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Zacher v. Comcast Cable Communications, LLC

United States District Court, N.D. Illinois, Eastern Division

June 20, 2018

CHASON ZACHER, Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          RONALD A. GUZMÁN UNITED STATES DISTRICT JUDGE

         For the reasons stated below, defendant's motion to compel arbitration is granted.

         BACKGROUND

         Plaintiff, 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.”[1] (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.

         DISCUSSION

         The 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.

         Enforceable Written Agreement to Arbitrate

         Whether 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)).

         In 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 Pi.[2] (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 ...

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