Driskill v. Experian Information Solutions, Inc.

Background

Travis Driskill alleged that Experian wrongfully reported eleven Affirm accounts as belonging to him after an alleged identity theft. After he disputed the reporting, Experian deleted most of the accounts but did not delete two. The opinion identifies the case as arising under the Fair Credit Reporting Act.

In February 2022, Driskill accessed his credit information through an Experian website and enrolled in CreditWorks, a service provided by Experian Consumer Services, an Experian affiliate. The sign-up page required him to enter personal information and click a “Create Your Account” button. Immediately above that button, the page stated: “By clicking ‘Create Your Account’: I accept and agree to your Terms of Use Agreement.” The words “Terms of Use Agreement” linked to the full agreement.

The versions of the Terms of Use in effect when Driskill enrolled contained an arbitration agreement covering claims against Experian Consumer Services that related to or arose from membership. The arbitration agreement defined Experian Information Solutions, Inc. as one of the affiliate entities included within “ECS.” Driskill said he did not see or understand the arbitration agreement and did not consent to giving up his Fair Credit Reporting Act rights.

Motion to Compel Arbitration

The court applied the Federal Arbitration Act and ordinary state-law contract principles. It considered whether a valid arbitration agreement existed and whether the claims fell within its terms.

The court found that the sign-up page gave Driskill clear notice of the Terms of Use. The hyperlink was displayed in contrasting blue text, appeared directly above the account-creation button, and informed users that clicking the button would constitute acceptance of the terms. The court characterized the arrangement as a modified clickwrap, or sign-in-wrap, agreement. Because Driskill clicked the button to create his account, the court found that he objectively manifested assent to the Terms of Use and concluded that an arbitration agreement existed.

The court also rejected Driskill’s factual challenge. Driskill said he did not see the hyperlink and did not realize that creating an account formed a contract. The court concluded that these statements did not create a genuine factual dispute, in part because they did not contradict the evidence that he created the account and because his uncorroborated declaration could not overcome the webpage itself.

The court rejected Driskill’s argument that Experian could not enforce the arbitration agreement because it was not a direct signatory to the Terms of Use. Relying on Ninth Circuit authority, including a decision involving what appeared to be the same Terms of Use, the court held that Experian was included as a party to the arbitration provision because the provision defined “ECS” to include affiliates.

The court also rejected Driskill’s argument that his claims did not arise from the Terms of Use. It stated that the arbitration agreement delegated questions about the scope of arbitration to the arbitrator and found Driskill’s cited authorities unhelpful. The court therefore granted Experian’s motion to compel arbitration of Driskill’s claims against Experian.

Motion for Discovery

Driskill sought discovery about mutual assent, the evidence supporting Experian’s description of the sign-up process, possible consumer confusion, and other consumers’ understanding of the webpage. He also described plans to retain experts concerning digital-product deception and consumer understanding.

The court denied the discovery request. It concluded that Driskill had not presented an alternative challenge to contract formation that would make the requested discovery helpful. Because the court found that the webpage established notice and assent, and because the requested evidence would not change its contract-formation analysis, it determined that the making of the arbitration agreement was not sufficiently in dispute to warrant discovery.

Disposition

Judge Araceli Martinez-Olguin granted Experian’s motion to compel arbitration and denied Driskill’s motion for discovery. The court stayed Driskill’s claims against Experian pending arbitration. It also ordered Driskill and Affirm, Inc. to meet and confer about whether the stay should extend to Driskill’s claims against Affirm. Within 21 days, they were ordered to file either a stipulation staying the entire action or a joint letter brief stating their positions on the scope of the stay.