February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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February 02, 2023

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Arbitration Compelled! Court (Again) Rejects Claim that Party Did not Agree to Arbitration Because, Well, the Party DID Agree to Arbitration!

The Federal Arbitration Act has been around for almost 100 years. It requires courts to “rigorously enforce” arbitration agreements—on equal footing as any other contract. Yet parties often try to avoid rigorous enforcement. Often, that does not work. And it did not work in todays’ case, Jefferson v. Credit One Bank, N.A., No. 21 C 532, 2021 U.S. Dist. LEXIS 202162 (N.D. Ill. Oct. 20, 2021).

There, Plaintiff Adriane Jefferson signed up for a line of credit on Credit One’s website. During that process, Jefferson received and acknowledged the following notice:

ARBITRATION: Your Card Agreement includes an arbitration provision, which restricts your opportunity to have claims related to the account heard in court or resolved by a jury, and to participate in a class action or similar proceeding. Complete details will be in the Card Agreement sent with your card.

Credit One approved Jefferson’s application and mailed her a credit card. The credit card included an agreement that, again, notified Jefferson of her agreement to arbitrate and an opportunity for her to reject arbitration:

Arbitration: This Agreement includes an Arbitration Provision with class action and jury trial waivers. You can reject the Arbitration Provision. See “How to REJECT this agreement to arbitrate” in the Arbitration section. If you do not, it will be part of this Agreement.

Jefferson did not reject the agreement to arbitrate. Instead, she used her card, and failed to pay. At which point, Credit One called Jefferson about her nonpayment. Jefferson sued under the TCPA; she argued that she did not make a “knowing and voluntary” waiver of her litigation and trial rights because the card agreement was “lengthy.”

The court properly rejected that argument, pointing out that:

  • The agreement included a notice alerting Jefferson to the arbitration provision;

  • At the time she applied for credit, Credit One notified her of the arbitration provision; and

  • Jefferson did not opt out of arbitration, despite the “bold font, underlining, and capital letters” notifying her of its existence.

So the Court correctly found “a valid agreement to arbitrate that” it was “bound to enforce.” This is in line with how many courts address these arguments. Particularly where, as here, the party seeking to enforce arbitration carefully disclosed the agreement before binding the consumer. It’s precisely the outcome the Federal Arbitration Act requires.

© Copyright 2023 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 307

About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...