Antitrust Law Daily Wrap Up, PRIVACY—W.D. Wis.: Consumer’s TCPA claims against retailer subject to arbitration, (Mar 27, 2015)

By Linda O’Brien, J.D., LL.M.

A consumer‘s claims against Kohl’s for making unsolicited autodialed and prerecorded calls to her cellular telephone were subject to arbitration under the terms of the cardholder agreement for a credit card the consumer obtained from the retailer, the federal district court in Madison, Wisconsin has decided (Ineman v. Kohl’s Corporation, March 26, 2015, Conley, W.).

In August 2008, Brittany Ineman applied for and obtained a general use credit card from retailer Kohl’s. As part of the application process, Ineman completed a paper credit card application, which contained her personal information but not her cellular telephone number. Ineman regularly used the credit card for purchases after its issuance. Beginning in late 2008 until 2013, when she paid off and closed her account, Ineman received numerous autodialed and prerecorded calls on her cellular phone from Kohl’s or parties acting on behalf of Kohl’s, which were not for emergency purposes. Subsequently, Ineman filed a putative class action suit against Kohl’s for violations of the Telephone Consumer Protection Act (TCPA). Kohl’s moved to compel arbitration based on the terms of the cardholder agreement, which contains a bilateral clause requiring arbitration on an individual basis.

The court explained that it must compel arbitration under the Federal Arbitration Act when a valid arbitration agreement exists, the dispute falls within the scope of the agreement, and the plaintiff refuses to proceed with arbitration pursuant to the agreement. In this case, Kohl’s presented undisputed evidence of Ineman’s continued use of the Kohl’s credit card. Although Ineman contended that she did not recall receiving, reading, or reviewing the cardholder agreement, her admitted use of the credit card was sufficient to find that she assented to its terms, including the arbitration provision.

Finding assent to arbitrate, the court next determined that the dispute fell within the broad scope of the agreement, which covered all “claims, disputes and controversies between” Ineman and Kohl’s, including statutory claims. Finally, the filing of the lawsuit and her opposition to Kohl’s motion to compel showed that Ineman has refused to proceed with arbitration in accordance of the terms of the cardholder agreement. Therefore, Kohl’s motion to compel arbitration was granted.

The case is No. 14-cv-398-wmc.

Attorneys: Douglas Ian Cuthbertson (Lieff Cabraser Heimann & Bernstein) for Brittany Ineman. Bryan J. Cahill (Godfrey & Kahn, SC) for Kohl's Corporation.

Companies: Kohl’s Corporation

Cases: Privacy WisconsinNews