1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 ROBERT CLARK SCRIBNER, No. 2:23-cv-02722-JAM-CKD 13 Plaintiff, ORDER GRANTING DEFENDANT 14 EXPERIAN INFORMATION SOLUTIONS, v. INC.’S MOTION TO COMPEL 15 ARBITRATION TRANS UNION LLC, et al., 16 Defendants. 17 18 Plaintiff Robert Scribner (“Plaintiff”) initiated this 19 action on November 21, 2023, against several defendants. Compl., 20 ECF No. 1. Defendant Experian Information Solutions, Inc. 21 (“Defendant” or “EIS”) now moves to compel arbitration. Def.’s 22 Mot. to Compel Arb., ECF No. 32. For the reasons set forth 23 below, the Court GRANTS Defendant’s motion and stays this action 24 as to EIS pursuant to 9 U.S.C. § 3.1 Defendant’s pending motion 25 to stay, ECF No. 36, is thus moot. 26 /// 27 1This motion was determined to be suitable for decision without 28 oral argument. E.D. Cal. L.R. 230(g). 1 I. ALLEGATIONS AND BACKGROUND 2 Plaintiff asserts multiple claims under the Fair Credit 3 Reporting Act, 15 U.S.C. § 1681, et seq., and the California 4 Credit Reporting Agencies Act, Cal. Civ. Code § 1785.14, et seq., 5 against defendants Equifax Information Services LLC, EIS, and 6 Trans Union LLC. Compl., ECF No. 1. Plaintiff alleges he 7 ordered credit reports from each defendant in or around June of 8 2023 in anticipation of obtaining an automobile loan. Id. ¶¶ 62- 9 64. To receive a credit report from Experian, Plaintiff created 10 an online account with Experian’s credit monitoring service, 11 CreditWorks. Plf.’s Decl., Ex. B to Opp’n, ECF No. 42-2 at ¶¶ 2- 12 6; Smith Decl., ECF No. 32-2 at ¶ 1. Upon reviewing the credit 13 reports, Plaintiff noticed they were inaccurate because they 14 contained another consumer’s information and credit history. 15 Compl. ¶¶ 67-73. Plaintiff alleges he reported these 16 inaccuracies to defendants, but they failed to take appropriate 17 action. Id. ¶¶ 75-80, 87. As a result, Plaintiff sustained 18 damages. E.g., id. ¶ 115. 19 EIS filed this motion to compel arbitration on the ground 20 that Plaintiff, by creating a CreditWorks account, agreed to 21 Defendant’s “Terms of Use Agreement,” which mandates arbitration. 22 Memo. of P. & A. (“Mot.”), ECF No. 32-1; Terms of Use Agreement, 23 Ex. 3 to Smith Decl., ECF No. 32-2. Plaintiff filed an Opp’n, 24 ECF No. 42, and Defendant replied. Reply, ECF No. 43. The 25 parties then provided supplemental authority, which the Court has 26 considered. ECF Nos. 47-51. Defendant also filed a motion to 27 stay this action until the Court ruled on the pending motion to 28 1 compel. 2 Mot. to Stay, ECF No. 36. 2 II. OPINION 3 A. Legal Standard 4 “A party aggrieved by the alleged failure, neglect, or 5 refusal of another to arbitrate under a written agreement for 6 arbitration may petition any United States district court . . . 7 for an order directing that such arbitration proceed in the 8 manner provided for in such agreement.” 9 U.S.C. § 4. A 9 district court's role under the Federal Arbitration Act (“FAA”) 10 is “limited to determining (1) whether a valid agreement to 11 arbitrate exists and, if it does, (2) whether the agreement 12 encompasses the dispute at issue.” Chiron Corp. v. Ortho 13 Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). 14 “In determining whether the parties have agreed to arbitrate 15 a particular dispute, federal courts apply state-law principles 16 of contract formation.” Berman v. Freedom Fin. Network, LLC, 30 17 F.4th 849, 855 (9th Cir. 2022) (citing First Options of Chi., 18 Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). If the district court 19 is “satisfied of the existence of a valid arbitration agreement, 20 the court must order the parties to proceed to arbitration in 21 accordance with the terms of the agreement.” Oberstein v. Live 22 Nation Ent., Inc., 60 F.4th 505, 510 (9th Cir. 2023) (citing 9 23 U.S.C. § 4). In contrast, if the district court is not 24 satisfied, then it “shall proceed summarily to the trial 25 thereof.” 9 U.S.C. § 4. Defendant, as the party seeking to 26 2Defendant previously filed a motion to compel arbitration and 27 motion to stay, ECF Nos. 23 (compel), 25 (stay), but it withdrew those motions before refiling the pending motions. Withdrawals, 28 ECF Nos. 29 (compel), 30 (stay). 1 compel arbitration, “bears the burden of proving the existence of 2 a valid arbitration agreement by the preponderance of the 3 evidence.” Bridge Fund Cap. Corp. v. Fastbucks Franchise Corp., 4 622 F.3d 996, 1005 (9th Cir. 2010). 5 B. Analysis 6 Plaintiff argues Defendant has not meet its burden of 7 showing the existence of a valid arbitration agreement because 8 (1) Defendant’s evidence is inadmissible and (2) mutual assent 9 was lacking, thus precluding a contractual agreement to 10 arbitrate. Opp’n at 2. 11 1. Mr. Smith’s Declaration is Admissible 12 In support of its motion to compel arbitration, Defendant 13 submits a declaration from Dan Smith, the Director of Product 14 Operations for ConsumerInfo.com (“CIC”), which does business as 15 Experian Consumer Services (“ECS”). See generally Mot. EIS, as 16 an affiliate of CIC and ECS, is encompassed by the arbitration 17 agreement. Smith Decl., ECF No. 32-2 at ¶ 2; Terms of Use 18 Agreement, Ex. 3 to Smith Decl., ECF No. 32-2 at 14. Plaintiff 19 argues Mr. Smith’s Declaration is inadmissible because he lacks 20 personal knowledge of the matters therein. Opp’n 7-12. Without 21 the declaration, Plaintiff contends Defendant cannot meet its 22 burden of demonstrating the parties entered into a valid 23 arbitration agreement. See id. 24 Mr. Smith has been employed by CIC for over 14 years. Smith 25 Decl. ¶ 1. His duties require him to be familiar with “how 26 consumers enroll, the forms they must complete to enroll . . . 27 webpages a consumer would have encountered to complete their 28 enrollment . . . [and] which links or button the consumer clicked 1 on,” among other areas. Id. Mr. Smith’s knowledge is based on 2 information “acquired in the course and scope of [his] job 3 responsibilities and through the review of pertinent documents 4 maintained as business records . . . .” Id. Mr. Smith declares 5 that when Plaintiff successfully enrolled in CreditWorks, he “had 6 to complete two webforms.” Smith Decl. ¶ 3 (emphasis added). 7 These webforms are attached to his declaration as “Exhibit 1” and 8 “Exhibit 2.” Id. Both exhibits are produced “as [they] would 9 have appeared when Plaintiff enrolled . . . .” Id. 10 Plaintiff attacks Mr. Smith’s declaration on the ground that 11 he lacks personal knowledge of what Plaintiff “accessed, saw, or 12 clicked on January 22, 2019,” because he “does not know 13 Plaintiff, has never met him, and was not present when 14 [Plaintiff] allegedly agreed to the terms and conditions to which 15 Experian seeks to bind him.” Opp’n at 8-9. This, however, is 16 unnecessary in this context. 17 Plaintiff admits he obtained a credit report from Experian 18 and successfully created a CreditWorks account. Compl. ¶¶ 64-65; 19 Plf.’s Decl., ECF No. 42-2 at ¶¶ 2-6. Mr. Smith’s declaration 20 establishes that Plaintiff could not have created an account 21 unless he completed both webforms, depicted in Exhibits 1 and 2, 22 and clicked the “Submit Secure Order” button on Exhibit 2. Smith 23 Decl. ¶¶ 3, 5. Contrary to Plaintiff’s argument, Mr. Smith is not 24 speculating as to what Plaintiff “accessed, saw, or clicked on 25 January 22, 2019,” but is rather asserting what was necessary to 26 enroll in CreditWorks. 27 Mr. Smith’s declaration establishes that he does have 28 personal knowledge of the enrollment process as evidenced by his 1 duties and responsibilities over the past 14 years as an employee 2 of CIC and having reviewed internal records and documents. Smith 3 Decl. ¶ 1. Also, “[p]ersonal knowledge may be inferred from a 4 declarant's position.” In re Kaypro, 218 F.3d 1070, 1075 (9th 5 Cir. 2000). 6 Contrary to Plaintiff’s contentions, Mr. Smith’s declaration 7 does not summarily assert personal knowledge, and the basis for 8 his knowledge is not solely derived from documents reviewed or 9 information received from others. Plaintiff has also not provided 10 legal authority from the Ninth Circuit requiring Mr. Smith to 11 specifically identify every document on which he may have relied. 12 Plaintiff’s reliance on Austin v. Equifax Info. Servs., LLC, No. 13 3:22CV707, 2023 WL 8646275 (E.D. Va. Dec. 14, 2023), an 14 unpublished decision from the Eastern District of Virginia that 15 is currently on appeal, is unavailing. 16 In sum, the Court finds Mr. Smith sufficiently demonstrated 17 he has personal knowledge of the facts asserted in his 18 declaration. Because Plaintiff admits he successfully created a 19 CreditWorks account, there is only one reasonable conclusion 20 given the enrollment process in effect at the time: Plaintiff was 21 presented with the website depicted in Exhibit 2 and clicked the 22 button entitled “Submit Secure Order.” The Court next considers 23 whether, by doing so, Plaintiff agreed to arbitrate his claims. 24 2. A Valid Arbitration Agreement Exists 25 Plaintiff argues an arbitration agreement does not exist 26 because there was no mutual assent as to that term. Opp’n at 13. 27 “[A] party cannot be required to submit to arbitration any 28 dispute which he has not agreed so to submit.” United 1 Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 2 (1960). “Courts look to state law to determine whether a valid 3 agreement to arbitrate exists.” Davis v. Nordstrom, Inc., 755 4 F.3d 1089, 1093 (9th Cir. 2014). “[U]nder California law, mutual 5 assent is a required element of contract formation.” Knutson, 771 6 F.3d at 565. “Mutual assent may be manifested by written or 7 spoken words, or by conduct, [] and acceptance of contract terms 8 may be implied through action or inaction.” Id. (internal 9 citations and quotations omitted). “Courts must determine 10 whether the outward manifestations of consent would lead a 11 reasonable person to believe the offeree has assented to the 12 agreement.” Knutson, 771 F.3d at 565. Because outward 13 manifestation is the focus, an offeree may be found to have 14 accepted an offer through conduct even if he is subjectively 15 unaware of all the offer’s terms. Id. However, “an offeree, 16 regardless of apparent manifestation of his consent, is not bound 17 by inconspicuous contractual provisions of which he was unaware, 18 contained in a document whose contractual nature is not obvious.” 19 Windsor Mills, Inc., 25 Cal.App.3d at 993. “These elemental 20 principles of contract formation apply with equal force to 21 contracts formed online.” Berman v. Freedom Fin. Network, LLC, 22 30 F.4th 849, 855–56 (9th Cir. 2022). 23 Contracts formed online generally fall into three 24 categories: (1) “‘clickwrap’ [] agreements, in which website 25 users are required to click on an ‘I agree’ box after being 26 presented with a list of terms and conditions of use,” Nguyen v. 27 Barnes & Noble Inc., 763 F.3d 1171, 1175–76 (9th Cir. 2014); (2) 28 “‘browsewrap’ agreements, where a website's terms and conditions 1 of use are generally posted on the website via a hyperlink at the 2 bottom of the screen,” id.; and (3) a hybrid variation where a 3 hyperlink of the terms and conditions are placed near a box that 4 a consumer must click to continue. Capps v. JPMorgan Chase Bank, 5 N.A., No. 222CV00806DADJDP, 2023 WL 3030990 (E.D. Cal. Apr. 21, 6 2023) (citing Berman v. Freedom Fin. Network, LLC, No. 18-cv- 7 01060-YGR, 2020 WL 5210912, at *2 (N.D. Cal. Sept. 1, 2020), 8 aff'd, 30 F.4th 849 (9th Cir. 2022); Berman, 30 F.4th at 864–68.) 9 Clickwrap and browsewrap agreements “fall on two ends of a 10 spectrum; courts routinely find clickwrap agreements enforceable 11 but are generally more reluctant to enforce browsewrap 12 agreements.” Capps, 2023 WL 3030990, at *3. Here, a hyperlink 13 to the Terms of Use Agreement appears before reaching the “Submit 14 Secure Order” button. Thus, this website design is “somewhat 15 like a browsewrap agreement in that the terms are only visible 16 via a hyperlink, but also somewhat like a clickwrap agreement in 17 that the user must do something else—click [‘Submit Secure 18 Order’]—to assent to the hyperlinked terms.” DeVries v. Experian 19 Info. Sols., Inc., No. 16-cv-02953-WHO, 2017 WL 733096, at *5 20 (N.D. Cal. Feb. 24, 2017) (citation omitted). 21 To reconcile the various ways a contract may be formed over 22 the internet, the Ninth Circuit has established the following 23 analytical framework:

24 Unless the website operator can show that a consumer has actual knowledge of the agreement, an enforceable 25 contract will be found based on an inquiry notice theory only if: (1) the website provides reasonably 26 conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, 27 such as clicking a button or checking a box, that unambiguously manifests his or her assent to those 28 terms. 1 Berman, 30 F.4th at 856. Here, Plaintiff denies having knowledge 2 of the arbitration provision in the Terms of Use Agreement. 3 Plf.’s Decl. ¶¶ 3-6. Thus, Defendant must prove (1) the website 4 provided reasonably conspicuous notice of Defendant’s Terms of 5 Use Agreement; and (2) Plaintiff took some action that 6 unambiguously manifested his assent to those terms. Berman, 30 7 F.4th at 856. 8 a. Reasonably Conspicuous Notice 9 Defendant must demonstrate the website provided Plaintiff 10 reasonably conspicuous notice that, by creating an Experian 11 account, he would be bound to arbitrate his claims. Berman, 30 12 F.4th at 856. “[T]o be conspicuous in this context, a notice 13 must be displayed in a font size and format such that the court 14 can fairly assume that a reasonably prudent Internet user would 15 have seen it.” Id. Where the font is gray and “so small that it 16 [is] ‘barely legible to the naked eye,” it has been found to be 17 the “antithesis of conspicuous.” Id. at 856-57. In contrast, a 18 hyperlink “distinguished from the surrounding text in bright blue 19 font” supports conspicuousness. Oberstein v. Live Nation Ent., 20 Inc., 60 F.4th 505, 516 (9th Cir. 2023). A hyperlink’s placement 21 is also relevant. Nguyen, 763 F.3d at 1177-78. 22 As mentioned above, Plaintiff completed two webforms to 23 successfully enroll in CreditWorks. Smith Decl. at ¶ 2. The 24 second webform, attached as Exhibit 2 to Mr. Smith’s Declaration, 25 is relevant here because it concluded the enrollment process and 26 it is where the hyperlink to the Terms of Use Agreement can be 27 found. 28 The top half of Exhibit 2 contains multiple text boxes for 1 Plaintiff to enter information regarding his identity and account 2 information. Ex. 2 to Smith Decl., ECF No. 32-2 at 9. The next 3 section contains several lines of bolded text in black font, 4 which begins with the following: “By clicking ‘Submit Secure 5 Order’: I accept and agree to your Terms of Use Agreement . . . 6 .” Id. The text “Terms of Use Agreement” is a hyperlink in blue 7 font, which contrasts with the surrounding text. By pressing the 8 hyperlink, Plaintiff would have been taken to the “Terms of Use 9 Agreement,” Smith Decl. ¶¶ 3, 6, which contains an arbitration 10 clause. Terms of Use Agreement, Ex. 3 to Smith Decl., ECF No. 11 32-2 at 14-15. The section addressing arbitration within the 12 Terms of Use Agreement begins with the following all-caps heading 13 in contrasting font (blue) that is larger than the surrounding 14 text: “DISPUTE RESOLUTION BY BINDING ARBITRATION.” See id. 15 Lastly, the bottom section of Exhibit 2 contains a button labeled 16 “Submit Secure Order.” By clicking this button, Plaintiff 17 completed the enrollment process and created his CreditWorks 18 account. Smith Decl. ¶¶ 3-5. 19 The hyperlink to the Terms of Use Agreement here is bold, 20 the same size as the surrounding text, and in a contrasting color 21 (blue). See Ex. 2, ECF No. 32-2 at 9. It is also placed before 22 the “Submit Secure Order” button. This formatting is 23 characteristically conspicuous. See, e.g., Capps, 2023 WL 24 3030990, at *4; Cf. Berman, 30 F.4th at 856-57. The arbitration 25 provision within the Terms of Use Agreement is also conspicuously 26 arranged. See Terms of Use Agreement, Ex. 3 to Smith Decl., ECF 27 No. 32-2 at 14-15. Plaintiff’s reliance on nonbinding case law 28 from other circuits is once again unpersuasive; several courts in 1 this Circuit have found substantially similar website designs 2 provided reasonably conspicuous notice. E.g., Capps, 2023 WL 3 3030990; Saucedo v. Experian Info. Sols., Inc., No. 1:22-CV- 4 01584-ADA-HBK, 2023 WL 4708015 (E.D. Cal. July 24, 2023); 5 DeVries, 2017 WL 733096; see also Mot. at 7-8 (collecting cases). 6 In sum, the Court finds that the website design here 7 provided reasonably conspicuous notice of the Terms of Use 8 Agreement given the hyperlink’s placement, color, size, and 9 boldness. Plaintiff, therefore, had constructive notice that he 10 would be bound to arbitrate his claims. 11 b. Unambiguous Manifestation of Assent 12 Defendant must next demonstrate Plaintiff unambiguously 13 manifested assent to be bound by the Terms of Use Agreement, 14 which contains an arbitration provision. Berman, 30 F.4th at 15 856. “A user's click of a button can be construed as an 16 unambiguous manifestation of assent only if the user is 17 explicitly advised that the act of clicking will constitute 18 assent to the terms and conditions of an agreement.” Id. at 857. 19 Because outward manifestation is the focus of the inquiry, 20 Knutson, 771 F.3d at 565, that Plaintiff did not subjectively 21 assent to arbitration is not dispositive. 22 Here, the website explicitly advised Plaintiff that if he 23 clicked “Submit Secure Order,” he agreed to the Terms of Use 24 Agreement. See Ex. 2, ECF No. 32-2 at 9. This admonition is 25 unambiguous; Plaintiff’s “outward manifestations of consent would 26 lead a reasonable person to believe [he] has assented to the 27 [Terms of Use Agreement.]” Knutson, 771 F.3d at 556. 28 /// 1 C. Conclusion 2 The Court finds Plaintiff received reasonably conspicuous 3 notice of the Terms of Use Agreement, and he unambiguously 4 manifested his assent to be bound by those terms, including 5 arbitration. Defendant has thus satisfied its burden of 6 demonstrating a valid arbitration agreement exists. 7 The Court has not considered whether the arbitration 8 provision in the Terms of Use Agreement encompasses Plaintiff’s 9 claims for two reasons. First, Plaintiff does not argue his 10 claims fall outside the scope of arbitrability. See generally 11 Opp’n. Second, pursuant to the arbitration provision here, 12 “[a]ll issues are for the arbitrator to decide, including the 13 scope and enforceability of this arbitration provision . . . and 14 the arbitrator shall have exclusive authority to resolve any such 15 dispute relating to the scope and enforceability of this 16 arbitration provision . . . .” Terms of Use Agreement, Ex. 3 to 17 Smith Decl., ECF No. 32-2 at 15. “When the parties' contract 18 delegates the arbitrability question to an arbitrator, the courts 19 must respect the parties' decision as embodied in the contract.” 20 Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65 21 (2019). “In those circumstances, a court possesses no power to 22 decide the arbitrability issue.” Id.; see also Capps, 2023 WL 23 3030990 at *6 (collecting cases). 24 III. ORDER 25 For the reasons set forth above, the Court GRANTS Defendant 26 EIS’ motion to compel arbitration and stays this action as to EIS 27 for the duration of arbitration pursuant to 9 U.S.C. section 3. 28 The parties are directed to file a joint status report within 30 ee IE IIE IRIE RISD EIEIO III II IRE IEEE IEDR ESS eee eee

1 days after a final arbitration order is issued. 2 IT IS SO ORDERED. 3 Dated: July 1, 2024

SM is

JOHN A. MENDEZ

6 SENIOR UNITED*STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13