Plaintiff Joann Davis’ claims against Walmart, her former employer, for alleged violations of the Illinois Biometric Information Privacy Act would fail if adjudicated in court, but her case doesn’t belong in court, said Walmart’s memorandum Monday (docket 1:24-cv-03373) in U.S. District Court for Northern Illinois in Chicago in support of its motion to compel arbitration. Walmart also seeks a stay, pending the outcome of that arbitration. Davis’ April 25 class action alleges that Walmart’s “unlawful collection,” storage and use of its employees’ biometric data “exposes them to serious and irreversible privacy risks” (see 2404260002). But Davis “expressly agreed to arbitrate her claims against Walmart on an individual basis” when she signed Walmart’s human resources documents in September 2022 “at the outset of her employment,” said Walmart’s memorandum.

Brian Pilon and Russell Stephen seek an order compelling Discovery Communications to arbitration, according to their petition Friday (docket 1:24-cv-04760) in U.S. District Court for Southern New York in Manhattan. Pilon and Stephen streamed video content on Discovery+ and are pursuing federal data privacy claims against Discovery under a mandatory arbitration clause in the company’s “visitor agreement,” the petition said. The defendant without consent disclosed the petitioners’ identities and the videos they watched on Discovery+ to third-party advertising and analytics companies, including Meta and Google, it said. Discovery’s conduct violated the Video Privacy Protection Act, which was enacted “specifically for the purpose of protecting consumers’ privacy interests in the videos they watched,” it said. Pilon and Stephen delivered letters on Jan. 9, 2023, informing Discovery of their intention to pursue federal VPPA claims, it said. The same day the letters were delivered, the company posted a version of its visitor agreement to the Discovery+ website, containing a different arbitration agreement than the one Pilon and Stephen were party to, the petition alleges. That new arbitration agreement “contains procedural requirements designed to be onerous to consumers,” it said. It includes a “pre-dispute notice” that requires claimants “to attest to facts already in Discovery’s possession,” like customers’ subscription histories and current subscription status, it said. And it purports to give Discovery “the right to force each consumer to personally attend one-on-one settlement conferences,” at the company’s election, before even filing an arbitration demand, the petition said. It also specifies National Arbitration and Mediation instead of the arbitration provider JAMS specified in the previous arbitration agreement, it said. The parties participated in discussions toward a possible resolution, but those talks broke down May 2, the petition said. That’s when Pilon and Stephen initiated the dispute-resolution process in the original visitor agreement by each filing arbitration demands in JAMS, it said. Discovery wrote JAMS later in May urging rejection of those demands on grounds that they filed them in the wrong forum, it said. Discovery’s position is that the November 2022 visitor agreement that Pilon and Stephen agreed to was now “outdated and superseded” by the newer January 2023 agreement, the petition said. Pilon and Stephen argue that any arbitration clause in the newer agreement doesn’t apply to their disputes, as the visitor agreement they invoked explicitly states that any new arbitration agreement will not apply retroactively, it said. They further argue that the parties had twice agreed to arbitrate disputes about arbitrability, such as the present one, it said. JAMS wrote the petitioners May 29, declining to administer their arbitrations, citing the newer arbitration agreement mandating a different forum, it said. Pilon and Stephen now ask the court to compel Discovery to arbitrate their claims in JAMS under the “plain language” of the visitor agreement, the petition said.

Esperanza Rendon’s June 7 opposition to T-Mobile’s motion to compel her claims to arbitration (see 2406100028) fails to refute T-Mobile’s evidence that she agreed to T-Mobile’s terms and conditions (T&Cs), and that her claims fall within the broad scope of the arbitration provision contained in those T&Cs, said T-Mobile’s reply memorandum Friday (docket 2:24-cv-01666) ) in U.S. District Court for Central California in Los Angeles in support of its motion to compel. Rendon’s various objections to arbitration “lack merit for multiple reasons,” said the reply. Rendon had “constructive notice” of the T&Cs and assented to them by using and paying for T-Mobile services and devices, it said. She doesn’t dispute that the arbitration provision encompasses her claims, it said. Rendon’s challenges to the validity of the arbitration provision and the delegation clause also “are for the arbitrator to decide,” it said. T-Mobile’s arbitration provision “is neither procedurally nor substantively unconscionable,” it said. It’s not procedurally unconscionable because customers “may opt out of arbitration,” it said. It also doesn’t meet “the high bar for substantive unconscionability” because it’s not so one-sided that it “shocks the conscience,” it said. “It is, in fact, extremely fair to the consumer,” it said. To invalidate a contract, a party “must show that it is both procedurally and substantively unconscionable,” it said: “This is neither.” The court should compel Rendon “to honor her repeated promises to resolve any claims against T-Mobile through arbitration,” it said. Rendon is suing T-Mobile to challenge the “regulatory programs & telco recovery fee” on its monthly invoices. She also alleges that when she purchased additional phones from T-Mobile, she was charged for “add-on” device protection plans without her knowledge or consent.

Amazon blitzed the federal courts Friday with 15 petitions in 13 jurisdictions to compel the claims of multiple local delivery drivers to binding arbitration. The drivers provided their services as independent contractors, but they later joined a putative class action against Amazon seeking to change their status to employees, said Amazon’s petition against respondents Cinthia Yarleque and Charles Baker in U.S. District Court for New Jersey (docket 2:24-cv-07046), typifying the others. The respondents have refused to resolve their disputes by binding arbitration, “despite their agreements to do so,” it said. The respondents are individual entrepreneurs who enrolled in the Amazon Flex program to provide New Jersey-area delivery services, it said. Yarleque and Baker downloaded the Amazon Flex app and accepted the independent contractor terms of service when enrolling in the program that included the arbitration provision, it said. The petitions emanate from an October 2016 class action, Rittmann et al. v. Amazon.com (docket 2:16-cv-1554), in which the plaintiffs sought to change the classification of Amazon Flex delivery drivers to employees. Following Amazon’s initial motion to compel arbitration and the supplemental briefing in support of that motion, the number of plaintiffs in the case “has swelled to more than 100 through successive amended complaints, consolidations, and opt-in notices,” said the petition. The Rittmann district court litigation has been stayed a total of 2,343 days, it said: “Despite its age, it is at an early stage of the proceedings.” Triggering Friday’s blitz of petitions was a May 14 scheduling order, allowing Amazon to renew its motion to compel arbitration at an undetermined future date, it said. The question of whether the plaintiffs in Rittmann must arbitrate their claims “remains unresolved,” the petition said.

Northern Data NY, a high-performance computing company, seeks an order confirming the May 29 arbitration award issued in its favor against Onyx Digital Farms, a blockchain technology developer, said its petition Wednesday (docket 2:24-cv-00772) in U.S. District Court for Northern Alabama. Onyx and Northern Data entered into a hardware sales and purchase agreement in September 2022 and a nonnegotiable promissory note in October 2022 under which Onyx agreed to pay Northern Data $477,660 in exchange for “certain designated hardware,” said the petition. After Onyx failed to pay that amount, Northern Data filed a demand for arbitration Oct. 20, 2023, with the American Arbitration Association, it said. The award that the arbitrator issued May 29 holds that Onyx breached its obligations under the 2022 agreements and orders that Northern Data will recover $477,660 in damages, plus interest and roughly $80,500 in attorneys’ and administrative fees, said the petition. But Onyx has failed to pay any of the amounts due to Northern Data under the award, it said.

When Esperanza Rendon first opened her T-Mobile account, the carrier’s representatives provided her with no documents in Spanish, even though they knew that she only speaks Spanish, said Rendon’s memorandum Friday (docket 2:24-cv-01666) in U.S. District Court for Central California in Los Angeles in opposition to T-Mobile’s May 28 motion to compel her claims to arbitration (see 2405290053). Yet when the plaintiff “formed a claim” against T-Mobile, the carrier then sought to enforce an arbitration agreement, without previously disclosing it to Rendon and without putting her on “inquiry notice” to seek such an agreement, said her opposition. T-Mobile also wishes to deprive Rendon of any opportunity to challenge the arbitration agreement by claiming that it contains a delegation clause that gives the arbitrator the authority to determine the issues of arbitrability, contract formation and contractual defenses, it said. T-Mobile’s motion to compel arbitration “must fail” because the arbitration agreement and its delegation clause are “unenforceable,” it said. The plaintiff also should be allowed to have limited discovery “on the contractual defenses such as unconscionability and contract formation issues,” it said. Rendon is suing T-Mobile to challenge the “regulatory programs & telco recovery fee” on its monthly invoices. She also claims that when she purchased additional phones from T-Mobile, she was charged for “add-on” device protection plans without her knowledge or consent.

Plaintiff Esperanza Rendon’s request for an ex parte order to postpone the hearing on T-Mobile’s motion to compel arbitration for 120 days, and to allow her to take certain discovery, isn't justified, said T-Mobile’s opposition Tuesday (docket 2:24-cv-01666) in U.S. District Court for Central California in Los Angeles. Rendon entered into a series of agreements to arbitrate all disputes in her fraud case over add-on fees, said the defendant. The longtime T-Mobile customer sued the carrier in March over the “regulatory programs & telco recovery fee” on its monthly invoices (see 2403010023). The arbitration provision in Rendon's customer contract includes a delegation clause in which the parties agreed that any disputes regarding arbitrability would also be decided by the arbitrator, said the opposition. The plaintiff “can argue that the arbitration clause is unconscionable or that she should be allowed to take discovery in an attempt to prove that—but those matters will be decided by the arbitrator,” it said. “Even if the court considered Rendon’s unconscionability argument (which it should not), the arbitration agreement at issue here contains an opt-out clause, which makes the arbitration agreement per se not unconscionable,” the filing said. Courts have repeatedly held that T-Mobile’s arbitration clause is not unconscionable, it said. In addition, “there is no support” for Rendon’s request to take discovery, said the opposition. Some courts “in very different circumstances have allowed some limited, specific discovery in connection with a motion to compel arbitration,” but Rendon cited no case in which a court has allowed discovery in order to oppose a motion to compel arbitration “where the arbitration agreement contained a delegation clause and an opt-out clause,” it said. Most of Rendon’s requests “have nothing to do with her agreements with T-Mobile and instead seek far-afield information about other customers, which will not help decide any issue Ms. Rendon might raise in opposition to the motion to compel arbitration,” it said.

T-Mobile seeks an order compelling arbitration of Esperanza Rendon’s fraud claims against the carrier and to stay the case pending the completion of that arbitration, said its memorandum of law Tuesday (docket 2:24-cv-01666) in U.S. District Court for Central California in Los Angeles in support of its motion to compel. The motion should be granted because Rendon “is contractually required to arbitrate, rather than litigate, all of her claims against T-Mobile,” said the memorandum. Rendon, a longtime T-Mobile customer, is suing the carrier to challenge the “regulatory programs & telco recovery fee” on its monthly invoices (see 2403010023). She also claims that when she purchased additional phones from T-Mobile, she was charged for “add-on” device protection plans without her knowledge or consent. But Rendon “disregards the fact that since she activated her service,” she has repeatedly agreed to T-Mobile’s “industry-standard” terms and conditions, “which require individual arbitration of disputes,” said the memorandum. To the extent that Rendon “challenges the scope or enforceability of the arbitration provision she agreed to,” the parties also agreed that the arbitrator, not the court, would decide those disputes, it said. Even if the court were to consider those delegated issues, Rendon’s arguments “fail on the merits,” it said: “In sum, Ms. Rendon should be compelled to honor her agreements to arbitrate her dispute with T-Mobile.”

U.S. District Judge Jon Tigar for Northern California in Oakland denied without prejudice the motion of nine former Twitter employees to compel their claims against Twitter and X to arbitration and for preliminary injunctive relief, said his signed order Monday (docket 4:23-cv-03301). The court finds merit to Twitter’s argument in opposition to the motion to compel arbitration, that the court shouldn’t rule on the motion until after class certification has been decided, said the order. The parties will meet and confer on a case schedule, including a briefing schedule for the plaintiffs’ motion for class certification, due within 14 days, it said. The plaintiffs alternatively may elect to dismiss the class claims and proceed only on behalf of the named plaintiffs, it said. Assuming they intend to move for class certification, the court “would be amenable to hearing that motion and a motion to compel arbitration on the same date,” it said. The court would also be amenable “to having the parties submit the motion to compel arbitration on the papers already submitted in lieu of filing new briefing,” it said.

U.S. District Judge Tana Lin for Western Washington in Seattle denied the motion of former Amazon third-party seller Shenzhen Yunzhongge Technology Co. to vacate an August 2023 arbitration award in Amazon’s favor and granted Amazon’s motion to confirm that award, said the judge’s signed order Wednesday (docket 2:23-cv-01693). Amazon deactivated Yunzhongge’s seller account in April 2020 and seized more than $300,000 in sales proceeds that the arbitrator let Amazon keep after it found the seller violated Amazon’s rules against the restricted sale of disposable face masks and hand sanitizer in the early days of the COVID-19 pandemic. The judge found that arbitrator Sasha Philip didn’t “manifestly disregard the law” in her decision, said the order. Moreover, the judge found that enforcement of the arbitration award isn’t “in violation of public policy,” or that the award was “irrational,” it said.