Cherdak v. Act, Inc.

• Decision Date: 04 February 2020
• Docket Number: Civil Action No. TDC-19-1513
• Citation: 437 F.Supp.3d 442
• Parties: Harrison Morgan Cottone CHERDAK and Erik B. Cherdak, Plaintiffs, v. ACT, INC., Defendant.
• Court: U.S. District Court — District of Maryland

437 F.Supp.3d 442

Harrison Morgan Cottone CHERDAK and Erik B. Cherdak, Plaintiffs,

v.ACT, INC., Defendant.

Civil Action No. TDC-19-1513

United States District Court, D. Maryland.

Signed February 4, 2020

Erik B. Cherdak, Gaithersburg, MD, pro se.

Harrison Morgan Cottone Cherdak, Gaithersburg, MD, pro se.

Barry J. Reingold, Robert A. Burgoyne, Pro Hac Vice, Perkins Coie LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

Plaintiffs Harrison Morgan Cottone Cherdak and Erik B. Cherdak (collectively "the Cherdaks") have filed a civil action against Defendant ACT, Inc. ("ACT"), in which they allege that ACT wrongfully decided to cancel Harrison Cherdak's April 2018 test score on the ACT standardized college admission test. Following removal of the case to federal court, ACT filed a Motion to Compel Arbitration and Stay Proceedings or, in the Alternative, to Dismiss for Failure to State a Claim in which ACT contends that the dispute must be resolved in arbitration before the American Arbitration Association. In turn, the Cherdaks have filed a Motion for a Preliminary Injunction seeking to prevent ACT from canceling the April 2018 test score before the resolution of this case. Having reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, ACT's Motion will be GRANTED IN PART and DENIED IN PART, and the Motion for a Preliminary Injunction will be DENIED.

BACKGROUND

Harrison Cherdak is a 2019 graduate of a high school in Montgomery County, Maryland. His father, Erik Cherdak, is a Maryland resident and joins in this action as a co-Plaintiff. The Cherdaks are both self-represented. ACT is a non-profit educational organization based in Iowa City, Iowa that prepares and administers the national ACT standardized test used by many colleges and universities in their undergraduate admissions process. The ACT is intended to measure students' abilities across various educational subjects, and the overall results of the test are provided to test takers in a Composite score. The highest possible Composite score is 36.

In December 2017, as a high school junior, Harrison Cherdak took the ACT for the first time and earned a Composite score of 24 out of 36. He then took a test preparation tutorial program and registered for the April 2018 administration of the test using ACT's online registration process. Students who register online must agree to a set of terms and conditions in order to complete the registration process. While registering for the April 2018 test, Harrison Cherdak agreed to ACT's 2017-2018 Terms and Conditions: Testing Rules and Policies for the ACT® Test ("Terms and Conditions"). When Harrison Cherdak sat for the April 2018 test in Montgomery County, Maryland, he was also required to affirm in writing on his answer sheet that he agreed to comply with and be bound by the same Terms and Conditions provided during his registration process. Harrison Cherdak received a composite score of 32 out of 36 on the April 2018 administration of the test.

I. 2017-2018 Terms and Conditions

The 2017-2018 Terms and Conditions are contained in a document that states, in relevant part, that by "registering for and/or taking the ACT test," the test taker agrees "to be bound by, and will comply with, these Terms and Conditions and other ACT policies for the ACT test[.]" Terms and Conditions ("T & C") at 4, First Amended Complaint Ex. 1, ECF No. 19-1. The Terms and Conditions provide that the ACT may conduct an "Individual Score Review" if it suspects a reason to invalidate a test score and may, in fact, cancel the test taker's score. Id. at 6. The terms relating to Individual Score Reviews ("the ISR Provision") provide that:

Individual Score Reviews

If ACT discovers any reason to believe your score may be invalid—such as evidence of unusual similarities in the answers of you and another examinee, evidence that you may have falsified your identity or impersonated someone else, evidence of possible advance access to test questions or answers, or other indicators the test scores may not accurately reflect your level of educational achievement—ACT may conduct an Individual Score Review. ACT reserves the right to cancel test scores when there is reason to believe the scores are invalid. Proof of misconduct is not required to cancel scores.

ACT will take steps to notify you if ACT decides to conduct an Individual Score Review. The notice includes information about why ACT has started the Individual Score Review and options available for resolving it. If the scores that are the subject of the Individual Score Review have not yet been reported by ACT, ACT reserves the right to hold those scores pending the outcome of the review process, including any appeal. More information regarding the review process will be provided to you if ACT opens an Individual Score Review regarding your score.

Id. Included in the ISR Provision is a clause requiring that any dispute relating to the ISR be resolved through binding arbitration ("the ISR Arbitration Clause"):

For Individual Score Reviews, the final and exclusive remedy available for you to appeal or otherwise challenge a decision by ACT to cancel your test score is binding arbitration. The arbitration will be conducted through written submissions to the American Arbitration Association ("AAA"), unless both you and ACT agree to submit the matter to an alternative arbitration forum. By agreeing to arbitration in accordance with these Terms and Conditions, you are waiving your right to have your dispute heard by a judge or jury. If you choose to appeal a decision by ACT to cancel your test scores by exercising your right to seek arbitration of that decision, you must pay a nonrefundable filing fee of $200 to the AAA (or alternate forum) as your share of the filing fee, and ACT will pay the remainder of the filing fee. Your share of the filing fee is payable in full when a request for arbitration is filed with the AAA, but will be reimbursed by ACT if you prevail in arbitration and your scores are not cancelled. The only issue for arbitration will be whether ACT acted reasonably and in good faith in deciding to cancel the scores. No damages may be awarded by the arbitrator and each party is responsible for its own fees and expenses, including attorneys' fees, except as otherwise expressly provided in these Terms and Conditions. No arbitration involving the outcome of an Individual Score Review may be maintained as a class action, and the arbitrator shall not have the authority to combine or aggregate the disputes of more than one individual, conduct any class proceeding, make any class award, or make an award to any person or entity not a party to the arbitration.

Id. Within the Terms and Conditions, a second arbitration provision ("the General Arbitration Clause") governs all other disputes that do not involve Individual Score Reviews:

Arbitration of Disputes with ACT

All disputes—other than disputes involving "Individual Score Reviews" (described above) or infringement of ACT's intellectual property rights—that relate in any way to registering for or taking the ACT test, requesting or receiving accommodations or supports on the ACT test, the reporting of ACT test scores or the use or disclosure of personal information by ACT, shall be resolved by a single arbitrator through binding arbitration administered by the American Arbitration Association ("AAA"), under the AAA Consumer Rules ("AAA Rules") in effect at the time a request for arbitration is filed with the AAA. Copies of the AAA Rules can be located at www.adr.org. No arbitration may be maintained as a class action, and the arbitrator shall not have the authority to combine or aggregate the disputes of more than one individual, conduct any class proceeding, make any class award, or make an award to any person or entity not a party to the arbitration. By agreeing to arbitration in accordance with these Terms and Conditions, you are waiving your right to have your dispute heard by a judge or jury.

Each party will be responsible for its own fees and expenses incurred in connection with the arbitration, regardless of the outcome of the arbitration, except as otherwise expressly provided in these Terms and Conditions. In no event shall ACT be liable to an examinee for any special, indirect, consequential, exemplary, or punitive damages.

NOTE : Separate procedures apply to arbitration proceedings involving Individual Score Reviews. Those procedures are discussed above, under the heading "Individual Score Reviews."

Id. at 7. Finally, the Terms and Conditions state that they are "subject to change until 48 hours prior to your test date." Id. Registrants are instructed: "You agree to check (www.act.org/the-act/terms.html) for revised Terms and Conditions at that time, and if you do not agree to the applicable terms, to notify ACT prior to the test of your intent to cancel your registration pursuant to this provision." Id.

II. Individual Score Review

On September 28, 2018, ACT notified Harrison Cherdak by letter that it was instituting an Individual Score Review ("ISR") pursuant to the Terms and Conditions due to apparent irregularities with his April 2018 test. Specifically, ACT stated that the increase in his subject matter and overall composite scores was greater than it typically observes, and that there were an unusually high number of identical responses and identical incorrect responses on his answer sheet when compared with another examinee's answer sheet. ACT informed Harrison Cherdak that he could opt either to: (1) cancel his April 2018 score; (2) take a private retest at ACT's expense, for the purpose of confirming the validity of the April 2018 score; or (3) provide certain documentation to ACT's Test Security Review Panel ("Review Panel") to help establish the validity of the April 2018 score. The letter further stated that if the...