Plaintiff Slips Arbitration, With Declaration

You can be bound to a contract you don’t sign. For example, companies frequently enforce arbitration agreements on non-signatories, if the non-signatory benefited from the contract. How about a situation where a Defendant provides evidence that a Plaintiff actually signed an arbitration agreement, but the Plaintiff denies it? 

This took place in Hobbs v. Apollo Interactive, Inc., 2019 U.S. Dist. LEXIS 216357. The Defendant argued that the Plaintiff used its website, and agreed to the website’s arbitration requirement.  The Defendant revealed that when people submit their contact information on its website, they agree to receive communications via an ATDS, as well as arbitrate any of their claims.  The Defendant provided evidence, in a declaration, that one afternoon last year, the Plaintiff’s contact information was submitted on its website, from a specific location, IP address, and computer. The Defendant moved to dismiss the Plaintiff’s TCPA complaint, and compel arbitration per the agreement.     

However, the Plaintiff presented evidence, in his declaration, that on that particular afternoon, he was in a car, driving in another city, so he claimed he could not have been the one to have visited the Defendant’s website.  He also declared that he uses his phone to surf the internet, not his computer.  Accordingly, the Court held it was a genuine issue of fact as to whether the Plaintiff assented to arbitration, so the Court denied the Defendant’s motion to dismiss and compel arbitration. 

The Defense can be warned; if all web-signs manifesting the Plaintiff’s agreement to arbitrate check off, but the Plaintiff musters a declaration attacking that conclusion, a court will likely not send the case to arbitration.  You’d probably need another legal theory to win that bout.     

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