United States District Court, N.D. Texas, Dallas Division
VICKIE FORBY, individually and on behalf of all others similarly situated, Plaintiff,
ONE TECHNOLOGIES, LP; ONE TECHNOLOGIES MANAGEMENT, LLC; and ONE TECHNOLOGIES CAPITAL, LLP, Defendants.
MEMORANDUM OPINION AND ORDER
LINDSAY UNITED STATES DISTRICT JUDGE.
November 8, 2019, the United States Magistrate Judge entered
the Findings, Conclusions and Recommendation of the United
States Magistrate Judge (Doc. 118) (“Report”),
recommending that the court: (1) deny Defendants' Motion
to Compel Arbitration and Stay Proceedings (Doc. 97); (2)
grant Defendants' Motion, In the Alternative, to Strike
Plaintiff's Class Allegations (Doc. 99) and require
Plaintiff to filed an amended complaint that excludes all
class allegations; and deny as moot Defendants' Motion
for a Temporary Stay of All Proceedings Pending Resolution of
Defendants' Motion to Compel Arbitration (Doc. 102).
filed objections (Doc. 119) to the Report, contending that
the magistrate judge erred in recommending that her class
allegations be stricken. Defendants filed objections (Doc.
120) to the Report, contending that the magistrate judge
erred in recommending that their Motion to Compel Arbitration
be denied by failing to consider their contention that
Plaintiff should be compelled to arbitrate her new Credit
Repair Organizations Act claim because Defendants could not
have waived their right to arbitrate this new claim.
Defendants also filed a response to Plaintiff's
For the reasons that follow, the court accepts in
part and rejects in part the findings and
conclusions of the magistrate judge.
Defendants' Motion to Compel Arbitration and to Stay
Proceedings (Doc. 97)
Report adequately addresses the issues raised by the parties
with respect to Defendants' Motion to Compel Arbitration,
and the court determines that the magistrate judge's
findings, conclusions, and recommendations regarding this
motion is correct. Accordingly, having reviewed
Defendants' Motion to Compel Arbitration, pleadings,
file, record in this case, and Report, and having conducted a
de novo review of the portions of the Report to which
objection was made with respect to this motion, the court
determines that the findings and conclusions of the
magistrate judge are correct, and accepts
them as those of the court. Accordingly, the court
overrules the Defendants' objections and
denies Defendants' Motion to Compel
Arbitration and Stay Proceedings (Doc. 97).
Defendants' Motion, In the Alternative, to Strike
Plaintiff's Class Allegations (Doc. 99)
noted, the magistrate judge recommended that the court grant
Defendants' Motion, In the Alternative, to Strike
Plaintiff's Class Allegations (“Motion to
Strike”) (Doc. 99) and require Plaintiff to filed an
amended complaint that excludes all class allegations.
Specifically, the magistrate judge recommended that
“the allegations of any putative class members subject
to the Arbitration Agreement in Plaintiff's Second
Amended Complaint should be stricken, ” as Defendants
did not, and could not “have waived their arbitration
rights as to putative class members because the class has yet
to be certified. Report 5-6. For the reasons that follow, the
court rejects the findings and conclusions
of the magistrate judge with respect to Defendants'
Motion to Strike (Doc. 99), as the court determines that
Defendants have no class arbitration rights to waive.
The Parties' Contentions
support of their Motion to Strike, Defendants argue that the
court should strike Forby's class allegations because
they have a “broad and enforceable” arbitration
agreement with all absent class members that has not been
waived by them, and “it is undisputed that all putative
class members' claims are subject to [binding] individual
arbitration.” Defs.' Mot. to Strike 12, 14.
Defendants further assert that, because, “every absent
putative class member is subject to binding, individual
arbitration, ” Forby's class allegations
necessarily fail, as she will never be able to meet Federal
Rule of Civil Procedure 23(a)'s numerosity, typicality,
and adequacy requirements for class certification, and no
amount of discovery will cure this deficiency. Thus,
Defendants' Motion to Strike centers on its contention
that, because all claims and disputes by individual persons
who purchase and use Defendants' credit monitoring
services are subject to binding arbitration under the
arbitration agreement at issue, the arbitration agreement
necessarily extends to and requires arbitration of class or
contend that it is undisputed that they have a valid
arbitration agreement with all absent class members based on
this court's opinion in Forby v. One Techs., LP,
3:16-CV-856-L, 2017 WL 2930514 (N.D. Tex. July 10, 2017),
which was reversed by the Fifth Circuit on November 28, 2018.
See Forby v. One Techs., L.P., 909 F.3d 780 (5th
Cir. 2018). Defendants also rely on the declaration of One
Technologies Senior Escalations Administrator Kevin Hain
(“Hain”), in which he states:
5. One Technologies began selling its credit-monitoring
services on October 1, 2008. Ever since October 1, 2008,
every person who has purchased and used One Technologies'
services first had to click a button, as part of the
enrollment path, confirming that he or she had agreed to the
“Terms and Conditions” that were (and still are)
accessible during the enrollment process. This is true for
all consumers who clicked through the enrollment path on all
ScoreSense websites. Ever since October 1, 2008, it has been
impossible for a person to enroll in One Technologies'
credit-monitoring services without first agreeing to the
Terms and Conditions.
6. From October 1, 2008 through May 16, 2019, the One
Technologies Terms and Conditions have always included an
arbitration agreement that has had the same material terms
(any changes have been clerical, e.g. punctuation or
identifying parties by name rather than category). A true and
correct copy of the arbitration agreement that One
Technologies has used since October 1, 2008 can be found at
Paragraph 23 of Exhibit B to my original Declaration, which
was dated July 21, 2015.
Defs.' Mot. to Strike App. 3.
contend that, while the Fifth Circuit concluded that they
waived their right to arbitrate Forby's claim for alleged
violations of the Illinois Consumer Fraud Act
(“ICFA”), it did not and could not have held that
they waived their right to arbitrate any putative class
members' claims because a nonnamed class member is not a
party to a class-action litigation before the class is
certified and, thus, cannot be compelled to arbitrate.
Defendants argue that they could not have waived their right
to compel arbitration of absent class members because the
putative class members in this case have not ...