Opinion
23 Civ. 11028 (KPF)
07-31-2024
LONNY DITELLA, Plaintiff, v. TRANSUNION, LLC and EXPERIAN INFORMATION SOLUTIONS, INC., Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA, United States District Judge
Plaintiff Lonny DiTella (“Plaintiff”), proceeding pro se, brings this action against, among others, Experian Information Solutions, Inc. (“EIS” or “Defendant”), alleging a violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681-1681x. Now before the Court is Defendant's motion to compel this matter to arbitration and stay the action as to it until arbitration has been completed. For the reasons stated below, the Court grants Defendant's motion.
Plaintiff also brings claims against a second defendant, TransUnion LLC (“TransUnion”). TransUnion filed answers to Plaintiff's Complaint and Amended Complaint before the case was transferred to this District. (See Dkt. #8, 26, 28). Because TransUnion is not implicated by the instant motion to compel, the Court references the company only as necessary in this Opinion.
This Opinion draws its facts from the Amended Complaint (“AC” (Dkt. #17)) and from the Declaration of Dan Smith (Dkt. #46-2 (“Smith Decl.”)), submitted in support of Defendant's motion to compel, along with certain exhibits attached thereto (“Smith Decl., Ex. [ ]”). For ease of reference, the Court refers to Defendant's memorandum of law in support of its motion to compel arbitration as “Def. Br.” (Dkt. #46-1).
A. Factual Background
1. Plaintiff's Allegations
Plaintiff is a Jasper Credit Card customer who alleges that he is a victim of identity theft. (AC 2-3). Since 2021, Plaintiff has had a Jasper credit card account, which reported monthly to Defendant TransUnion. (Id.).
Defendant EIS is a credit reporting agency (“CRA”) that engages in the business of maintaining and reporting consumer credit card information. On August 19, 2022, Plaintiff enrolled in CreditWorks. (Smith Decl. ¶ 3). CreditWorks is an online service operated by Experian Consumer Services (“ECS”) that provides consumers access to their credit reports. Defendant is an affiliate of ECS, as both entities are wholly-owned subsidiaries of Experian Holdings, Inc. (Id. ¶ 2).
Plaintiff alleges that, in 2022, over $3,000 of fraudulent charges were made to his credit card as a result of the theft of his identity. (AC 3). In response, Plaintiff reported the fraudulent transactions to Jasper Credit Card and requested that the Social Security Administration (the “SSA”) change his social security number, which request the SSA granted. (Id. at 3-4). After receiving a new social security number, Plaintiff contacted Defendant - in whose credit reporting service Plaintiff had enrolled - to have his social security number updated on his credit report. (Id. at 4). Plaintiff asserts that Defendant failed to properly update his social security information and, as a result, harmed Plaintiff's credit report. (Id. at 6).
2. Plaintiff's CreditWorks Account
According to Dan Smith, the Director of Product Operations at ECS, Plaintiff was required to complete a single webform in order to enroll successfully in CreditWorks. (Smith Decl. ¶¶ 1, 3). The form required Plaintiff to enter his personal information - i.e., his name, address, phone number, and e-mail address. (Id.). After he entered his personal information, Plaintiff had to click the “Create Your Account” button on the webform in order to enroll. (Id.). Immediately below the boxes to enter his e-mail address and password, was the following disclosure: “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., Ex. 1).
The phrase “Terms of Use Agreement” in the disclosure was off-set in blue text and, if clicked, would have presented the consumer with the full text of the agreement. (Smith Decl. ¶ 4). That is, the phrase “Terms of Use Agreement” in the disclosure was a full-text hyperlink to the Terms of Use. (Id.). Thus, before clicking the “Create Your Account” button, the consumer could view the entire text of the Terms of Use Agreement by clicking on the blue-highlighted hyperlink “Terms of Use Agreement.” (Id.). When a consumer clicked on the “Terms of Use Agreement” hyperlink, an additional window would open within the consumer's web browser containing the entire text of the Terms of Use Agreement. (Id.).
After entering his information, Plaintiff clicked the “Create Your Account” button, thereby accepting and agreeing to the Terms of Use Agreement. (Smith Decl. ¶ 5). Plaintiff would not have been able to successfully enroll in CreditWorks unless he had clicked that button. (Id.). After enrolling, Plaintiff has continuously remained a CreditWorks member and continued to use the service, receiving credit alerts through his membership after the version of the Terms of Use Agreement that was in effect at the time he filed this lawsuit came into effect. (Id.).
Every version of the Terms of Use Agreement that has been in effect during the period of Plaintiff's enrollment in CreditWorks contains an arbitration provision (the “Arbitration Agreement”), which if invoked requires him to arbitrate, among other things, all claims against “ECS” that “relate to” or “arise out of” his membership with CreditWorks. (Smith Decl. ¶ 6). The Arbitration Agreement and the “Overview and Acceptance of Terms” section of the Terms of Use Agreement both define “ECS” to include its “affiliates (including, but not limited to, Experian Information Solutions, Inc.)[.]” (Id.). During the entire time that Plaintiff has been enrolled in CreditWorks, EIS has been an affiliate of ECS. (Id.). Additionally, the Arbitration Agreement expressly incorporates the rules of the American Arbitration Association (the “AAA”). (Id.).
What is more, every version of the Terms of Use Agreement in effect during Plaintiff's enrollment in CreditWorks has had a section entitled “Amendments,” which advised Plaintiff that he would be bound by the then-current Terms of Use Agreement each time he “order[ed], access[ed], or use[d]” any of the services or websites described in the Agreement: “Each time you order, access or use any of the Services or Websites, you signify your acceptance and agreement, without limitation or qualification, to be bound by the then current Agreement.” (Smith Decl. ¶ 7).
At all times relevant to this action, EIS “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 file information.” (Smith Decl. ¶ 8). Further, all CreditWorks subscribers are required to provide written authorization under the FCRA to obtain their credit report and/or credit scores on a recurring basis from EIS through CreditWorks. (Id.). The Terms of Use Agreement covers the provision of “Services,” which is defined to include services to which EIS contributed as the provider of credit information - including CreditWorks and the provision of “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 report(s).” (Id.).
B. Procedural Background
On July 31, 2023, Plaintiff commenced an action pro se in Albany City Small Claims Court against TransUnion alleging violations of the FCRA. (Dkt. #2). TransUnion removed the action to the United States District Court for the Northern District of New York on August 29, 2023, citing the existence of federal question jurisdiction. (Dkt. #1 (Notice of Removal)). With permission from that court, Plaintiff filed an amended complaint naming Equifax Information Services, LLC (“Equifax”), and Experian Information Solutions Inc. as additional defendants. (Dkt. #17).
On November 3, 2023, the court ordered Plaintiff to show cause as to “why this action should not be sua sponte transferred to the Southern District of New York (or any other district where venue lies),” as it appeared that venue in the Northern District of New York was improper. (Dkt. #41). Plaintiff opposed transfer to this District, citing his status “as a member of the Hebrew community,” and referencing “ongoing violence and protests in New York City against the Jewish People because of the war going on in Israel with the Palestinians.” (Dkt. #42; see also Dkt. #45). Defendant Equifax did not respond to the order to show cause, but instead sought leave of the court to file a motion to dismiss. (Dkt. #43). Defendant TransUnion supported transfer of the case to this District. (Dkt. #44).
Pursuant to a stipulation of dismissal, the action was dismissed with prejudice as to Defendant Equifax. (Dkt. #53).
On November 21, 2023, Defendant EIS filed a motion to compel arbitration. (Dkt. #46). On December 8, 2023, Plaintiff submitted an extension request to oppose Defendant's motion to compel arbitration. (Dkt. #48). Subsequently, on December 22, 2023, this case was transferred to this District. (Dkt. #50). Following the case's transfer, on January 17, 2024, Defendant filed a reply memorandum of law in further support of its motion to compel arbitration. (Dkt. #54).
Because Plaintiff's extension request had not been ruled on prior to the case's transfer, this Court sua sponte provided Plaintiff additional time to file an opposition to Defendant's motion to compel. (Dkt. #57). However, the deadline by which Plaintiff was directed to file his opposition has passed and Plaintiff has yet to file any response to the motion. The Court therefore considers this motion to be fully briefed and unopposed.
DISCUSSION
A. Applicable Law
1. The FAA
The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”), “reflects a liberal federal policy favoring arbitration agreements and places arbitration agreements on the same footing as other contracts.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 73 (2d Cir. 2017) (internal quotation marks and citations omitted). Section 2 of the FAA provides, “[a] written provision in ... a contract ... to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract[.]” 9 U.S.C. § 2. Section 4 of the FAA allows a party to such an agreement to petition a district court for an order compelling arbitration where a counterparty “fail[s], neglect[s], or refus[es] ... to arbitrate” under the terms of an arbitration agreement. Id. § 4.
A court ruling on a petition to compel arbitration must decide: (i) whether the parties agreed to arbitrate, and, if so, (ii) whether the scope of that agreement encompasses the claims at issue. See Holick v. Cellular Sales of N.Y., LLC, 802 F.3d 391, 394 (2d Cir. 2015) (internal quotation marks and citations omitted). In resolving a motion to compel arbitration, the court applies a “standard similar to that applicable for a motion for summary judgment.” Meyer, 868 F.3d at 74 (internal quotations omitted). “[T]he court considers all relevant, admissible evidence submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, and draws all reasonable inferences in favor of the non-moving party.” Id. (internal quotation marks, alterations, and citations omitted). “If there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003) (citing 9 U.S.C. § 4). However, a party may not defeat a motion to compel arbitration through “general denials of the facts on which the right to arbitration depends.” Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995). In other words, “[i]f the party seeking arbitration has substantiated the entitlement by a showing of evidentiary facts, the party opposing may not rest on a denial but must submit evidentiary facts showing that there is a dispute of fact to be tried.” Id.
Where - as here - a motion for summary judgment is unopposed, summary judgment may still be denied “[i]f the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production[.]” Vt. Teddy Bear Co., Inc. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004). Further, in determining whether an unchallenged movant has met its burden, “the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement.” Id. Rather, the court must “be satisfied that the citation to evidence in the record supports the [movant's] assertion.” Id.
In accordance with the “strong federal policy favoring arbitration as an alternative means of dispute resolution,” a court must resolve any doubts concerning the scope of arbitrable issues “in favor of arbitrability.” Daly v. Citigroup Inc., 939 F.3d 415, 421 (2d Cir. 2019) (quoting State of New York v. Oneida Indian Nation of N.Y., 90 F.3d 58, 61 (2d Cir. 1996)), cert. denied, 140 S.Ct. 1117 (2020). In so doing, courts “will compel arbitration unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Id. (internal quotation marks and citation omitted).
2. Agreements to Arbitrate
The antecedent issue of whether parties have agreed to arbitrate is determined under state law. See Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002) (“Because an agreement to arbitrate is a creature of contract ... the ultimate question of whether the parties agreed to arbitrate is determined by state law.”). Under New York law, the party seeking arbitration must prove by a preponderance of the evidence that a valid arbitration agreement exists. Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional de Venezuela, 991 F.2d 42, 46 (2d Cir. 1993). A valid arbitration agreement requires “a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement[.]” In re Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 589 (1999). By signing a written instrument, a party creates presumptive evidence of its assent to enter into a binding agreement. See, e.g., Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 149 (2d Cir. 2004); Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 11 (1988) (holding that a party's signature generally creates a presumption that the party assented to the terms of the agreement).
Courts do not apply the presumption of arbitrability to “disputes concerning whether an agreement to arbitrate has been made.” Goldman, Sachs & Co. v. Golden Empire Sch. Fin. Auth., 764 F.3d 210, 215 (2d Cir. 2014) (quoting Applied Energetics, Inc. v. NewOak Capital Mkts., LLC, 645 F.3d 522, 526 (2d Cir. 2011)). That is because “[i]t is the court's duty to interpret and construe an arbitration provision, but only where a contract is ‘validly formed' and ‘legally enforceable.'” Kulig v. Midland Funding, LLC, No. 13 Civ. 4715 (PKC), 2013 WL 6017444, at *2 (S.D.N.Y. Nov. 13, 2013) (internal citations omitted); see also Application of Whitehaven S.F., LLC v. Spangler, 45 F.Supp.3d 333, 343 (S.D.N.Y. 2014).
B. Analysis
Defendant argues that, pursuant to the Terms of Use Agreement entered into by the Plaintiff when enrolling in CreditWorks, the Court should order Plaintiff to adjudicate his claims in arbitration before the AAA. (Def. Br. 1). Defendant further asserts that this action should be stayed until arbitration has been completed. (Id. at 3). For the reasons that follow, the Court agrees.
1. A Valid Agreement to Arbitrate Exists
The Court finds that, on the record before it, New York law should apply to this dispute, as Plaintiff was a New York resident at all relevant times and presumably used CreditWorks in New York and became aware of one or more of the alleged FCRA violations that serve as the basis for his suit in New York. (See Dkt. #49 at 2 (affirming that Plaintiff is a resident of New York)). See Kassim v. CVS Albany, LLC, No. 21 Civ. 2927 (PKC), 2022 WL 4357456, at *7 (E.D.N.Y. Sept. 20, 2022) (finding New York law governed where plaintiff was “a resident of New York, and for both relevant periods of his employment [in dispute] ... was located in New York”).
a. Plaintiff Agreed to the Terms of Use Agreement
To begin, the Court must assess if the parties entered into a valid agreement to arbitrate. “Whether one can be bound by an arbitration clause is usually determined by looking at generally accepted principles of contract law.” Gold, 365 F.3d at 149 (collecting cases). Pursuant to these principles, “a party is bound by the provisions of a contract that he signs, unless he can show special circumstances that would relieve him of such an obligation.” Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 845 (2d Cir. 1987), abrogated on other grounds by Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991). “[T]he party seeking to compel arbitration has the burden of demonstrating by a preponderance of the evidence the existence of an agreement to arbitrate.” Biggs v. Midland Credit Mgmt., Inc., No. 17 Civ. 340 (JFB), 2018 WL 1225539, at *8 (E.D.N.Y. Mar. 9, 2018) (citation omitted).
When reviewing agreements to arbitrate entered into over the internet, as is the case here, the Second Circuit has explained that the relevant inquiries are whether “the notice of the arbitration provision was reasonably conspicuous and manifestation of assent unambiguous as a matter of law.” Levy v. Credit Plus, Inc., No. 21 Civ. 5541 (KMK), 2023 WL 2644352, at *7 (S.D.N.Y. Mar. 27, 2023) (quoting Meyer, 868 F.3d at 76 (citation omitted)). In determining whether notice was reasonably conspicuous, the court must take the “perspective of a reasonably prudent [computer] user.” Meyer, 868 F.3d at 77 (citing Schnabel v. Trilegiant Corp., 697 F.3d 110, 124 (2d Cir. 2012)).
This standard is easily met here. When Plaintiff enrolled in CreditWorks, he (i) had clear notice of the Terms of Use Agreement at the time he enrolled; (ii) was admonished that, by clicking an adjacent button, he was agreeing to be bound by that Agreement; and (iii) clicked the button, thereby manifesting his assent to the Agreement. See, e.g., Meyer, 868 F.3d at 78-80 (finding that a similar account creation page in the Uber smartphone application provided reasonably conspicuous notice and would make clear to “[a] reasonable user ... that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not”); Fteja v. Facebook, Inc., 841 F.Supp.2d 829, 837 (S.D.N.Y. 2012) (observing that “clickwrap” agreements are a common type of web-based contract; they are formed when a user is presented with “a message on his or her computer screen” and is required to “manifest [ ] her assent to the terms”); Valelly v. Merrill Lynch, Pierce, Fenner & Smith Inc., 464 F.Supp.3d 634 (S.D.N.Y. 2020) (“The Second Circuit routinely enforces clickwrap agreements as valid and binding contracts, ‘for the principal reason that the user has affirmatively assented to the terms of agreement by clicking ‘I agree.'” (quoting Meyer, 868 F.3d at 75)).
Indeed, virtually every court to construe the CreditWorks signup process has concluded that the design and layout of the website placed users on notice that they were agreeing to be bound by the Terms of Use. See, e.g., Capps v. Experian Info. Sols., Inc., No. 22 Civ. 806 (DAD) (JDP), 2023 WL 3030990, at *3-*4 (E.D. Cal. Apr. 21, 2023) (“[T]he court finds that a reasonable user would have seen the notice and would have been able to locate the Terms of Use Agreement via the hyperlink.”); Levy, 2023 WL 2644352, at *7 (“Plaintiff was provided with reasonably conspicuous notice of the arbitration agreement in the 2019 [Terms of Use].”); Cimillo v. Experian Info. Sols., Inc., No. 21 Civ. 9132 (VB), 2023 WL 2473403, at *5-7 (S.D.N.Y. Mar. 13, 2023) (“The Court finds that the undisputed facts indicate the webpage design presented, and the language used in the July 2019 [Terms of Use], clearly and conspicuously communicated the terms of the Arbitration Agreement to plaintiff, and that plaintiff affirmatively indicated she agreed to them.”); but see Newton v. Experian Info. Sols., Inc., No. CV 623-059, 2024 WL 3451895, at *5 (S.D. Ga. July 18, 2024) (finding disputed issue of material fact regarding agreement to arbitrate where plaintiff averred, among other things, that she “did not click anything that [she] recall[s] indicating that [she] would be waiving [her] right to a jury trial”). Accordingly, the Court finds that Defendant has established by a preponderance of the evidence that a valid agreement to arbitrate exists.
b. The Arbitration Agreement Is Enforceable by EIS
Further, there can be no dispute that EIS is a party to the Arbitration Agreement in the CreditWorks Terms of Use Agreement. The “Overview and Acceptance of Terms” section defines ECS to include its affiliates, such as EIS. (Smith Decl., Ex. 2 (“For purposes of this Agreement, the terms “we,” “us,” or “ECS” refer to . . . [its] affiliates, agents, employees, and any of its third party service providers (including, without limitation, cloud service providers) who ECS uses in connection with the provision of the Services to you.”)). And the Arbitration Agreement clearly defines “ECS” to include its “affiliates (including ... Experian Information Solutions, Inc.)[.]” (Id., Ex. 3). Thus, as an affiliate of ECS, EIS is swept within the definitions of “ECS” and “us” under the Arbitration Agreement and is entitled to enforce the Arbitration Agreement that Plaintiff entered.
Many courts that have considered the issue have concluded the same. See, e.g., Meeks v. Experian Info. Sols., Inc., Nos. 21-17023, 22-15028, 2022 WL 17958634, at *2 (9th Cir. Dec. 27, 2022) (unpublished decision) (“Because 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 [EIS] is a party to the arbitration provision.”); Scribner v. Trans Union LLC, No. 23 Civ. 2722 (JAM) (CKD), 2024 WL 3274838, at *2 (E.D. Cal. July 2, 2024) (“EIS, as an affiliate of CIC and ECS, is encompassed by the arbitration agreement.”); Capps, 2023 WL 3030990, at *5-6 (“[T]he court concludes that defendant [EIS] was a party to the Arbitration Agreement.”); Levy, 2023 WL 2644352, at *6-7 (“[T]he Court agrees with Defendant [EIS] that it is an affiliate of ECS and a party to the contract.”); Alvarez v. Experian Info. Sols., Inc., 661 F.Supp.3d 18, 27 (E.D.N.Y. 2023) (“There is no reasonable basis to find that Plaintiff has not assented to arbitration with [EIS].”).
In sum, by (i) disclosing to users that they are agreeing to arbitrate with ECS's affiliates and (ii) requiring affirmative action by Plaintiff to assent to those terms, the Terms of Use Agreement, and its concomitant obligation that users arbitrate their claims against EIS, both bind Plaintiff to arbitration of claims within the scope of the Arbitration Agreement. See Levy, 2023 WL 2644352, at *6-7.
2. Plaintiff's Claims Appear to Fall Within the Scope of the Arbitration Agreement
Plaintiff's claims against EIS, which concern the reporting of allegedly mistaken credit information after Plaintiff requested that information be changed, would seem by their terms to fall within the scope of the Arbitration Agreement. However, should there be any dispute, that issue would be decided by an arbitrator. “Under the FAA, as interpreted by the Supreme Court, the general presumption is that the issue of arbitrability should be resolved by the courts.” Bar-Ayal v. Time Warner Cable Inc., No. 03 Civ. 9905 (KMW), 2006 WL 2990032, at *5 (S.D.N.Y. Oct. 16, 2006) (citation omitted). However, “[p]arties to an arbitration agreement can ... ‘agree to arbitrate gateway questions of arbitrability.'” Gingras v. Think Fin., Inc., 922 F.3d 112, 126 (2d Cir. 2019) (quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010) (quotation marks omitted)). Such questions include “whether the arbitration agreement applies to a particular dispute.” DDK Hotels, LLC v. Williams-Sonoma, Inc., 6 F.4th 308, 317 (2d Cir. 2021). “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so.” Id. (alterations, citations, and quotation marks omitted); see also NASDAQ OMX Grp., Inc. v. UBS Sec., LLC, 770 F.3d 1010, 1032 (2d Cir. 2014) (noting that the party seeking to compel arbitration of arbitrability bears the burden of establishing “clear and unmistakable expression of the parties' intent to submit arbitrability disputes to arbitration”).
In determining the parties' intent, “the arbitration agreement is determinative.” DDK Hotels, 6 F.4th at 318 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). When “parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to an arbitrator.” Contec Corp. v. Remote Sol., Co., Ltd., 398 F.3d 205, 208 (2d Cir. 2005). Similarly, “[b]road language expressing an intention to arbitrate all aspects of all disputes supports the inference of an intention to arbitrate arbitrability[.]” Metro. Life Ins. Co. v. Bucsek, 919 F.3d 184, 191 (2d Cir. 2019).
Here, the Arbitration Agreement, in relevant part, provides that “[a]ll 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[.]” (Smith Decl., Ex. 2). As have numerous courts before it, this Court finds that this provision - which delegates “all issues” to an arbitrator, including all questions regarding enforceability and scope - indicates a “clear and unmistakable intent” of the parties to submit arbitrability determinations to the arbitrator. Levy, 2023 WL 2644352, at *9; see also Coulter v. Experian Info. Sols., Inc., Civil Action No. 20-1814, 2021 WL 735726, at *4 (E.D. Pa. Feb. 25, 2021) (finding that the CreditWorks Terms of Use Agreement's delegation clause “constitutes a ‘clear and unmistakable' delegation clause under Henry Schein and delegates the exclusive authority to resolve ‘all issues' to the arbitrator, including the ‘scope and enforceability' of the Arbitration Provision” (citing Henry Schein Inc. v. Archer & White Sales Inc., 586 U.S. 63 (2019))); Alvarez, 661 F.Supp.3d at 28 (same).
CONCLUSION
Because the Court has determined that the Arbitration Agreement is valid and that the claims before it are at least arguably within the scope of that Agreement, the Court GRANTS Defendant EIS's motion to compel arbitration. In accordance with Defendant's request (Def. Br. 15-16), the Court hereby STAYS further judicial proceedings as between Plaintiff and Defendant EIS pending the completion of arbitration and ORDERS Plaintiff to arbitrate his claims against EIS. See Katz v. Cellco P'ship, 794 F.3d 341, 347 (2d Cir. 2015) (“[T]he text, structure, and underlying policy of the FAA mandate a stay of proceedings when all of the claims in an action have been referred to arbitration and a stay requested.”). The parties shall provide a status update on or before September 30, 2024, regarding the status of arbitration, and as directed by the Court thereafter.
The other remaining defendant, TransUnion, and Plaintiff are hereby ORDERED to file a joint letter providing the Court with an outline of proposed next steps for the case as to them on or before August 21, 2024.
The Clerk of Court is directed to mail a copy of this Opinion and Order to Plaintiff's address of record.
SO ORDERED.