Just last month we reported on a huge and very troubling trend for companies desiring to enforce arbitration agreements in online webforms. A court refused to compel arbitration in favor of a major lead aggregator—LowerMyBills.com—after the Plaintiff contended he never encountered the website containing the terms and conditions and arbitration provision.That is true although LMB had data linking him to the website at issue. Obviously a Plaintiff’s ability to avoid arbitration by saying simply ‘it wasn’t me” is a real problem for lead aggregators (and will likely impact the enforceability of supposed written express consent obtained in that case as well.)
Well following that stunning setback, LMB took an appeal to the Ninth Circuit (hmmm..) on the issue. In an odd head fake, the Court initially took scheduling dates off calendar suggesting the case would be stayed pending the appeal. But then —just last Friday—the Court seemingly changed its mind. In Hansen v. LMB Mortg. Servs., No. 2:19-CV-0179-KJM-DMC 2020 U.S. Dist. LEXIS 30285 (E.D. Cal. Feb. 21, 2020) the Court issued a new order noting it had issued its earlier order vacating a scheduling conference “in error.” It decided, instead, that the issue of arbitrability was severable from the merits of the case and re-set dates so the case could proceed “on the merits.”
To make matters more fun, the scheduling conference is set for February 27, 2020—just three days from now. So it looks like this case is going to roll forward and with some momentum. We’ll keep an eye on this one for you.