, the evidence demonstrates that Mr. McGuire manifested his assent to the Arbitration Agreement. His act of clicking on the purple “Create Your Account” button signified his acceptance of the Terms of Use Agreement, including the Arbitration Agreement contained therein. Mr. McGuire was explicitly informed that, by clicking on the purple button, he was agreeing to the Terms of Use Agreement, which could be easily accessed by means of a blue-highlighted hyperlink on the same webpage as the Create Your Account button. The Arbitration Agreement itself is presented in straightforward language in easily readable print of the same size as all other terms in the Terms of Use Agreement; nothing is hidden or obscured to the reader who desires to review its contents. See Grosvenor v. Qwest Corp., 854 F.Supp.2d 1021, 1030 (D. Colo. 2012) (terms in a click-wrap agreement must be “sufficiently conspicuous as to permit a reasonable user the opportunity to review them and either agree to them or to cancel the . . . service”).
From this record it is apparent that Mr. McGuire had clear notice of the Terms of Use Agreement and the entirety of its contents, which he was required to affirmatively acknowledge with his enrollment. His clicking on the “Create your Account” button, indicating his acceptance of the click-wrap agreement, is sufficient to form a contract-as many other courts have concluded in reviewing the specific CreditWorks sign-up process at issue here. See, e.g., McLees v. Experian Info. Sols., Inc., No. 2:23-cv-04580-SPG-KS, 2024 WL 135940, at *3 (C.D. Cal. Jan. 11, 2024); Abukar v. Experian Info. Sols., Inc., No. 22-cv-0855-bhl, 2023 WL 3394827, at *2 (E.D. Wis. April 11, 2023); Arciniega v. Experian Info. Sols., Inc., No. CV-23-00245-PHX-SPL, 2023 WL 6803084, at *3 (D. Ariz. Oct. 12, 2023); Cimillo v. Experian Info. Sols., Inc., No. 21 CV 9132 (VB), 2023 WL 2473403, at *7 (S.D.N.Y. Mar. 13, 2023); see also ECF No. 36 at 5-6 (collecting additional cases finding the same). Notably, the version of the Arbitration Agreement in effect when Mr. McGuire filed this lawsuit specifically and conspicuously apprised him of the requirement to arbitrate disputes arising under the FCRA. ECF No. 18-1 at 47.
Mr. McGuire offers no law, or supporting evidence, that mandates a different conclusion. He points to Sgouros v. TransUnion Corp., 817 F.3d 1029 (7th Cir. 2016), ECF No. 26 at 15 & passim, but that case is factually distinguishable from his own. What “cinche[d] the case” for the plaintiff in Sgouros was the fact that nothing in the clickwrap-agreement process advised the plaintiff that he was assenting to a contract:
But what cinches the case for Sgouros is the fact that TransUnion's site actively misleads the customer. The block of bold text below the scroll box told the user that clicking on the box constituted his authorization for TransUnion to obtain his personal information. It says nothing about contractual terms. No reasonable person would think that hidden within that disclosure was also the message that the same click constituted acceptance of the Service Agreement.Id. at 1035 (emphasis added). Here, by contrast, the webpage for the CreditWorks sign-up process specifically advised Mr. McGuire of his assent to a contract: “By clicking ‘Create Your Account,' I accept and agree to your Terms of Use Agreement, as well as acknowledge receipt of your Privacy Policy.” ECF No. 18-1 at 7 (underlining indicating blue hyperlinks in original; emphasis added). And it appears that all courts that have evaluated the CreditWorks enrollment process (with the exception of Austin, which is pending appeal) have found no subterfuge or lack of clarity in that process. As one court very recently summarized the core point:
Here, in between where Hanson entered his personal information and where he clicked the “Create Your Account” button, the webform stated in bold letters, set off from other paragraphs, “By clicking ‘Create Your Account': I accept and agree to your Terms of Use Agreement.” The words “Terms of Use Agreement” are further off-set in blue text. The webpage itself is uncluttered, and the hyperlink is both temporally and spatially coupled with the mechanism for manifesting assent- i.e., the register button. Thus, a reasonable smartphone user would know that more information would be found if he clicked upon the hyperlink.Hanson, 2024 WL 3509482, at *11 (cleaned up; internal citations omitted).
Mr. McGuire claims that he “never encountered” the Arbitration Agreement prior to this litigation, and that he has “no recollection” of the Terms of Use, ECF No. 26-1 ¶¶ 7-9, but these contentions raise no genuine dispute about the existence of a valid and enforceable agreement to arbitrate. First, these assertions are belied by a clear record demonstrating Mr. McGuire's affirmative assent to the Arbitration Agreement in his clicking the “Create Your Account” button and his subsequently not opting out of that Agreement. Second, if Mr. McGuire's point is that he did not read the Terms of Use Agreement-despite having multiple opportunities to do so-that decision does not suffice to invalidate his agreement. Under Colorado law, Mr. McGuire “cannot avoid contractual obligations by claiming that he . . . did not read the agreement.” Vernon, 857 F.Supp.2d at 1152 (quoting Loden v. Drake, 881 P.2d 467, 469 (Colo.App. 1994)). And it is obvious that this should be so, lest all contracts be subject to invalidation at the whim of a dissatisfied party. See, e.g., Martinez v. Capstone Restaurant Grp., LLC, No. 20-cv-01017, 2021 WL 1723776, at *3 (D. Colo. Mar. 31, 2021) (“Plaintiff's failure to recall executing the arbitration agreement does not raise a genuine dispute of material fact as to the existence of the agreement[.]”); Petrie, 360 F.Supp.3d at 1162 (“[G]eneral denials and statements that a user does not recall visiting a website or agreeing to arbitrate are insufficient to defeat arbitration.”).
The Arbitration Agreement is valid and enforceable.
C. Enforcement of the Arbitration Agreement by EIS
The next issue for the court to address is whether EIS may enforce the Arbitration Agreement. For the reasons that follow, the court concludes that it can.
EIS argues that its authority to enforce the Arbitration Agreement stems from its status as a party to the Agreement. EIS claims party status because it is defined as an “affiliate” of ECS under the Terms of Use Agreement. See ECF No. 18 at 16-17; see also ECF No. 18-1 at 14 (“For purposes of this arbitration provision, references to ‘ECS,' ‘you,' and ‘us' shall include our respective parent entities, subsidiaries, affiliates (including, without limitation, our service providers) . . .”); Ex. 3, ECF No. 18-1 at 45 (“The term ‘ECS' means . . . [its] affiliates (including, but not limited to, Experian Information Solutions, Inc.”)). As Mr. Smith declares, EIS has been an affiliate of ECS during the entire time Mr. McGuire has been enrolled in CreditWorks. Id. at 4, ¶ 6. The evidence further shows that, during that time, EIS has played a significant role in providing services under the Terms of Use. Specifically, it has “contributed to the services that CreditWorks subscribers receive by providing regular access to how information appears in their EIS credit files, including changes to their credit information.” Id. at 5, ¶ 8 (further stating that, pursuant to the Terms of Use, EIS provides credit information, including “credit report(s), credit risk score(s), credit monitoring, credit score monitoring and credit score tracking (including all the data and information contained therein), [and] the receipt of any alerts notifying consumers of changes to the information contained in their credit reports(s)”) (quoting Id. at 45) (cleaned up).
This undisputed evidence provides ample support for the conclusion that EIS is a party to the Arbitration Agreement and may directly enforce it, as courts routinely have found. In reviewing the same Arbitration Agreement in the same Terms of Use Agreement as that at issue here, the Ninth Circuit drilled down on the essential point:
The text of the arbitration provision binds plaintiffs to arbitrate with ECS and defines ECS to include ‘affiliates,' and Experian is an affiliate and was so when the plaintiffs entered into the agreement. That Experian was an affiliate at the time the contract was formed and that it plays a role in the larger agreement provide additional evidence that it assented to be bound and was not a mere third-party beneficiary.Meeks, 2022 WL 17958634, at *2 (concluding that, “[b]ecause the district court's denial of the motion to compel arbitration was the result of a legal error and the record is sufficiently developed to allow us to do so, we hold that Experian is a party to the arbitration provision”) (internal citations omitted); see also, e.g., Capps v. JPMorgan Chase Bank, N.A., No. 2:22-cv-806-DAD-JDP, 2023 WL 3030990, at *5 (E.D. Cal. Apr. 21, 2023) (observing that “[m]ultiple district courts have reached the same conclusion” that the Arbitration Agreement in the Terms of Use at issue here compels arbitration with EIS) (collecting cases); Alvarez v. Experian Info. Sols., Inc., 661 F.Supp.3d 18, 27 (E.D.N.Y. 2023) (upon review of the same Terms of Use, including the Arbitration Agreement, concluding that “[t]here is no reasonable basis to find that Plaintiff has not assented to arbitration with Experian”).
This court finds no justification for reaching a contrary conclusion here, and Mr. McGuire has identified none. The evidence presented by EIS is sufficient to establish that it has been an affiliate of ECS during the entire time that Mr. McGuire has been enrolled in CreditWorks and that it is a party to the Arbitration Agreement. The Arbitration Agreement therefore binds Mr. McGuire to arbitrate with EIS.
Because the court concludes that EIS may enforce the Arbitration Agreement as a party, it does not take up EIS's alternative argument that it is a third-party beneficiary to the Agreement. ECF No. 18 at 17-19.
D. Delegation of Arbitrability
Having concluded that there is a valid agreement to arbitrate between the parties, the court proceeds to consider whether the FCRA dispute here is within the scope of claims the parties agreed to arbitrate. First, though-as with the CarMax Arbitration Provision-the court must resolve the gateway question of arbitrability, i.e., whether particular claims fall within the ambit of the Arbitration Agreement. That question admits of a straightforward answer in light of the explicit, and broad, delegation clause in the Arbitration Agreement:
All issues are for the arbitrator to decide including, but not limited to, (i) all issues regarding arbitrability, (ii) the scope and enforceability of this arbitration provision as well as the Agreement's other terms and conditions, (iii) whether you or ECS, through litigation conduct or otherwise, waived the right to arbitrate, (iv) whether all or any part of this arbitration provision or Agreement is unenforceable, void or voidable including, but not limited to, on grounds of unconscionability, (v) any dispute regarding the payment of arbitration-related fees, (vi) any dispute related to the dispute Notice provisions in subparagraph (b) (above), and (vii) any dispute related to Mass. Arbitration (defined below). Pursuant to this agreement, the arbitrator has been delegated with, and possesses, exclusive authority to resolve all of the above-enumerated types of disputes.
ECF No. 18-1 at 47 (Terms of Use Agreement in effect when McGuire filed suit) (emphasis added); see also id. at 15 (“All issues are for the arbitrator to decide, including the scope and enforceability of this arbitration provision as well as the Agreement's other terms and conditions, and the arbitrator shall have exclusive authority to resolve any such dispute relating to the scope and enforceability of this arbitration provision or any other term of this Agreement . . .”) (Terms of Use Agreement in effect when McGuire enrolled in CreditWorks) (emphasis added).
In this provision, the parties have unequivocally manifested their intent to delegate issues of arbitrability to the arbitrator. The court therefore finds that any question of whether Mr. McGuire's FCRA claims are encompassed within the Arbitration Agreement must be decided by the arbitrator. Henry Schein, 586 U.S. at 68 (where the question of arbitrability has been validly delegated to the arbitrator a “court possesses no power to decide the arbitrability issue[,] . . . even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.”). The court's analysis of the arbitrability question perforce ends here.
Because EIS has not alternatively addressed whether the FCRA claims would be within the scope of the Arbitration Agreement, this court also does not analyze that question.
* * *
Because EIS and Mr. McGuire have a valid Arbitration Agreement, Mr. McGuire's dispute against EIS must be submitted to arbitration. This court therefore respectfully RECOMMENDS that EIS's Motion to Compel Arbitration be granted.
IV. Administrative Closure
Having determined that the claims against CarMax and EIS must proceed to arbitration, and because both entities have requested a stay pending the completion of those proceedings, the court must concurrently recommend that the case be stayed. See 9 U.S.C. § 3; cf. Smith v. Spizzirri, 601 U.S. 472, 475-76 (2024) (“When a federal court finds that a dispute is subject to arbitration, and a party has requested a stay of the court proceeding pending arbitration, the court does not have discretion to dismiss the suit on the basis that all the claims are subject to arbitration.”). With that determination, the court must also choose between a stay and administrative closure of this action, which the Tenth Circuit has construed to be “the practical equivalent of a stay.” Quinn v. CGR, 828 F.2d 1463, 1465 n.2 (10th Cir. 1987).
In evaluating the choice between a stay and administrative closure, the court begins by recognizing that it is uncertain when the arbitration proceedings will be completed. Administrative closure is a particularly suitable mechanism to employ “when a case would otherwise be stayed for an indefinite amount of time.” Talmadge v. Berkley Nat'l Ins. Co., 687 F.Supp.3d 1089, 1094 (D. Colo. 2023) (citing Garcia v. State Farm Mut. Fire & Cas. Co., No. 20-cv-02480-PAB-MEH, 2021 WL 4439792, at *6 (D. Colo. 2021)); see also Hartford Life & Accident Ins. Co. v. Nickal, No. 17-cv-02556-MSK-MJW, 2018 WL 1173150, at *1 (D. Colo. Mar. 6, 2018) (finding administrative closure appropriate because it was unclear when a parallel criminal proceeding would be adjudicated). Under these circumstances, this court finds that administrative closure pursuant to D.C.COLO.LCivR 41.2, pending the completion of the two arbitrations, is the more appropriate course. Id. (“A district judge or a magistrate judge exercising consent jurisdiction may order the clerk to close a civil action administratively subject to reopening for good cause.”).
In so finding, the court must resolve a related issue-one which neither CarMax nor EIS addresses head-on-regarding the scope of the administrative closure and whether it ought to apply to Defendant Equifax, who has answered the complaint and who does not claim to be a party to an arbitration agreement with Mr. McGuire. See ECF No. 19 at 3 (noting that “CarMax takes no position on whether the stay would apply broadly to the entire case, including the other two defendants”); ECF No. 14 at 1 (stating that Equifax has represented that it does not oppose a stay of this action). On the one hand, the FAA allows for concurrent litigation when some issues are arbitrable. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985). On the other, where, as here, some but not all parties' claims are subject to arbitration, the Supreme Court has left it to the discretion of the district court to stay or proceed with litigation on the non-arbitrable claims. See Moses H. Cone Mem'lHosp., 460 U.S. at 20 n.23 (recognizing that, “[i]n some cases, of course, it may be advisable to stay litigation among the non-arbitrating parties pending the outcome of the arbitration,” and leaving that decision to the district court “as a matter of its discretion to control its docket”) (citing Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)).
No party, including Mr. McGuire, has suggested that the case against Equifax should continue while the other claims are being arbitrated.
Here, the court begins its discretionary analysis by recognizing that Mr. McGuire is suing EIS and Equifax-who are among the “three predominant consumer [credit] reporting agencies,” see ECF No. 1 ¶ 2-for alleged violations of the FCRA. Id. ¶¶ 114-129 (Counts I and II brought against both EIS and Equifax). To be sure, each of these entities took some independent actions with regard to Mr. McGuire. But it is also clear from the complaint that his claims hinge on EIS's and Equifax's similar responses to his report that the CarMax “charge-off,” which both entities reported and refused to correct, was erroneous. Id. ¶ 38 (“Experian and Equifax, in mid January 2023, dealt a blow by verifying the erroneous charge-off.”); Id. ¶ 39 (“the responses from both [Equifax and Experian] remained unchanged, continuing to uphold the incorrect charge-off”). The question of liability of both EIS or Equifax thus turns on substantially the same actions, evaluated pursuant to the same legal theory. Under these circumstances, it may be that the arbitrator's determination as to EIS will have some preclusive effect as to Mr. McGuire's claims against Equifax. The Tenth Circuit has applied collateral estoppel to an arbitration award. Coffey v. Dean Witter Reynolds Inc., 961 F.2d 922, 927 & n.4 (10th Cir. 1992) (“The doctrine of collateral estoppel . . . bars relitigation of legal or factual issues that have previously been decided through arbitration.”); see also Adams v. FedEx Ground Package Sys., Inc., 546 Fed.Appx. 772, 777 (10th Cir. 2013) (affirming application of collateral estoppel to an arbitrating plaintiff); MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (“As for finality, a valid and final award by arbitration generally has the same effect under the rules of res judicata as a judgment of a court.”). The issue of claim preclusion can be addressed by this court, if appropriate, upon the conclusion of the arbitration proceedings.
The undersigned therefore finds that administrative closure of the entire case, as against all Defendants, is appropriate., and respectfully RECOMMENDS that this action be administratively closed in its entirety, as to all parties, pursuant to Local Rule 41.2. This closure will allow the parties to resolve the claims in the arbitration proceedings and to give Mr. McGuire an opportunity to determine whether he wishes to pursue further litigation in this court on his claims against Equifax.
CONCLUSION
For the foregoing reasons, this court respectfully RECOMMENDS that the Motions to Compel Arbitration (ECF Nos. 14, 18) be granted and that the case be administratively closed in accordance with D.C.COLO.LCivR 41.2. The court further RECOMMENDS that the administrative closure encompass all parties and all claims in this lawsuit, and that the parties be advised that the court will not find good cause to reopen this matter while the arbitrations involving Plaintiff and Defendant CarMax, and Plaintiff and Defendant EIS, are pending.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).