Vickie Forby signed up for a ‘free’ credit report on Scoresense.com, a website operated by One Tech. She entered her credit card information, authorizing a $1.00 charge ostensibly to verify her identity and obtain her report. The website required Forby to navigate through five enrollment pages, each containing a hyperlink to the Terms and Conditions, which she had to agree to by checking a box before completing the process. The terms advise in all-caps that, by enrolling, “you authorize us to charge your credit card … the stated enrollment or transaction amount and/or processing fees … per month after your free trial has expired,” and then, in regular text, that “your enrollment will continue month-to-month unless and until you cancel.” This is known as ‘negative option billing’ because customers must opt out to stop the charges, rather than opting in to approve them. The terms also include a binding arbitration clause.
Forby claims she did not realize she was enrolled in a negative-option program until discovering multiple monthly charges of $29.95. She also claims One Tech ignored her request to be removed from the program. She therefore filed a class action in Illinois, claiming violations of the Illinois Consumer Fraud Act and unjust enrichment under Illinois law. One Tech removed the case to the Southern District of Illinois, which transferred it to the Northern District of Texas, in accordance with the forum-selection clause contained within the online terms and conditions.
One Tech then moved to dismiss for failure to state a claim, arguing that its website was not deceptive, that it did not engage in unfair conduct, and that Forby had at most alleged a breach of contract. The District Court granted One Tech’s motion as to Forby’s unjust enrichment claim, but denied it as to her Illinois Consumer Fraud Act claim.
Only then did One Tech move to compel arbitration. The district court granted the motion, but the Fifth Circuit reversed on appeal. Although One Tech was fully aware of its right to compel arbitration when it filed its 12(b)(6) motion to dismiss, the Court found, it pursued and partially obtained a dismissal with prejudice, showing a desire to resolve the dispute in litigation rather than arbitration. “If this case were to proceed to arbitration, Forby would have to re-litigate” her claims “in front of an arbitrator after One Tech already tested its arguments with a district court judge.” The Court accordingly vacated the order compelling arbitration and remanded the case back to the District Court. Forby v. One Technologies, L.P., 909 F.3d 780, 785-786 (5th Cir. 2018).
Forby was then granted leave to file a second amended complaint, adding a new claim under the Credit Repair Organizations Act. One Tech moved again to compel arbitration, arguing that because Forby’s second amended complaint had significantly reshaped and broadened this case, One Tech’s waiver should be rescinded. Defendant argued that, at the very least, it should be able to arbitrate the Federal claim because it could not possibly have waived its right to arbitrate that new claim, which was raised after the previous waiver occurred.
The District Court denied One Tech’s motion, reasoning that Forby’s second amended complaint did not alter the scope or theory of the underlying litigation in an unforeseeable way, but, rather, turned on the same core of operative facts underlying the Illinois Consumer Fraud Act claim. The potential class, moreover, the District Court found, was not significantly expanded by the Federal claim.
One Tech filed an interlocutory appeal, pressing only the argument that its prior waiver of arbitral rights does not extend to the Federal claims raised for the first time in the second amended complaint.
The U.S. Fifth Circuit agreed with the defendant:
“To be sure, One Tech previously sought to dismiss Forby’s Illinois Consumer Fraud Act and unjust enrichment claims. This action, we held, demonstrated a desire to resolve the dispute in litigation rather than arbitration. But that invocation of judicial process pertained only to the claims One Tech sought to dismiss. Obviously, those claims did not (and, indeed, could not) include the Federal claims. Forby raised the Credit Repair Organizations Act claims only after we remanded and after the district court permitted her to amend her complaint.”
Forby v. One Technologies, No.20-10088, 2021 WL 4167262 (5th Cir. Sept. 14, 2021).