Temple v. Best Rate Holdings LLC

• Decision Date: 27 December 2018
• Docket Number: Case No: 8:18-cv-176-T-36JSS
• Citation: 360 F.Supp.3d 1289
• Parties: John TEMPLE, Plaintiff, v. BEST RATE HOLDINGS LLC and Lending Tree Inc., Defendants.
• Court: U.S. District Court — Middle District of Florida

360 F.Supp.3d 1289

John TEMPLE, Plaintiff,

v.BEST RATE HOLDINGS LLC and Lending Tree Inc., Defendants.

Case No: 8:18-cv-176-T-36JSS

United States District Court, M.D. Florida, Tampa Division.

Signed December 27, 2018

Patrick H. Peluso, Pro Hac Vice, Steven L. Woodrow, Pro Hac Vice, Woodrow & Peluso, LLC, Denver, CO, Ryan S. Shipp, Law Office of Ryan S. Shipp, PLLC, Lantana, FL, for Plaintiff.

Amy E. Stoll, Barnett, Bolt, Kirkwood, Long & Koche, Tampa, FL, Ethan McLeod Knott, Kilpatrick Townsend & Stockton, LLP, Atlanta, GA, for Defendants.

ORDER

Charlene Edwards Honeywell, United States District Judge

This cause comes before the Court upon DefendantBest Rate Holdings, LLC's ("Best Rate")Motion to Compel Arbitration(Doc. 18), PlaintiffJohn Temple's ("Plaintiff") response in opposition (Doc. 25), Best Rate's reply in support of its motion (Doc. 30), DefendantLending Tree, LLC's¹("Lending Tree")Motion to Compel Arbitration and Stay Proceedings(Doc. 20), Plaintiff's response in opposition (Doc. 26), and Lending Tree's reply in support of its motion (Doc. 31).

In its motion, Best Rate argues that it and Plaintiff agreed to submit all issues, including gateway questions of arbitrability, to arbitration.Alternatively, Best Rate argues, if the Court determines that gateway questions of arbitrability are for the Court to decide instead of the arbitrator, then the Court should hold that arbitration is required pursuant to the agreement between Best Rate and Plaintiff.In response, Plaintiff argues that the agreement is not enforceable and that, even if it were, his claim falls outside the scope of arbitration.

In its motion, Lending Tree argues that it can also enforce Best Rate's and Plaintiff's agreement and compel arbitration because it is an intended third-party beneficiary.Alternatively, Lending Tree argues, Plaintiff should be estopped from avoiding arbitration with Lending Tree because Plaintiff's claim against Lending Tree is combined with his claim against Best Rate.Plaintiff disagrees with both contentions.The Court, having considered the motions and being fully advised in the premises, will grant the motions.

I.BACKGROUND

Plaintiff filed a single-count putative class action complaint against Best Rate and Lending Tree (collectively, "Defendants"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, based on purported text messages sent by Defendants to Plaintiff's wireless telephone number using an automatic telephone dialing system.Doc. 1 at ¶¶ 14-15, 28-29, 34.Best Rate is a digital marketing company that operates websites used to provide marketing and lead generation services for its advertiser customers.Doc. 18-1 at ¶ 4.Lending Tree is an online exchange that connects consumers with third-party lenders, banks, and credit partners who compete for the consumers' business.Doc. 20at p. 2.

Plaintiff began receiving the text messages at issue in February 2017, after signing up to obtain information about a one-percent mortgage loan for military veterans advertised in an e-mail message from Defendants.Doc. 1 at ¶¶ 25, 27.To obtain more information about the one-percent offer, Plaintiff clicked on the link in the e-mail message.Doc. 1 at ¶¶ 25-26;Doc. 25at p. 3.Plaintiff was taken to Best Rate's website, www.veteransvaloans.com. Doc. 18-1 at ¶ 6.Plaintiff followed various prompts on the website directing him to enter financial and contact information.Doc. 1 at ¶ 25-26;Doc. 25at p. 3;Doc. 25-1at pp. 2-7;Doc. 18-1 at ¶ 6.The website contained the following two paragraphs:

We take your privacy seriously.By clicking "GET A QUOTE", you agree to share your information with up to 4 participating lenders (potentially including Quicken Loans & Loan Depot), which may include the following lenders and partners regarding financial services and credit related offers and for them to contact you (including through automated means; e.g. autodialing, text and pre-recorded messaging) via telephone, mobile device (including SMS and MMS) and/or email, even if you are charged for the call or your telephone number is currently listed on any state, federal or corporate Do Not Call list.You agree that this consent is not a condition of purchase.That this is not a loan application and you are under no obligations.

By clicking "Get A Quote" you are accepting our Privacy Policy and Terms andConditions.

Doc. 18-1at p. 3.Clicking on the Terms and Conditions hyperlink (the "Terms and Conditions Hyperlink") would bring the website user to another page containing an agreement (the "Agreement") comprised of several paragraphs, including paragraph 19, the dispute resolution provision (the "Arbitration Provision").Doc. 18-1at pp. 2-3, 7, 14.

The Agreement provided, in pertinent part:

The following Terms and Conditions are inclusive of the Best Rate Referrals Privacy Policy ("Privacy Policy"), the Best Rate Referrals Disclosures, Disclaimers and Licenses ("Disclosures, Disclaimers and Licenses") and any and all other applicable operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the "Agreement").

...

THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER.THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.

...

19.Dispute Resolution Provisions .The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York(without regard to conflict of law principles).Should a dispute arise concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a)the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York, New York, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association; and (b) you agree to fist commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here.We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice ("Final Settlement Offer").If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is available Here.For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions.If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys' fees that your attorney accrued. ...Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration.Although we may have a right to an award of attorneys' fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.

To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Company and/or its employees, officers, directors, members, representatives and/or assigns.

Doc. 18-1at pp. 7, 14-15(emphasis in original).

After visiting the website² and providing his information, Plaintiff began receiving text messages from Defendants similar to the following: "We matched you with a Mortgage Lender to buy a home. 866-721-0351 **http://1bestmortgagerate.com/E8YH25S** Text STOP to halt[.]"Doc. 1 at ¶ 27.The referenced phone number, when dialed, connected the caller to Lending Tree.Doc. 1 at ¶ 29.The referenced website link, when clicked on, took the user to mortgageadvisor.com, a website owned and operated by Best Rate.Doc. 1 at ¶¶ 29-30.

Plaintiff continued to receive identical or nearly identical text messages approximately once per week.Doc. 1 at ¶ 28.Plaintiff decided to opt out of receiving the text messages, and replied to the text messages with the word "STOP" or "Stop" multiple times.Doc. 1 at ¶¶ 31-33.Defendants continued to send Plaintiff text messages despite Plaintiff's efforts.Doc. 1 at ¶¶ 32-33.

On January 22, 2018, Plaintiff filed the instant putative class action complaint against Defendants.Doc. 1 at ¶¶ 47-51.In response, Defendants each filed motions to compel arbitration.

II.LEGAL STANDARD

The Federal Arbitration Act("FAA") provides that written agreements to arbitrate "shall be 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.Thus, the FAA reflects federal policy favoring resolution of disputes through arbitration.Volt Info. Scis., Inc. v. Bd. of Trs. Of Leland Stanford Junior Univ. , 489 U.S. 468, 474-75, 109 S.Ct. 1248, 103 L.Ed.2d 488(1989);see alsoAT & T Mobility LLC v. Concepcion , 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742(2011)(stating that section 2 of the FAA reflects a liberal federal policy favoring arbitration)(citingMoses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1,...