United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
A. GUZMÁN UNITED STATES DISTRICT JUDGE
reasons stated below, defendant's motion to compel
arbitration is granted.
Chason Zacher, alleges in this putative class action that
defendant Comcast Cable Communications, LLC
(“Comcast”) violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227 et seq.
(“TCPA”), when it called his cellular telephone
in August 2017, “looking for the account holder for a
specific address.” (ECF No. 18, First Am. Compl.
¶¶ 3, 14, 17.) Comcast moves to compel arbitration
and stay this action on the basis that Zacher previously
entered into a Subscriber Agreement with Comcast that
requires arbitration of the parties' disputes.
Federal Arbitration Act, 9 U.S.C. § 1 et seq.
(“FAA”), governs the enforcement of arbitration
agreements. Int'l Ins. Co. v. Caja Nacional de Ahorro
y Seguro, 293 F.3d 392, 395 (7th Cir. 2002). The FAA
“evinces a national policy favoring arbitration”
and “requires federal courts to place arbitration
agreements on an equal footing with other contracts and
enforce them according to their terms.” A.D. v.
Credit One Bank, N.A., 885 F.3d 1054, 1059-60 (7th Cir.
2018) (internal quotation marks and citations omitted). The
Court will compel arbitration under the FAA “if three
elements are present: (1) an enforceable written agreement to
arbitrate, (2) a dispute within the scope of the arbitration
agreement, and (3) a refusal to arbitrate.”
Id. at 1060. The third element is satisfied because
Zacher refuses to arbitrate.
Written Agreement to Arbitrate
a binding arbitration agreement exists is determined under
principles of state contract law. Gore v. Alltel
Commc'ns, LLC, 666 F.3d 1027, 1032 (7th Cir. 2012).
Because all relevant events occurred in Illinois, Illinois
law determines the validity of the agreement. See Tinder
v. Pinkerton Sec., 305 F.3d 728, 733 (7th Cir. 2002).
Under Illinois law, where the language of a contract is
plain, the agreement is enforced as written. Gore,
666 F.3d at 1033 (citing Carey v. Richards Bldg. Supply
Co., 856 N.E.2d 24, 27 (Ill.App.Ct. 2006)).
support of its motion, Comcast submits the declaration of
Nicole Patel, a Comcast Director of Regulatory Compliance,
who states that Comcast's business records reflect that
Zacher is listed as a contact for a Comcast account that was
opened in August 2011 and registered to Alpha Epsilon
(ECF No. 21-2, Decl. of Nicole Patel ¶¶ 1, 4.) The
telephone number that Zacher alleges Comcast called without
his consent is associated with the Alpha Epsilon Pi account.
(Id. ¶ 4.) Comcast's records also reflect
that Zacher subsequently personally subscribed to
Comcast's service for an address on West Lincoln Highway
in DeKalb, and then again in July 2014 for an address on
Normal Road in DeKalb. (Id. ¶ 5.) Comcast
provided service to the Normal Road address and received
payments on the account (the “Normal Road
account”), and the service was disconnected in July
2015. (Id. ¶¶ 5, 8.) According to Comcast,
its regular business practice (it does not specify at what
time) is for its installation technicians to provide
Comcast's Subscriber Agreement to customers in connection
with the installation and for the technicians to direct
customers to read and accept the Subscriber Agreement when
activating service. (Id. ¶ 6.) Attached to
Patel's declaration is a copy of the “Comcast
Customer Privacy Notice” and the “Comcast
Agreement for Residential Services” (“Subscriber
Agreement”) as they existed at the time Zacher
personally subscribed to Comcast's service for the Normal
Road account. (Id. ¶ 7.) The Subscriber
Agreement provides in pertinent part:
• This Agreement contains a binding arbitration
provision in Section 13 that affects your rights under this
Agreement with respect to all Service(s).
• You will have accepted this Agreement and be bound by
its terms if you use the Service(s) or otherwise indicate
your affirmative acceptance of such terms.
• If you have a Dispute (as defined below) with Comcast
that cannot be resolved through an informal dispute
resolution with Comcast, you or Comcast may elect to
arbitrate that Dispute in accordance with the terms of this
Arbitration Provision rather than litigate the Dispute in
court. Arbitration means you will have a fair hearing before
a neutral arbitrator instead of in a court by a judge or
jury. Proceeding in arbitration may result in limited
discovery and may be subject to limited review by courts.
• The term “Dispute” means any dispute,
claim, or controversy between you and Comcast regarding any
aspect of your relationship with Comcast, whether based in
contract, statute, regulation, ordinance, tort (including,
but not limited to, fraud, misrepresentation, fraudulent
inducement, negligence, or any other intentional tort), or
any other legal or equitable theory, and includes the
validity, enforceability or scope of this Arbitration
Provision. “Dispute” is to be given the broadest
possible meaning that will be enforced.
• . . . THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY
CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR
CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A
PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL
PUBLIC (SUCH AS A ...