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Harris v. DirecTV Group

February 5, 2008

WILLIAM HARRIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE DIRECTV GROUP, INC. AND DIRECTV, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff William Harris (hereinafter, "Harris") brings this putative class action suit against Defendants, The DirecTV Group, Inc. and DirecTV, Inc. (hereinafter, "Defendants" or "DirecTV"), alleging that Defendants violated the Fair and Accurate Transactions Act ("FACTA") amendment to the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., by printing more than the last five digits of the card number and/or the expiration date on receipts provided to debit and credit cardholders. Harris alleges that on May 6, 2007, he received from DirecTV's online store a computer-generated receipt that displayed his credit card expiration date.

Before the Court is Defendants' Motion to Compel Arbitration and Plaintiff's Motion to Strike Altered Exhibit. For the following reasons, both motions are granted.

I. FACTUAL BACKGROUND

DirecTV's relationship with its customers is governed by the Customer Agreement, a written contract that governs the rights and obligations of DirecTV and its customers. Miller Aff. ¶ 3. The Customer Agreement (the "Agreement") has been amended several times, and each time it is amended, existing customers receive a copy of the new Agreement in the mail with their next monthly billing statements. Each new Agreement replaces customers' old Agreement. Id. ¶ 5. Moreover, "[n]otices to you will be deemed given when personally delivered, addressed to you at your last known address and deposited in the U.S. Mail (which may include inclusion in your billing statement), or sent . . . to the e-mail address you provided us. . . ." April 24, 2007 Customer Agreement, Section 10(a).

Harris first signed up for DirecTV's services in December 1999. At that time, the Agreement in effect was the October 1999 Customer Agreement. Id. ¶ 6. Since December 1999, the Customer Agreement was revised several times: September 2001, October 2004, December 2004, May 1, 2006, and April 24, 2007. Supp. Miller Aff. ¶ 2. On May 6, 2007, Harris added High Definition ("HD") programming to his service via DirecTV's website. The Agreement in effect at that time was the April 24, 2007 Customer Agreement, which DirecTV states it mailed to Harris with his May 22, 2007 monthly billing statement. Id. ¶ 3. The predecessor to the April 2007 Agreement, the May 1, 2006 Agreement, would have been mailed to Harris with his monthly billing statement on or about May 22, 2006. Id. ¶ 4.

As a threshold matter, the parties dispute which version of the Customer Agreement is applicable to Harris: Harris argues that the April 24, 2007 Agreement should not apply to him because it was not sent to him until May 22, 2007, after he signed up for HD service on May 6. See id. ¶ 3. Pursuant to Section 10(a) of the Agreement, the May 1, 2006 Agreement is probably the version applicable to Harris. This makes no difference, however, because the substance of the arbitration provision (Section 9) and the disclaimer on the first panel are identical. Compare Ex. C to Defs.' Response to Pl.'s Mot. to Strike (paper copy of April 24, 2007 Agreement) with Ex. B to Defs.' Reply in Support of Mot. to Compel Arbitration (.pdf copy of May 1, 2006 Agreement).

The April 2007 Agreement is printed in an 8-point font on a ten-paneled fold-up pamphlet containing approximately 750 words per panel. (Presumably the May 1, 2006 Agreement appears in a similar format in paper form, although Defendants provided the Court with only an enlarged .pdf version.) Near the top of the first panel in bold capital letters is the following:

THIS DOCUMENT DESCRIBES THE TERMS AND CONDITIONS OF YOUR RECEIPT AND PAYMENT OF DIRECTV SERVICE AND IS SUBJECT TO ARBITRATION (SECTION 9). IF YOU DO NOT ACCEPT THESE TERMS, PLEASE NOTIFY US IMMEDIATELY AND WE WILL CANCEL YOUR SERVICE. IF YOU INSTEAD DECIDE TO RECEIVE OUR SERVICE, IT WILL MEAN THAT YOU ACCEPT THESE TERMS AND THEY WILL BE LEGALLY BINDING.

This text appears in the same font size as the text in the body of the pamphlet. Section 9 appears on panels 9 and 10 of the pamphlet.

DirecTV has moved to compel arbitration pursuant to Section 9, which provides that any legal or equitable claims will be resolved first through informal means and then, if informal resolution is unsuccessful, "any Claim either of us asserts will be resolved only by binding arbitration. . . . ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL." May 2006 Agreement, Section 9(b). Section 9(b) further provides that arbitration will be conducted under JAMS Rules then in effect and, in the event of a conflict between JAMS Rules and the Agreement, the Agreement governs. Remedies available in arbitration are not limited: "You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state's law." Id. With respect to the costs of arbitration, Section 9(b) provides:

If you decide to initiate arbitration, you agree to tell us in writing the amount that you would pay to file a lawsuit against us in the appropriate court of law in your state. Unless we agree to pay your fee for you, you only need to pay an arbitration initiation fee equal to such court filing fee, not to exceed $125; we agree to pay any additional fee or deposit required by JAMS to initiate your arbitration. We also agree to pay the costs of the arbitration proceeding. Other fees, such as attorney's fees and expenses of travel to the arbitration will be paid in accordance with JAMS Rules. The arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration.

Section 9(c)(ii) of the Agreement contains a class action waiver: "Neither you nor we shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. . . . If, however, the law of your state would find this agreement to dispense with ...


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