Compelling Arbitration of TCPA Claims Alive and Well
Two recent opinions show that litigants should always determine whether compelling arbitration is viable tactic in fighting claims under the Telephone Consumer Protection Act (TCPA). In Fridman v. Uber Tech. Inc., two plaintiffs—one a former driver, the other a rejected applicant—sued Uber regarding unsolicited text messages to their cell phones, allegedly in violation of the TCPA. Uber moved to compel arbitration, looking to technology services agreement executed by both plaintiffs. Though the plaintiffs sought to cast doubt on which claims could be arbitrated, the court found the scope of the arbitration provisions sufficiently broad such that the arbitrator was to decide the arbitrability of claims. While a third named plaintiff in the action was not subject to arbitration, the court dismissed the former driver and applicant from the suit, compelling arbitration.
Likewise, in Garcia v. Kendall Lakes Automotive LLC, a car dealership was successful in compelling arbitration of TCPA claims brought by one of its customers. Garcia alleges that Kendall Lakes violated the TCPA by calling him with a single unsolicited pre-recorded message. The arbitration provision was found in a purchase order, and therefore Garcia argued it only applied to claims related to his purchase. As such, his TCPA claims, which arise from the pre-recorded call and federal law, were not covered. Garcia bolstered this argument with a recent Eleventh Circuit Court of Appeals opinion in Gamble v. New England Auto Finance, which upheld the denial of a motion to compel arbitration of a TCPA claim because that claim did not relate to or arise out of the loan agreement that contained the arbitration provision. The court, however, sided with Kendall Lakes in large part because the arbitration provision applied to claims arising from or relating to the “relationship” between the parties. In that relationship, which was far more extensive than in Gamble, the Garcia had consented in a separate writing to receiving texts and autodialed calls. As such, the TCPA claim fell with the arbitration clause.
Garcia and Fridman show the importance of taking a deep dive into the documents and relationships between litigants when assessing a litigation strategy. Sometimes the provision is bold and upfront like in Fridman, other times it’s a series of writings and transactions that result in an arbitrable dispute like in Garcia. These cases also show businesses the importance of assessing their documents and whether they have properly protected themselves.
