BRYANT v. JPMORGAN CHASE BANK 10 (2025)

ORDER GRANTING DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S MOTION TO COMPEL ARBITRATION [ECF NO. 33]

Before the Court is the Motion to Compel Arbitration (ECF No. 33-1 (“Motion”)) filed by Defendant Experian Information Solutions, Inc. (“Experian”). The Court has read and considered the Motion and concluded that it is suitable for decision without oral argument. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. Having considered the parties’ submissions, the relevant law, and the record in this case, the Court GRANTS the Motion.

I. BACKGROUND

In the Complaint filed on March 8, 2024, Plaintiff Michael Bryant (“Plaintiff”) alleges that he was the victim of identity theft, wherein an unidentified perpetrator opened a credit card account in his name with Defendant JPMorgan Chase Bank, N.A. (“Chase Bank”) and racked up more than $8,000 in unauthorized charges. (ECF No. 1 (“Complaint”) ¶¶ 15-17). Plaintiff made multiple written requests to Chase Bank and Experian (collectively, “Defendants”) to attempt to resolve the issue, including requests with Experian in the manner described in the Fair Credit Reporting Act (FCRA). (Id. ¶ 19). Against Chase Bank, Plaintiff brings two claims under the FCRA and one under the California Consumer Credit Reporting Act (CCRA), alleging that Chase Bank failed to comply with its legal obligations to correct the account item. (Id. ¶¶ 20, 31, 37, 45). In the alternative, Plaintiff brings claims under the FCRA and CCRA against Experian, alleging that it failed to transmit Plaintiff's dispute to Chase Bank or otherwise failed to take appropriate actions in response to information received from Plaintiff. (Id. ¶¶ 21, 49, 54). Experian answered the Complaint on May 10, 2024, and Chase Bank answered on June 7, 2024. (ECF Nos. 15, 22).

Experian then filed the instant Motion on November 12, 2024, requesting that the claims against Experian be adjudicated in arbitration and that the action be stayed pending arbitration. (Mot. at 12). The Motion is supported by the Declaration of Dan Smith, the Director of Product Operations at Experian Consumer Services (“ECS”). See (ECF No. 33-2 (“Smith Declaration”)). In the sworn declaration, Smith states that Plaintiff enrolled in Experian's “CreditWorks” credit monitoring service on August 9, 2023. (Id. ¶ 3). Smith asserts that to enroll, Plaintiff had to complete a webform, which required him to enter personal information and click the “Create Your Account” button. (Id.). Next to the box to enter his e-mail address and password was the following statement: “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” was bolded and in blue text and, if clicked, would present the full text of the agreement. (Id. ¶ 4). Contained within the Terms of Use Agreement was an Arbitration Agreement, which requires arbitration of “all disputes and claims” between Plaintiff and ECS that “arise out of or relate to this Agreement.” (Id. ¶ 6); (ECF No. 33-4 (“Arbitration Agreement”) at 6). The Arbitration Agreement defined “ECS” to include “its predecessors in interest, successors and assigns, [and] affiliates (including, but not limited to, Experian Information Solutions, Inc.).” (Arb. Agreement at 2).

Plaintiff timely opposed the Motion on November 26, 2024, (ECF No. 34 (“Opposition”)), and separately filed objections to the Smith Declaration, (ECF No. 35 (“Objections”)). Experian replied in support of the Motion on December 4, 2024. (ECF No. 36 (“Reply”)). Chase Bank has not participated in the briefing on the Motion.

II. LEGAL STANDARD

The Federal Arbitration Act (the “Act”) provides that written arbitration agreements in contracts “evidencing a transaction involving commerce ․ shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (quoting 9 U.S.C. § 2). A court's role under the Act is to determine “(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Kilgore v. KeyBank, Nat'l Ass'n, 718 F.3d 1052, 1058 (9th Cir. 2013) (citation omitted). “If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). “By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).

In assessing the existence of an agreement to arbitrate, the Court may consider “the pleadings, documents of uncontested validity, and affidavits submitted by either party.” Chien v. Bumble Inc., 641 F. Supp. 3d 913, 932 (S.D. Cal. 2022) (citation omitted). Courts apply “a standard similar to that used in resolving summary judgment under Federal Rule of Civil Procedure 56.” Hansen v. Rock Holdings, Inc., 434 F. Supp. 3d 818, 824 (E.D. Cal. 2020). Thus, “[i]n considering a motion to compel arbitration which is opposed on the ground that no agreement to arbitrate was made, a district court should give to the opposing party the benefit of all reasonable doubts and inferences that may arise.” Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796, 804 (N.D. Cal. 2004). “Only when there is no genuine issue of material fact concerning the formation of an arbitration agreement should a court decide as a matter of law that the parties did or did not enter into such an agreement.” Id.

III. DISCUSSION

A. Existence of Agreement

While Plaintiff does not explicitly contend that he did not enter into the agreement, he contests the adequacy of proof offered by Experian as to the existence of an agreement. He argues that Experian has failed to produce the alleged agreement and therefore lacks proof that any such agreement exists. (Opp. at 3). Plaintiff also contends that Smith's affidavit is inadmissible because he lacks personal knowledge of the circumstances of Plaintiff's alleged consent to arbitrate. (Id. at 4). Compelling arbitration under such circumstances, he argues, would violate due process.

The Court concludes that Experian has offered sufficient proof to establish the existence of an agreement to arbitrate. Experian provided a printout of the webform that was active at the time Plaintiff allegedly completed it, showing a clickable link to the Terms of Use Agreement. (ECF No. 33-3). Experian also provided a copy of the Terms of Use Agreement that was in effect at that time, including the relevant arbitration provisions. (ECF No. 33-4). While Plaintiff contends that Experian has not put forth the actual agreement that he signed, Experian has in fact presented evidence of a “browsewrap” agreement, consisting of “terms that are disclosed only through a hyperlink” to which “the user supposedly manifests assent ․ simply by continuing to use the website.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022). While such agreements are subject to increased scrutiny, Plaintiff contests only the existence of the agreement, not its enforceability.

Proof of the existence of the agreement here rests on the Smith Declaration. Under Rule 56, “[a]n affidavit or 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 affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “[T]he requirement of personal knowledge imposes only a minimal burden on a witness.” Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (internal quotation marks and citation omitted).

Smith states in his affidavit that he is the “Director of Product Operations” for ECS, which requires him to be “familiar with Experian's electronic databases that store consumer enrollment information, including the webpages a consumer would have encountered to complete their enrollment into CreditWorks.” (Smith Decl. ¶ 1). Smith's role thus provides him with both the means and the knowledge to access consumer records showing when consumers enrolled in CreditWorks. See In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000) (“Personal knowledge may be inferred from a declarant's position.”). Based on this familiarity, Smith explains that he is “able to confirm the consumer's membership details, such as the date and time of the enrollment, the version of the Terms of Use they agreed to, and the exact path the consumer encountered when completing their enrollment into CreditWorks.” (Smith Decl. ¶ 1). Thus, Smith attests—under penalty of perjury—that Plaintiff enrolled in CreditWorks on August 9, 2023, and that to do so, he would have had to agree to the Terms of Use containing the Arbitration Agreement. (Id. ¶ 3). Smith specifically asserts that these statements “are of my own personal knowledge.” (Id. ¶ 1). Under Federal Rule of Evidence 602, “[e]vidence to prove personal knowledge may consist of the witness's own testimony.” These statements are thus sufficient to infer Smith's personal knowledge. In so concluding, the Court joins numerous other courts that have reached the same conclusion under identical circumstances. See, e.g., Myers v. Experian Inf. Sols. Inc., 734 F. Supp. 3d 912, 919 (D. Ariz. 2024); Oatway v. Experian Inf. Sols., Inc., No. 2:24-cv-00523-LK, 2024 WL 4879822, at *4-5 (W.D. Wash. Nov. 25, 2024); Scribner v. Trans Union LLC, 738 F. Supp. 3d 1301, 1305-06 (E.D. Cal. 2024); Clark v. Trans Union LLC, No. 2:24-cv-00783 WBS CKD, 2024 WL 4044130, at *2-3 (E.D. Cal. Sep. 4, 2024).

Plaintiff does nothing to create a genuine issue of material fact as to the existence of an agreement. Plaintiff does not assert that he did not sign up for CreditWorks. In fact, Plaintiff has not provided a sworn affidavit contesting any aspect of Smith's affidavit. Thus, there is no genuine dispute of material fact, and the Court may decide as a matter of law that the parties entered into an agreement to arbitrate. See Concat LP, 350 F. Supp. 2d at 804.

Plaintiff's cases do not support a contrary conclusion. Plaintiff first cites to Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175-79 (9th Cir. 2014), to argue that proof of mutual assent to a contract requires clear evidence, such as a signed acknowledgement or an electronic signature. (Opp. at 3). But parties can also manifest assent “through conduct.” Berman, 30 F.4th at 855. These principles apply equally to “contracts formed online,” such that “if a website offers contractual terms to those who use the site, and a user engages in conduct that manifests her acceptance of those terms, an enforceable agreement can be formed.” Id. at 856.

Plaintiff next points to Osborn v. Paul Revere Life Insurance Co., 720 F. Supp. 3d 900, 912 (E.D. Cal. 2024), to argue that Smith was acting as a “reader witness” without firsthand knowledge of the underlying documents. (Opp. at 4). But as discussed above, Smith has established personal knowledge of the contents of the agreement to arbitrate by stating that he reviewed CreditWorks membership enrollment data, “including data specific to Plaintiff's membership.” (Smith Decl. ¶ 3). Moreover, the court in Osborn rejected the argument that the witness was only acting as a “document-reader,” noting that “on a motion for summary judgment, the Court is concerned principally with the admissibility of the content—and not the form—of the facts asserted.” Osborn, 720 F. Supp. 3d at 912. Given the identical standard applied to motions to compel arbitration, the same is true here.

Finally, Plaintiff points to United States v. Pena-Espinoza, 47 F.3d 356 (9th Cir. 1995), for the proposition that it is improper for a declarant to interpret or summarize documents they had no direct involvement with. (Opp. at 4). Pena-Espinoza, which involved an FBI agent reviewing transcripts of conversations in which he had not participated and offering his opinions as to the defendants’ guilt, is not analogous to the present circumstances. The court's concern in that case was with the likelihood that the agent's testimony would “usurp[ ] the jury's function.” Pena-Espinoza, 47 F.3d at 360. No such concerns are relevant here.

Accordingly, the Court credits Smith's affidavit and concludes that there is a valid Arbitration Agreement here.

B. Enforcement by Experian

Plaintiff's remaining argument is that the Arbitration Agreement applies only to ECS and that Experian cannot enforce the agreement on behalf of an affiliate. Plaintiff points to Knutsen v. Macy's West Stores, Inc., No. 16-cv-0679, 2016 WL 1610980 (N.D. Cal. Apr. 22, 2016),¹ to argue that courts “have consistently rejected attempts to infer agreements from hypothetical scenarios or generalized business practices rather than affirmative evidence.” (Opp. at 5).

Contrary to Plaintiff's argument, Experian's ability to enforce the Arbitration Agreement is specifically contemplated within the terms of the agreement. The Arbitration Agreement states that “ECS and you agree to arbitrate all disputes and claims between us that arise out of or relate to this Agreement.” (ECF No. 33-4 at 6). The Arbitration Agreement defines “ECS” to “have the same meaning” as it is defined in the “Overview and Acceptance of Terms section above.” (Id.). The Overview and Acceptance of Terms section states that “[t]he term ‘ECS’ means ConsumerInfo.com, Inc. ․, its predecessors in interest, successors and assigns, [and] affiliates (including, but not limited to, Experian Information Solutions, Inc.).” (Id. at 2). Thus, the Arbitration Agreement states that it applies to disputes and claims that arise between Experian Information Solutions, Inc. and Plaintiff. As the Ninth Circuit recently concluded under similar circumstances, “[t]he 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.” Meeks v. Experian Inf. Servs., Inc., Nos. 21-17023, 22-15028, 2022 WL 17958634, at *2 (9th Cir. Dec. 27, 2022). Accordingly, “Experian is a party to the arbitration provision” and may enforce its terms. Id.

C. Motion to Stay

Experian requests that the action be stayed pending arbitration. However, Plaintiff has asserted distinct claims against Chase Bank, which is not a party to the Arbitration Agreement. Accordingly, the Court must determine whether to stay the entire action, or whether the claims against Chase Bank can proceed simultaneously.

“Where some litigants are not parties to the arbitration agreement, the court must nonetheless stay the entire action if arbitration of claims against a party to an arbitration agreement is likely to resolve factual questions coextensive with claims against nonparties to that arbitration agreement.” Jaffe v. Zamora, 57 F. Supp. 3d 1244, 1248 (C.D. Cal. Oct. 23, 2014) (internal quotation marks and citation omitted). Here, Plaintiff alleges alternative theories of liability against Experian and Chase Bank arising out of the same set of as-of-yet undiscovered facts. (Complaint ¶¶ 20-21). The claims subject to arbitration are therefore likely to require the resolution of factual questions overlapping with those not subject to arbitration. As such, to avoid duplication of efforts and potentially inconsistent results, a stay of the entire action is warranted.²

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the Motion. This action will be stayed pending completion of the arbitration. The parties are also ordered to file a joint status report with the Court every six months apprising the Court of the status of arbitrating Plaintiff's claims. The parties must also promptly notify the Court once arbitration of Plaintiff's claims has concluded.

IT IS SO ORDERED.

FOOTNOTES

1.   The citation provided by Plaintiff for Knutsen leads to an unrelated case, and the Court has otherwise been unable to locate this decision. As such, the Court will disregard the citation. Plaintiff's counsel is cautioned to verify all citations provided to the Court.

2.   Given the Court's order, Plaintiff's ex parte application to continue discovery (ECF No. 39) and Plaintiff and Experian's joint stipulation to stay discovery (ECF No. 40) are denied as moot.

SHERILYN PEACE GARNETT, UNITED STATES DISTRICT JUDGE