United States District Court, N.D. Illinois, Eastern Division
A.D., by and through her guardian ad litem Judith Serrano, on behalf of herself and all others similarly situated, Plaintiff,
CREDIT ONE BANK, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
minor acting through her guardian ad litem Judith
Serrano, has sued Credit One Bank, N.A., under the Telephone
Consumer Protection Act (TCPA), 47 U.S.C. § 227, on
behalf of herself and others similarly situated. A.D. alleges
that Credit One violated the TCPA by repeatedly calling her
on her cellular phone without her consent, using an automated
dialer, ostensibly to collect on a debt she did not owe.
Credit One has moved to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
on the basis that A.D. and members of the putative class lack
standing to sue. Credit One has also moved to compel
arbitration based on an arbitration agreement it had with
A.D.'s guardian ad litem. A.D. opposes both
motions and has moved for class certification under Rule
23(b)(3). For the reasons stated below, the Court denies
A.D.'s motion for class certification, denies Credit
One's motion to dismiss, and grants Credit One's
motion to compel arbitration and stay proceedings.
One is a national bank that provides banking services and
credit cards throughout the United States. Judith Serrano,
the plaintiff's mother, has been one of its customers
since about 2003, when she opened a credit card account with
Credit One and began using the card for everyday purchases.
A.D., Serrano's daughter, is not an account holder and is
not named on her mother's account.
order to open her account, Serrano signed a standard
"Visa / Mastercard Cardholder Agreement, Disclosure
Statement and Arbitration Agreement." The agreement
provided, among other things, that Serrano consented to
receive communications from Credit One:
COMMUNICATIONS: You are providing express
written permission authorizing Credit One Bank or its agents
to contact you at any phone number (including mobile,
cellular / wireless, or similar devices) or email address you
provide at anytime [sic], for any lawful purpose. The ways in
which we may contact you include live operator, automatic
telephone dialing systems (auto-dialer), prerecorded message,
text message or email. Phone numbers and email addresses you
provide include those you give to us, those from which you
contact us or which we obtain through other means. Such
lawful purposes include, but are not limited to . . .
collection on the Account . . . .
Pl.'s Ex. 2, dkt. no. 78-3, at 6. The agreement also
included an arbitration provision, which stated:
Agreement to Arbitrate: You and we agree
that either you or we may, without the other's consent,
require that any controversy or dispute between you and us
(all of which are called "Claims"), be submitted to
mandatory, binding arbitration. This arbitration provision is
made pursuant to a transaction involving interstate commerce,
and shall be governed by, and enforceable under, the Federal
Arbitration Act (the "FAA"), 9 U.S.C. § 1 et
seq., and (to the extent State law is applicable), the State
law governing this Agreement.
Claims Covered: Claims subject to
arbitration include, but are not limited to, disputes
relating to the establishment, terms, treatment, operation,
handling, limitations on or termination of your account . . .
billing, billing errors, credit reporting, the posting of
transactions, payment or credits, or collections matters
relating to your account.
Id. at 8. The agreement further provided:
Claims subject to arbitration include not only Claims made
directly by you, but also Claims made by anyone connected
with you or claiming through you, such as a co-applicant or
authorized user of your account, your agent, representative
or heirs, or a trustee in bankruptcy.
Id. The Cardholder Agreement defined
"authorized user" as anyone the cardholder allows
to use her account. See Id. at 4.
filed this suit against Credit One in December 2014 after
receiving "at least twelve calls at different
times" from Credit One to her cellular phone. Compl.,
dkt. no. 1, ¶ 9. She alleged that these calls were made
"using an automatic telephone dialing system, " and
that she never gave consent to receive such calls.
Id. ¶ 8. A.D. also alleged that "[a]t no
time did [she] engage in any transaction with [Credit One] or
do business with Credit One in any way." Id.
"Based on the content of the messages left and the
conversations with [Credit One's] agents who spoke on the
phone, " A.D. alleged that "[Credit One] was
seeking to collect on a consumer loan extended to another
person." Id. ¶ 9. A.D. did not identify
who she thought that other person might have been.
One answered A.D.'s complaint in February 2015. In its
answer, it asserted an affirmative defense in which it
"reserve[d] its right to compel arbitration."
Answer, dkt. no. 17, at 14 ¶ 4. It provided no further
explanation. Credit One moved to stay proceedings in April
2015 to await an anticipated FCC ruling, moved for leave to
file a third-party complaint against Serrano in May 2015, and
moved to transfer venue in August 2015. The Court denied each
of these motions, none of which was based upon the asserted
affirmative defense that this dispute was subject to
discovery, Credit One reviewed its records and learned that
it acquired A.D.'s telephone number when it received a
call from that number on November 10, 2010. The person who
called Credit One from that telephone number accessed
Serrano's account by giving Serrano's account number
and confirming the last four digits of her social security
number. During her deposition in April 2016, A.D. testified
that her telephone number is on her mother's family phone
service plan and that her mother pays its bills. She also
testified that although her mother has used the phone, the
phone belongs to A.D. alone. According to A.D., the only two
people who have ever had access to the phone are she and her
mother, but only Serrano knows the last four digits of
Serrano's social security number. Based on this
testimony, the only explanation for Credit One acquiring
A.D.'s telephone number and determining that it was
associated with Serrano's account was that Serrano called
Credit One and accessed her account using A.D.'s
One also learned in A.D.'s and Serrano's depositions
in April 2016 that prior to the telephone calls A.D.
allegedly received, A.D. enjoyed some benefits of her
mother's Credit One account holder status. Serrano
testified that she regularly used the card to purchase food
and drink for herself and her daughter. Serrano also
testified that on at least one occasion in early 2014, she
preordered drinks ...