Eleventh Circuit Reverses District Court’s Denial of Petition to Force Arbitration in Putative FCRA Class Action | King and Spalding


On April 5, 2021, the Eleventh Circuit overturned a district court’s rejection of a defendant’s motion to force arbitration in a Fair Credit Reporting Act (“FCRA”) lawsuit arising from a new claim. of services from a former Comcast customer, believing that the FCRA claim related to a prior agreement containing an arbitration provision. The case is remarkable in that it involved a particularly broad arbitration provision – broadly applying to all disputes between the parties, even those arising after the termination of the service contract – which the Eleventh Circuit had not considered before. The court ultimately did not address the issue of the enforceability of the provision, but referred the case back to the district court to determine its enforceability at first instance.

  • Plaintiff Michael Hearn first obtained Comcast services for his residence in December 2016, which he then terminated in August 2017. He called Comcast in March 2019 to inquire about the restart of services at the same address. The complainant called the call a request to open a “new account”, while Comcast called the call a “reconnection of services”.
  • When the applicant called in March 2019, Comcast allegedly performed an unauthorized credit check without the applicant’s knowledge or permission. The credit check resulted in a lowering of the applicant’s credit rating. The plaintiff subsequently filed an alleged class action lawsuit under the FCRA based on this unauthorized credit investigation.
  • When the requester first obtained services in December 2016, he signed an acknowledgment that he had received a “subscription contract”. The agreement contained an arbitration clause which stated: “Any dispute involving [the customer] and Comcast will be resolved by individual arbitration. The agreement defines “dispute” as “any claim or controversy relating to Comcast, including, but not limited to, anything and everything. . . claims that arise after the expiration or termination of this Agreement. “
  • Based on this provision, Comcast filed a motion to force arbitration, which the district court dismissed on the grounds that “no reasonable person would believe that the arbitration provision was so comprehensive as to apply. to all complaints, regardless of when they were related to the agreement. The district court further said it had to give credit to the claimant’s qualification that he was calling to open a new account and not to reconnect services. Therefore, the court concluded that the plaintiff’s FCRA claim did not relate to the prior agreement.
  • The Eleventh Circuit disagreed. After reviewing the provisions of the agreement, including reconnection, credit applications and termination provisions, the panel found that the agreement contained specific rights relevant to the contested credit investigation of March 2019. The committee pointed out that Comcast could not even have conducted the credit investigation without the personal information it collected from the applicant under the previous agreement.
  • Based on its findings, the Panel concluded that the FCRA’s claim relates to the Agreement on the basis of (1) the liberal federal policy favoring arbitration agreements; (2) the relevant provisions of the Subscription Contract applicable to the applicant; and (3) “the fact that Comcast would not have access to [Plaintiff’s] personal information – and therefore could not have engaged in the alleged tortious conduct – without the pre-existing agreement. “
  • The Eleventh Circuit stressed that its participation was “close”. The panel did not decide whether the provision could apply all disputes even after termination of the contract. Instead, the panel recognized that “[w]While the wording of some of our past decisions may indicate that the full scope of the arbitration provision is enforceable, it is a close question that we leave for another day. “
  • The case is Hearn v. Comcast Cable Communications, N ° 19-14455, 2021 WL 1246263 (11th Cir. 2021), and the eleventh circuit notice can be viewed here.


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