Gerdes v. Experian Information Solutions Inc. and Trans Union LLC

Background

In January 2018, plaintiff Lucas Gerdes enrolled in CreditWorks, a credit monitoring service. As part of enrollment, Gerdes accepted a Terms of Use Agreement containing an Arbitration Agreement. The Agreement was updated over time, and Gerdes used the CreditWorks service both before and after those updates. The updated Agreement expressly stated that "[a]ll issues are for the arbitrator to decide including . . . whether you or ECS, through litigation conduct or otherwise, waived the right to arbitrate." Gerdes does not dispute that he is bound by the updates.

In July 2025, Gerdes filed a complaint against Experian, Equifax Information Services LLC, and Trans Union LLC alleging violations of the Fair Credit Reporting Act (FCRA), the federal statute governing how credit reporting agencies collect, use, and share consumer credit information.

The Motion

Experian moved to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1–16. The FAA establishes a strong federal policy favoring arbitration and provides that written arbitration agreements are valid and enforceable. Under the FAA, a court's role is limited to two questions: (1) whether a valid arbitration agreement exists, and (2) whether the agreement covers the dispute at issue. If both questions are answered yes, the court must compel arbitration. The party opposing arbitration bears the burden of showing the agreement is invalid or does not cover the claims.

Gerdes's Arguments

Gerdes did not dispute that a valid arbitration agreement exists. Instead, he raised two arguments: first, that Experian had waived its contractual right to arbitrate by significantly participating in litigation before moving to compel arbitration; and second, that this waiver question was for the court — not the arbitrator — to resolve.

The Court's Analysis

The court rejected both arguments, focusing on the second (the threshold question of who decides waiver). The Agreement's delegation clause explicitly assigned to the arbitrator all issues, including whether a party waived the right to arbitrate through litigation conduct. The court noted that the cases Gerdes cited — including Sitzer v. National Association of Realtors, 12 F.4th 853 (8th Cir. 2021) — did not involve arbitration agreements that expressly delegated the waiver-through-litigation-conduct question to the arbitrator. The court also cited Lamonaco v. Experian Information Solutions, Inc., 141 F.4th 1343 (11th Cir. 2025), which distinguished between the default rule that waiver is presumptively a court question and situations where the parties have expressly agreed to delegate waiver to the arbitrator. Because the parties here clearly and expressly agreed to arbitrate the waiver question, the court concluded Gerdes's claims fall within the scope of the Agreement and that the arbitrator — not the court — must decide the waiver issue.

Disposition

The court granted Experian's Motion to Compel Arbitration. All proceedings in the case are stayed (paused) pending the outcome of arbitration. The parties were directed to commence arbitration in accordance with their Agreement's procedures, with a warning that failure to do so may result in dismissal of the action. The parties must also file a joint letter within ninety days updating the court on the status of arbitration.