A broad arbitration agreement, drafted with TCPA claims in mind, will be enforced – even in the Eleventh Circuit.
In Fialek v. I.C. Sys.,2019 U.S. Dist. LEXIS 39770 (M.D. Fla. Jan. 24, 2019), a magistrate judge recommended that Plaintiff be compelled to pursue her TCPA, FDCPA, and FCCPA claims against Defendant AT&T in arbitration based on an arbitration agreement that Plaintiff agreed to when she registered and used her account. The court found that Plaintiff’s statutory claims fell within the scope of the broad arbitration agreement, which covered “[c]laims arising out of or relating to any aspect of the [parties’] relationship … whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory.”
The court rejected Plaintiff’s reliance on the Eleventh Circuit’s unpublished decision in Gamble v. New England Auto Fin., Inc., 735 F. App’x 664 (11th Cir. 2018). In Gamble, the plaintiff had entered into an auto loan agreement with the defendant, which contained an arbitration agreement. After the plaintiff paid off the loan, the defendant began sending text messages offering a new loan. The Eleventh Circuit found that while the language in the arbitration agreement was broad, it was not “limitless.” Plaintiff’s TCPA claim did not arise out of her relate to the loan agreement or any breach of it. But the Fialek court distinguished Gamble because in Fialek, “the alleged statutory violations resulted from AT&T’s attempts to collect a purported debt from Plaintiff under the Customer Agreement, were related to the performance of said agreement between the parties and arose from their customer-provider relationship.”
The court also rejected the argument that the claims fell outside the scope of the arbitration provision because they occurred after the agreement with AT&T terminated, noting that the arbitration agreement explicitly encompasses “[c]laims that may arise after the termination” of the agreement and “survive[s] termination of” the agreement.
Fialek confirms what we at TCPAWorld have said time and time again: make sure your arbitration agreement (1) is broadly worded to cover statutory claims – like those under the TCPA – arising from any efforts to collect on past due accounts; and (2) states that it survives termination of the underlying agreement.