‘Bait-and-Switch’ Plaintiff Signed ‘Broad’ Arbitration Pact, Says AT&T

Plaintiff Robert Graham agreed to a “broad arbitration provision” when he renewed his contract with AT&T in October 2018 to upgrade his phone, said AT&T’s motion Friday (docket 1:22-cv-05155) in U.S. District Court for Northern Georgia in Atlanta. The motion seeks to stay his class action pending conclusion of that arbitration under Section 3 of the Federal Arbitration Act (FAA).

AT&T’s handset upgrade exchange program was a “bait-and-switch scheme,” alleged Graham’s Dec. 30 complaint against the carrier and American Express (see 2301030051). Graham, a Springboro, Ohio, resident, alleged AT&T “falsely and deceptively” sends customers new phone upgrades on new lines, “not disclosing and not including a suitable return method of such unordered phones.” AT&T, through American Express, assesses service charges for customers who don’t return phones in a time period that AT&T sets, said his complaint.

AT&T’s records show that Graham had three phone numbers before his December 2020 “upgrade attempt,” said AT&T’s brief in support of its motion to stay. Graham “appears to allege that he received three new phones with three new numbers after attempting to upgrade his pre-existing phones,” it said. “All six of these phone numbers would have been serviced under a single AT&T wireless account” that belonged to Graham. He alleges AT&T and American Express charged him unauthorized fees for the additional phones and services at least as early as February 2021, and the charges continue to the present day.

“Ignoring the arbitration agreement,” Graham filed suit, alleging violations of Ohio deceptive trade practices and consumer protection laws, said the brief. Section 4 of the FAA mandates a district court compel arbitration upon the motion of either party to the agreement, it said. Section 3 of the statute further requires a district court to stay litigation of arbitral claims pending arbitration of those claims, it said.

Graham “consented to a valid arbitration agreement” under his AT&T contract, said the brief. Either Georgia or Ohio law “governs the issue of contract formation,” it said. Under either state’s law, Graham “entered the agreement, which contains a broad arbitration agreement and class action waiver,” it said.

Graham’s acceptance of the arbitration agreement “is demonstrated through his electronic signature” of the agreement, said the brief. Both Georgia and Ohio courts have approved of “clickwrap” agreements like the one Graham signed “as a method for demonstrating assent to contractual terms,” it said.

In addition to the “documentary evidence” establishing Graham’s “electronic assent,” his agreement to the arbitration provision “is demonstrated through his continued use of AT&T’s wireless services after having been notified of the terms of service,” said the brief. Georgia and Ohio law “both allow parties to manifest their agreement to contracts through their conduct,” it said. Graham “admits he continued to use AT&T’s wireless services until March 2021,” it said. He can’t “reasonably deny that he assented to the arbitration agreement,” it said.

The broad arbitration agreement Graham signed electronically encompasses all of his claims, said the brief. In light of the federal policy favoring arbitration, the Supreme Court said any doubts about the scope of arbitrable issues should be resolved in favor of arbitration, it said. That’s the case “whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability,” it said.

No legal constraints “external to the arbitration agreement” foreclose taking Graham’s claims to arbitration, said the brief. The arbitration agreement isn’t “vague or ambiguous,” it said. None of the Ohio statutes under which Graham asserts his claims precludes arbitration, it said.