1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 BOBBY J. CLARK, JR., No. 2:24-cv-00783 WBS CKD 13 Plaintiff, 14 v. MEMORANDUM AND ORDER RE:

EXPERIAN’S MOTION TO COMPEL

15 TRANS UNION LLC; EXPERIAN ARBITRATION

INFORMATION SOLUTIONS, INC.;

16 EQUIFAX INFORMATION SERVICES,

LLC; ONEMAIN FINANCIAL GROUP,

17 LLC; and ALLY FINANCIAL INC., 18 Defendants. 19 ----oo0oo---- 20 21 Plaintiff Bobby Clark brought this action against 22 defendants Trans Union LLC, Experian Information Solutions Inc., 23 Equifax Information Services LLC, OneMain Financial Group LLC, 24 and Ally Financial Inc., alleging violations of the Fair Credit 25 Reporting Act, 15 U.S.C. § 1681 et seq., and the California 26 Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785 et 27 seq. Defendant Experian Information Solutions now moves to 28 compel plaintiff to arbitrate his claims against Experian. 1 (Docket No. 43.) 2 I. Discussion 3 Defendant Experian Information Solutions, Inc. (“EIS”) 4 is a credit reporting agency. (Compl. (Docket No. 1) ¶ 19). EIS 5 is affiliated with ConsumerInfo.com, Inc., which also does 6 business as Experian Consumer Services (collectively, “CIC/ECS”). 7 (See Smith Decl. (Docket No. 32-4 at 1-5) ¶ 1-2.) Both EIS and 8 CIC/ECS are wholly-owned subsidiaries of Experian Holdings, Inc. 9 (Id. ¶ 2.) Plaintiff signed up for a credit-monitoring account 10 via the CIC/ECS website (see Clark Decl. (Docket No. 44-1) ¶ 4; 11 Smith Decl. ¶ 3),1 which had Terms of Use containing an 12 arbitration agreement. 13 Plaintiff alleges that in 2023, he paid off outstanding 14 balances on several past-due accounts, which Experian continued 15 to report as outstanding. (Compl. ¶¶ 53-59, 60-65.) Despite 16 disputes filed by plaintiff, Experian did not correct the account 17 balances on plaintiff’s credit reports. (See id. ¶¶ 66-68, 77, 18 170, 173.) Plaintiff’s claims allege that Experian “failed to 19 adequately review all of the information provided to it” and 20 “failed to conduct a reasonable reinvestigation” of plaintiff’s 21 disputes. (Id. ¶¶ 78-79, 169, 172.) 22 The Federal Arbitration Act (“FAA”) provides that a 23 written provision in a “contract evidencing a transaction 24 involving commerce to settle by arbitration a controversy 25

26 1 Plaintiff concedes that he signed up for an “Experian account,” but does not specify how he did so. (See Clark Decl. ¶ 27 4.) Defendant’s declaration states that CIC/ECS business records show plaintiff signed up for an account via the CIC/ECS website 28 (Smith Decl. ¶ 3), which plaintiff does not dispute. 1 thereafter arising out of such contract . . . shall be valid, 2 irrevocable, and enforceable, save upon such grounds as exist at 3 law or in equity for the revocation of any contract.” 9 U.S.C. 4 § 2. The FAA “leaves no place for the exercise of discretion by 5 a district court, but instead mandates that district courts shall 6 direct the parties to proceed to arbitration on issues as to 7 which an arbitration agreement has been signed.” Dean Witter 8 Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). 9 “[T]he FAA limits courts’ involvement to determining 10 (1) whether a valid agreement to arbitrate exists and, if it 11 does, (2) whether the agreement encompasses the dispute at 12 issue.” Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119 (9th 13 Cir. 2008) (internal quotation marks omitted). 14 A. Existence of Arbitration Agreement 15 Plaintiff argues that the declaration of CIC/ECS 16 employee Dan Smith fails to establish the existence of an 17 arbitration agreement between the parties.2 This argument lacks 18 merit. 19 According to his declaration, Mr. Smith has been the 20 Director of Product Operations at CIC/ECS since January 2010.

21 2 Plaintiff does not appear to meaningfully dispute the 22 veracity of Mr. Smith’s declaration. Rather, plaintiff objects to the declaration on the ground that Mr. Smith lacks personal 23 knowledge. However, this type of objection is “duplicative of the summary judgment standard itself.” Alvarez v. T-Mobile USA, 24 Inc., 2:10-cv-2373 WBS GGH, 2011 WL 6702424, at *3 (E.D. Cal. Dec. 21, 2011). “Statements based on improper legal conclusions 25 or without personal knowledge are not facts and can only be considered as arguments, not as facts, on a motion for summary 26 judgment. Instead of challenging the admissibility of this 27 evidence, lawyers should challenge its sufficiency.” Id. Because plaintiff’s evidentiary objection is “superfluous” at 28 this stage, it is hereby OVERRULED. See id. 1 (Smith Decl. ¶ 1.) His job duties require that he be familiar 2 with “how consumers enroll, the forms they must complete to 3 enroll, as well as the Terms of Use governing such services,” 4 along with the “electronic databases that store consumer 5 enrollment information, including the webpages a consumer would 6 have encountered to complete their enrollment . . ., the 7 personally identifiable information entered when enrolling, which 8 links or buttons the consumer clicked on, and date and time of 9 the consumer’s acceptance of the Terms of Use.” (Id.) Mr. Smith 10 states that he reviewed the CIC/ECS database and found that 11 plaintiff signed up for an account on February 21, 2018. (Id. ¶ 12 3.) He also describes the webpage plaintiff was presented with 13 in order to enroll. (See id.) 14 As the Ninth Circuit has explained, “an enforceable 15 contract will be found . . . if: (1) the website provides 16 reasonably conspicuous notice of the terms to which the consumer 17 will be bound; and (2) the consumer takes some action, such as 18 clicking a button or checking a box, that unambiguously manifests 19 his or her assent to those terms.” Berman v. Freedom Fin. 20 Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022). 21 Under this standard, the Smith declaration is plainly 22 sufficient to establish that plaintiff “affirmatively 23 acknowledge[d] the agreement.” See Nguyen v. Barnes & Noble 24 Inc., 763 F.3d 1171, 1176 (9th Cir. 2014). The declaration 25 explains that on the webpage where plaintiff enrolled, 26 “[i]mmediately below the boxes to enter and confirm his password, 27 was the following disclosure: ‘By clicking “Submit Secure Order”: 28 I accept and agree to your Terms of Use Agreement, as well as 1 acknowledge receipt of your Privacy Policy and Ad Targeting 2 Policy.’” (Smith Decl. ¶ 3.) Based on the screenshot of the 3 website attached to the declaration, this disclosure was set in 4 bolded black typeface and was approximately the same font size as 5 other text on the webpage. (See Docket No. 43-2 at 9.) The 6 phrase “Terms of Use Agreement” was “off-set in blue text and, if 7 clicked, would have presented the consumer with the full text of 8 the agreement” (i.e., the full agreement was hyperlinked). 9 (Smith Decl. ¶ 4.) The “Submit Secure Order” button was 10 “immediately below the disclosure.” (Id.) This formatting made 11 the Terms of Use disclosure “reasonably conspicuous.” See 12 Berman, 30 F.4th at 856-57. 13 The Smith declaration also explains that plaintiff did, 14 in fact, click the “Submit” button, as he “would not have been 15 able to successfully enroll” unless he did so. (Smith Decl. ¶ 16 4.) And it is undisputed that plaintiff created an Experian 17 account. (See Clark Decl. ¶ 4.) Clicking a button is a 18 sufficient manifestation of assent where, as here, “the user is 19 explicitly advised that the act of clicking will constitute 20 assent to the terms.” See Berman, 30 F.4th at 857. 21 District courts routinely find declarations of 22 corporate employees like the one at issue here sufficient to 23 establish the existence of an arbitration agreement. See, e.g., 24 Demaria, 2023 WL 6390151, at *10 (declaration explaining “access 25 to records maintained by [defendant] in its usual course of 26 business, the process by which [users] created profiles and login 27 information” on the online platform, and “how [p]laintiff would 28 have accessed and signed” the arbitration agreement was 1 sufficient to “establish [the declarant’s] personal knowledge” 2 that there was a “valid” agreement between the parties). Indeed, 3 Judge Mendez recently held that a valid agreement to arbitrate 4 existed based on a substantially similar declaration provided by 5 Mr. Smith, see Scribner v. Trans Union LLC, No. 2:23-cv-02722 JAM 6 CKD, 2024 WL 3274838, at *3–5 (E.D. Cal. July 2, 2024), as have 7 several other judges in this District in considering similar 8 declarations by Experian employees, see Saucedo v. Experian Info. 9 Sols., Inc., No. 1:22-cv-01584 ADA HBK, 2023 WL 4708015, at *4-6 10 (E.D. Cal. July 24, 2023); Capps v. JPMorgan Chase Bank, N.A., 11 No. 2:22-cv-00806 DAD JDP, 2023 WL 3030990, at *4-5 (E.D. Cal. 12 Apr. 21, 2023). 13 In rebuttal to the Smith declaration, plaintiff’s 14 declaration states the following: (1) “When I signed up for my 15 online Experian account, I did not click anything that I recall 16 indicating that I would be waiving my right to a jury”; and (2) 17 “I did not see an arbitration agreement, or any mention of an 18 arbitration agreement, when I signed up for my online Experian 19 account.” (Clark Decl. ¶¶ 6-7.) 20 Even taken as true, these statements do not create a 21 genuine dispute of fact. Plaintiff does not dispute that he 22 visited the webpage in question, that he signed up for an 23 account, that the webpage appeared as defendant describes it, or 24 that he had an opportunity to review the Terms of Use. And 25 plaintiff “cannot avoid the terms of the contract on the ground 26 that he failed to read it before signing, especially when he had 27 a legitimate opportunity to review it.” Lee v. Ticketmaster 28 L.L.C., 817 F. App’x 393, 395 (quoting Marin Storage & Trucking, 1 Inc. v. Benco Contracting & Eng’g, Inc., 89 Cal. App. 4th 1042, 2 1049 (1st Dist. 2001), and Mohamed v. Uber Techs., Inc., 109 F. 3 Supp. 3d 1185, 1198 (N.D. Cal. June 9, 2015)) (cleaned up); see 4 also Cordas v. Uber Techs., Inc., 228 F. Supp. 3d 985, 990 (N.D. 5 Cal. 2017) (enforcing arbitration agreement where employee’s 6 declaration stated that user “could not have created an Uber 7 account . . . without [accepting the Terms & Conditions],” and 8 plaintiff “offer[ed] no testimony or evidence regarding what he 9 did see on his screen” or otherwise rebutted the declaration). 10 In arguing that there is no valid arbitration 11 agreement, plaintiff relies on several cases that are both non- 12 binding and inapposite.3 Plaintiff does cite two cases that are 13 directly on point, wherein out-of-circuit district courts 14 3 See Sgouros v. TransUnion Corp., 817 F.3d 1029, 1035 15 (7th Cir. 2016) (“the web pages on which [plaintiff] completed his purchase contained no clear statement that his purchase was 16 subject to any terms and conditions of sale,” but rather “actively misl[ed]” plaintiff by indicating that “clicking on the 17 box constituted his authorization for TransUnion to obtain his 18 personal information”) (emphasis in original); Lamonaco v. Experian Info. Sols., Inc., No. 6:23-cv-1326 PGB LHP, 2024 WL 19 1703112, at *5 (M.D. Fla. Apr. 19, 2024) (declaration stating that plaintiff would not have been able to use Experian service 20 without assenting to terms of use was insufficient to establish existence of agreement where plaintiff did not “admit to 21 accessing the defendant’s website or to signing up for an 22 account”); Austin v. Equifax Info. Servs., LLC, No. 3:22-cv-707, 2023 WL 8646275, at *7 (E.D. Va. Dec. 14, 2023) (“[n]othing in 23 [Experian employee’s] job description disclosed personal knowledge of how the system at issue works,” his declaration did 24 not identify the Experian business records relied upon, and he refused to testify before the court concerning the content of the 25 declaration); Dillon v. BMO Harris Bank, N.A., 173 F. Supp. 3d 258, 265–66 (M.D.N.C. 2016) (declaration company relied upon had 26 several deficiencies, including that declarant was not an 27 employee, did not explain how he became familiar with company’s practices, and did not aver that the webpage at issue was 28 presented to plaintiff). 1 concluded that Experian had failed to establish the existence of 2 an arbitration agreement. See Cox v. Consumerinfo.com, Inc., No. 3 3:24-cv-0033, 2024 WL 3625859, (S.D. W. Va. Aug. 1, 2024); Newton 4 v. Experian Information Solutions, Inc., No. 6:23-cv-059, 2024 WL 5 3451895 (S.D. Ga. July 18, 2024). Notably, these decisions (both 6 pending appeal) relied on Sgouros, which, as indicated in 7 footnote 3, is inapposite. For the reasons discussed herein, the 8 court finds these decisions unpersuasive and against the weight 9 of authority. 10 Accordingly, the court concludes that the parties are 11 bound by the Terms of Use Agreement linked on the webpage where 12 plaintiff created his account. 13 B. Scope of Arbitration Agreement 14 “Although gateway issues of arbitrability presumptively 15 are reserved for the court, the parties may agree to delegate 16 them to the arbitrator.” Momot v. Mastro, 652 F.3d 982, 987 (9th 17 Cir. 2011). Courts may “assume that the parties agreed to 18 arbitrate arbitrability” only if “there is clear and unmistakable 19 evidence that they did so.” Henry Schein, Inc. v. Archer & White 20 Sales, Inc., 586 U.S. 63, 72 (2019). 21 An “express agreement” to arbitrate arbitrability, 22 evinced by a contract’s “language[] delegating to the arbitrators 23 the authority to determine the validity or application of any of 24 the provisions of the arbitration clause,” constitutes clear and 25 unmistakable evidence. Momot, 652 F.3d at 988 (citations 26 omitted). Where such an express delegation provision exists, 27 unless a party opposing enforcement of the agreement 28 “challenge[s] the delegation provision specifically, [courts] 1 must treat it as valid . . . .” Rent-A-Center, W., Inc. v. 2 Jackson, 561 U.S. 63, 72 (2010). 3 “When the parties’ contract delegates the arbitrability 4 question to an arbitrator, a court may not override the contract, 5 even if the court thinks that the arbitrability claim is wholly 6 groundless.” Henry Schein, 586 U.S. at 63. “In those 7 circumstances, a court possesses no power to decide the 8 arbitrability issue.” Id. 9 Here, both the original and amended Terms of Use 10 Agreement state that “[all] issues are for the arbitrator to 11 decide,” including “the scope and enforceability of this 12 arbitration provision.” (See Def.’s Ex. 3 (Docket No. 43-2 at 13 10-41) at 7; Def.’s Ex. 4 (Docket No. 43-2 at 42-57) at 3.) This 14 provision expressly delegates the question of arbitrability to 15 the arbitrator, and plaintiff does not argue otherwise. 16 Accordingly, the court concludes that it must compel arbitration 17 on the question of whether the agreement encompasses plaintiff’s 18 claims. See Capps, 2023 WL 3030990, at *6 (concluding that the 19 parties “clearly and unmistakably delegated the question 20 regarding the scope of the [agreement] to the arbitrator” where 21 Experian arbitration agreement contained identical delegation 22 language); Scribner, 2024 WL 3274838, at *5 (same). 23 II. Conclusion 24 Because the evidence before the court indicates that a 25 valid agreement to arbitrate exists and the agreement clearly and 26 unmistakably delegates the issue of arbitrability to the 27 arbitrator, the court must compel the claims against Experian to 28 be submitted to arbitration. See Dean Witter, 470 U.S. at 218. —— mE III IRIE IERIE IIE REE RID SUIS IRIE NIE OI IRIE IRIE ISIE IIE IIIB ESS

1 IT IS THEREFORE ORDERED that Experian’s motion to 2 compel arbitration (Docket No. 43) be, and the same hereby is, 3 GRANTED. IT IS FURTHER ORDERED that the claims against Experian 4 | Information Solutions, Inc. are STAYED pending arbitration.‘ 5 Dated: September 3, 2024 hte a ak pag! s-~<—— 6 WILLIAM B. SHUBB

UNITED STATES DISTRICT JUDGE

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I] 4 This partial stay does not affect the claims brought 28 | against any other defendants. 10