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Viehweg v. Sirius XM Radio, Inc.

United States District Court, C.D. Illinois, Springfield Division

May 7, 2018

WILLIAM HERMAN VIEHWEG, Plaintiff,
v.
SIRIUS XM RADIO, INC., Defendant.

          OPINION

          SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE

         Defendant Sirius XM Radio, Inc. has filed a Motion to Stay Proceedings and Compel Arbitration (d/e 25). Defendant contends that pro se Plaintiff William Herman Viehweg's defamation claims are subject to arbitration pursuant to the Customer Agreement that it entered into with Plaintiff. Because Plaintiff's defamation claims are not subject to arbitration, Defendant's Motion is DENIED.

         I. BACKGROUND

         In June 2017, Plaintiff, a resident of Macoupin County, Illinois, filed a Complaint against Defendant Sirius XM Radio, Inc., a company that provides proprietary radio content over the internet using satellites. In November 2017, Plaintiff filed an Amended Complaint pleading two counts of defamation against Defendant. See Pl.'s Stipulation (d/e 21) (stating that Plaintiff's Amended Complaint only pleads two counts of defamation).

         The Amended Complaint and documents submitted by the parties in response to Defendant's motion provide the following information.

         On October 8, 2015, Plaintiff purchased a new car and received a free 90-day trial subscription to Sirius XM Radio. On December 28, 2015, before his trial subscription ended on January 8, 2016, Plaintiff telephoned Defendant and agreed to purchase five months of service. During that telephone call, the Sirius XM customer care agent asked Plaintiff the following:

Your customer agreement can be found on our website at siriusxm.com or you can request that at any time by phone. If there is an email address on your account, a confirmation of this transaction will be sent to that email address within five days. Do you accept these terms?

Plaintiff responded, “Yes.” Declaration of Jeanne Hutchins, Exhibit A (d/e 25-2); see also Customer Agreement (d/e 25-1, p. 3 of 19) (advising the customer that, by using the site or the service, he agrees to be legally bound by the Agreement; if he does not accept the terms, he should notify the company immediately and the subscription will be cancelled; and if the subscription is not cancelled within three business days of the start of the plan, the customer agrees to the Agreement).

         Sometime between March 2016 and June 2016, and unbeknownst to Plaintiff, Defendant improperly merged Plaintiff's account with the account of another individual with a similar name, William Harry Viehweg (“Harry”), a distant relative of Plaintiff's who resides in Madison County, Illinois. Defendant purportedly left some of Plaintiff's information on the account but designated Harry's credit card as the active card.

         Plaintiff alleges that, on June 8, 2016, he telephoned Defendant to extend his subscription for one year. Harry's credit card was charged.

         The next day, Plaintiff discovered his Sirius XM radio receiver was deactivated. Plaintiff called Defendant and learned that his vehicle had been removed from the account and replaced with another vehicle. Defendant ultimately agreed to reactivate Plaintiff's Sirius XM radio, remove the other vehicle from the account, and credit the account's credit card in the amount of $20.

         On or about June 10, 2016, Harry's wife, Bridget Viehweg (“Bridget”), contacted Defendant about unauthorized transactions on Harry's credit card. Defendant allegedly told Bridget that Plaintiff committed identity theft. Bridget called the Madison County sheriff's office to report that Plaintiff committed identity theft. The Madison County sheriff's office contacted the Mt. Olive police department, who then made contact with Plaintiff. The Mt. Olive police officer immediately concluded that the problem was not identity theft but account management by Defendant and arranged for Bridget to contact Plaintiff. Bridget spoke to Plaintiff and then contacted Defendant. Defendant again allegedly told Bridget that Plaintiff committed identity theft and purportedly “rewarded her for her acceptance, or silence.” Am. Compl. ¶ 16. Bridget refuses to accept Plaintiff's calls, and Defendant subsequently deactivated Plaintiff's Sirius XM radio service. Defendant refuses to acknowledge Plaintiff as a subscriber.

         Plaintiff alleges that he has suffered injuries, including embarrassment and injuries to his reputation. He seeks compensatory damages in excess of $85, 000 and punitive damages in excess of $85, 000.

         The Customer Agreement contains a provision entitled “RESOLVING DISPUTES.” See Declaration of Julie Manning, Exhibit A, Customer ...


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