Dale Mortensen v. Bresnan Communications

This case involves a binding arbitration clause in a contract of adhesion between a commercial provider of highspeed, broadband Internet services and its customers. We consider the relationship of state and federal law and the concept of preemption in this context. Dale Mortensen and Melissa Becker (“Plaintiffs”) brought this putative class action against Bresnan Communications alleging violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2520-21 , the Computer Fraud and Abuse Act, , 18 U.S.C. § 1030 , and Mpntana state law for invasion of privacy and trespass to chattels in connection with targeted advertising that they received while using Bresnan’s Internet service. The service subscriber agreement provided to all Bresnan customers contained a choice-of-law clause, specifying that New York law should apply, and an arbitration clause, both of which the district court declined to enforce.

We consider, in light of the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, — U.S. —, 131 S.Ct. 1740 , 179 L.Ed.2d 742 (2011), whether the Federal Arbitration Act (“FAA”), Pub.L. No. 68-401, 43 Stat. 883 (1925) (codified as amended at 9 U.S.C. §§ 1-2 et…