Mey v. DirecTV, LLC, No. 18-1534

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtRUSHING, Circuit Judge
Citation971 F.3d 284
Docket NumberNo. 18-1534
Decision Date07 August 2020
Parties Diana MEY, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff - Appellee, v. DIRECTV, LLC, Defendant - Appellant, and Adam Cox ; AC1 Communications; IQ Marketing 2, Corp., d/b/a Pacificom; Michael Asghari, Defendants.

971 F.3d 284

Diana MEY, individually and on behalf of a class of all persons and entities similarly situated, Plaintiff - Appellee,
v.
DIRECTV, LLC, Defendant - Appellant,
and
Adam Cox ; AC1 Communications; IQ Marketing 2, Corp., d/b/a Pacificom; Michael Asghari, Defendants.

No. 18-1534

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2020
Decided: August 7, 2020


ARGUED: Evan Mark Tager, MAYER BROWN LLP, Washington, D.C., for Appellant. Ryan McCune Donovan, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for Appellee. ON BRIEF: Archis A. Parasharami, Daniel E. Jones, MAYER BROWN LLP, Washington, D.C., for Appellant. J. Zak Ritchie, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia; John W. Barrett, Jonathan R. Marshall, BAILEY GLASSER LLP, Charleston, West Virginia, for Appellee.

Before FLOYD, HARRIS, and RUSHING, Circuit Judges.

Vacated and remanded by published opinion. Judge Rushing wrote the majority opinion, in which Judge Floyd joined. Judge Harris wrote a dissenting opinion.

RUSHING, Circuit Judge:

Diana Mey sued DIRECTV, LLC and others, alleging that they violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by calling her cellular telephone to advertise DIRECTV products and services even though her telephone number is listed on the National Do Not Call Registry. DIRECTV moved to compel arbitration, asserting that the dispute was covered by an arbitration agreement in the contract governing Mey's cellular phone service from AT & T Mobility LLC, a DIRECTV affiliate. The district court denied the motion, concluding that the dispute did not fall within the scope of the arbitration agreement. On appeal, Mey defends the district court's scope ruling and alternatively argues that no agreement was formed. We conclude that Mey formed an agreement to arbitrate with DIRECTV and that this dispute fits within the broad scope of that agreement, construed, as it must be, to favor arbitration.

I.

On March 16, 2012, at an AT & T retail store, Mey opened a new line of service under her husband's existing AT & T Mobility account, for which she was an authorized user. During that transaction, Mey was electronically presented with the AT & T Wireless Customer Agreement, which she could read on the screen or print. After she pressed an on-screen button to "accept" the agreement, Mey electronically signed an acknowledgment saying: "I have reviewed and agree to the rates, terms, and conditions for the wireless products and services described in the Wireless Customer Agreement (including limitation of liability and arbitration provisions) and the Customer Service Summary, both of which were made available to me prior to my signing." J.A. 86. As relevant here, the Wireless Customer Agreement provides that "[y]ou consent to the use by us or our authorized agents of regular mail, predictive or autodialing equipment, email, text messaging, facsimile or other reasonable means to contact you to advise you about our Services or

971 F.3d 287

other matters we believe may be of interest to you." J.A. 98.

The Wireless Customer Agreement also includes an arbitration agreement, which provides as follows:

AT & T and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;

• claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);

• claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and

• claims that may arise after the termination of this Agreement.

References to "AT & T," "you," and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or Devices under this or prior Agreements between us.

J.A. 102. The arbitration agreement also outlines the procedures to be used, including, among others, provisions forbidding class proceedings, requiring AT & T to pay at least $10,000 and double attorneys’ fees for any claim found in the customer's favor if the award is greater than the value of AT & T's last written settlement offer, requiring AT & T to pay all arbitration costs for any nonfrivolous claim under $75,000, and preserving both parties’ right to bring a claim in small claims court as an alternative to arbitration. "[I]ssues relating to the scope and enforceability" of the arbitration agreement are reserved for courts; otherwise, "[a]ll issues are for the arbitrator to decide." J.A. 103.

In 2015, AT & T, Inc. acquired DIRECTV. AT & T, Inc. now owns both AT & T Mobility and DIRECTV through other corporate entities.

In December 2017, Mey filed a class action complaint against DIRECTV and its hired agents, alleging that DIRECTV's agents unlawfully made automated and pre-recorded telemarketing calls to her AT & T Mobility phone number earlier that year when her number was listed on the National Do Not Call Registry. Mey alleged three counts of violating the TCPA and sought class certification, statutory damages, and injunctive relief.

DIRECTV moved to compel arbitration based on the arbitration agreement in AT & T Mobility's Wireless Customer Agreement. The district court denied the motion on the ground that "the dispute in this case ... does not fall within the ambit of the arbitration agreement." J.A. 230. The district court reasoned that "the receipt of a telephone call from [DIRECTV] was not an immediate, foreseeable result of the performance[ ] of the parties’ contractual duties or AT & T Mobility's services," J.A. 230, relying on out-of-circuit cases interpreting arbitration provisions that covered disputes "arising out of or relating to" the underlying contracts in those cases, see J.A. 224. The court ultimately concluded that "the arbitration clause in this case is susceptible of a construction limiting the duty to arbitrate to disputes arising under or relating to the provision of cellular telephone service," but the court noted in passing its belief that "a construction which does not so limit the scope of the

971 F.3d 288

arbitration clause would be unconscionably overbroad." J.A. 233.

DIRECTV filed this interlocutory appeal. We have jurisdiction under 9 U.S.C. § 16(a)(1).

II.

We review a district court's denial of a motion to compel arbitration de novo. Sydnor v. Conseco Fin. Servicing Corp. , 252 F.3d 302, 304–305 (4th Cir. 2001). In addition to defending the district court's ruling that this dispute is beyond the scope of the arbitration agreement, Mey also contends that we can affirm on the alternative ground that no agreement to arbitrate was formed. We first address whether an agreement was formed and, finding it was, move on to address the scope of that agreement.

A.

Arbitration is a matter of contract. The Federal Arbitration Act (FAA), which the parties agree applies here, provides that arbitration contracts are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The Act thereby "places arbitration agreements on equal footing with all other contracts," Buckeye Check Cashing, Inc. v. Cardegna , 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and requires courts to enforce them according to their terms, Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ. , 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). As with any contract, we must first be satisfied that an agreement to arbitrate has been formed. We resolve this question according to state law principles governing contract formation. See Adkins v. Labor Ready, Inc. , 303 F.3d 496, 501 (4th Cir. 2002) ; cf. Granite Rock Co. v. Int'l Brotherhood of Teamsters , 561 U.S. 287, 296, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) (formation is "generally for courts to decide").

1.

Mey first argues that she did not sign the arbitration agreement with AT & T Mobility, therefore it does not bind her under West Virginia law. We disagree.

When she opened the new line of service for the cellular phone number involved in the TCPA allegations, Mey signed an acknowledgment stating: "I have reviewed and agree to the rates, terms, and conditions for the wireless products and services described in the Wireless Customer Agreement (including limitation of liability and arbitration provisions ) ...." J.A. 86 (emphases added). That acknowledgement suffices to demonstrate her assent to the arbitration agreement. See New v. GameStop, Inc. , 232 W.Va. 564, 753 S.E.2d 62, 72–73 (2013) (employee agreed to arbitrate by virtue of signing acknowledgement of arbitration policy and continuing employment after receiving policy); cf. Citizens Telecomms. Co. of W. Va. v. Sheridan , 239 W.Va. 67, 799 S.E.2d 144, 149–150 (2017) (customer assented to arbitration agreement by continuing internet service after receiving notice that service provider had amended the terms and conditions of service to add arbitration...

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26 practice notes
  • McFarlane v. Altice USA, Inc., 20-CV-1297 (JMF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 8, 2021
    ...1162. The Arbitration Provision is thus an example of a "relatively new and untested" species of arbitration clause, Mey v. DIRECTV, LLC , 971 F.3d 284, 302 (4th Cir. 2020) (Harris, J., dissenting), which one scholar has aptly dubbed an "infinite arbitration clause," David Horton, Infinite ......
  • Malamatis v. ATI Holdings, LLC, Civil Action ELH-21-2226
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • May 19, 2022
    ...agreements according to their terms.” Lamps Plus, Inc. v. Varela, ___ U.S. ___, 139 S.Ct. 1407, 1412 (2019); see also Mey v. DIRECTV, LLC, 971 F.3d 284, 288 (4th Cir. 2020); McCormick v. Am. Online, Inc., 909 F.3d 677, 679 (4th Cir. 2018). “Arbitration is a matter of contract.” Mey, 909 F.3......
  • Lyons v. PNC Bank, Nat'l Ass'n, No. 21-1058
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 15, 2022
    ...arbitration.II. We review a district court's determination regarding the arbitrability of a dispute de novo. See Mey v. DIRECTV, LLC , 971 F.3d 284, 288 (4th Cir. 2020) ; Aggarao v. MOL Ship Mgmt. Co., Ltd. , 675 F.3d 355, 365 (4th Cir. 2012) ("We review de novo a district court's determina......
  • Revitch v. DirecTV, LLC, No. 18-16823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 30, 2020
    ...pertinently, an arbitration clause identical to that signed by Revitch), has arrived at the opposite conclusion. See Mey v. DIRECTV, LLC , 971 F.3d 284 (4th Cir. 2020). Moreover, we are aware that with our decision today, we are opening a circuit split on this difficult issue: Can anything ......
  • Request a trial to view additional results
26 cases
  • McFarlane v. Altice USA, Inc., 20-CV-1297 (JMF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 8, 2021
    ...1162. The Arbitration Provision is thus an example of a "relatively new and untested" species of arbitration clause, Mey v. DIRECTV, LLC , 971 F.3d 284, 302 (4th Cir. 2020) (Harris, J., dissenting), which one scholar has aptly dubbed an "infinite arbitration clause," David Horton, Infinite ......
  • Malamatis v. ATI Holdings, LLC, Civil Action ELH-21-2226
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • May 19, 2022
    ...agreements according to their terms.” Lamps Plus, Inc. v. Varela, ___ U.S. ___, 139 S.Ct. 1407, 1412 (2019); see also Mey v. DIRECTV, LLC, 971 F.3d 284, 288 (4th Cir. 2020); McCormick v. Am. Online, Inc., 909 F.3d 677, 679 (4th Cir. 2018). “Arbitration is a matter of contract.” Mey, 909 F.3......
  • Lyons v. PNC Bank, Nat'l Ass'n, No. 21-1058
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 15, 2022
    ...arbitration.II. We review a district court's determination regarding the arbitrability of a dispute de novo. See Mey v. DIRECTV, LLC , 971 F.3d 284, 288 (4th Cir. 2020) ; Aggarao v. MOL Ship Mgmt. Co., Ltd. , 675 F.3d 355, 365 (4th Cir. 2012) ("We review de novo a district court's determina......
  • Revitch v. DirecTV, LLC, No. 18-16823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 30, 2020
    ...pertinently, an arbitration clause identical to that signed by Revitch), has arrived at the opposite conclusion. See Mey v. DIRECTV, LLC , 971 F.3d 284 (4th Cir. 2020). Moreover, we are aware that with our decision today, we are opening a circuit split on this difficult issue: Can anything ......
  • Request a trial to view additional results

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