Perez v. Bath & Body Works, LLC

Background

Bath & Body Works, LLC and Bath & Body Works, Inc. moved to compel arbitration of Plaintiff Andrea Brooks’s claims. Brooks had enrolled in the “My Bath & Body Works” rewards program through the company’s mobile application on September 8, 2017, and remained a member. The enrollment process required her to provide identifying information, review the program’s terms and conditions, and press an “Agree” button.

Those terms included an arbitration clause requiring disputes that could not be resolved informally to be submitted to binding arbitration under the American Arbitration Association’s rules. They also included a class-action waiver requiring disputes to be arbitrated individually. The arbitration clause remained the same in later versions of the terms that existed when Brooks made the purchases underlying her claims.

Brooks alleged that she bought Bath & Body Works’s Hydrating Body Cream in December 2018 based on her understanding that it would be exceptionally hydrating on her skin. Brooks and Carmen Perez asserted six claims against Bath & Body Works in the operative First Amended Complaint. The court had previously denied a motion to compel arbitration without prejudice because the defendants had not submitted enough evidence of the relevant agreement, but allowed a renewed motion.

Validity and enforceability of the arbitration agreement

The court held that the defendants were parties to the terms and could enforce the arbitration clause. Although the terms named other Bath & Body Works entities, they also applied to those entities’ affiliates and assignees. The court concluded that the defendants fell within that language. Brooks did not dispute that the defendants were affiliates of the named entities because they were under common ownership or control.

The court also found sufficient evidence that Brooks had agreed to the terms. The defendants submitted a declaration describing the enrollment process and images showing that users had to scroll through the terms and choose either “AGREE” or “DISAGREE.” The court found that evidence unrebutted because Brooks had not submitted her own declaration contradicting it.

The court characterized the agreement as a “scrollwrap” agreement, meaning that the user was required to review the terms before affirmatively agreeing to them. It rejected Brooks’s argument that the agreement was invalid merely because she clicked an “Agree” button rather than checking a box and then clicking a separate button. The court therefore found the arbitration clause valid and enforceable against Brooks.

Delegation of arbitrability

The court held that the parties had clearly and unmistakably delegated questions about arbitrability—the authority to decide whether a dispute must be arbitrated—to the arbitrator. The terms incorporated the American Arbitration Association rules, which give the arbitrator authority to decide issues concerning the existence, scope, and validity of the arbitration agreement.

Brooks argued that this delegation conflicted with language reserving questions about the scope, interpretation, and enforceability of the class-action waiver for a court in Ohio. The court rejected that argument, explaining that deciding whether the class-action waiver is enforceable is different from deciding whether Brooks’s claims fall within the arbitration clause. Brooks’s other arguments about the scope of the arbitration provision could be raised before the arbitrator.

Disposition

The court granted the defendants’ motion to compel arbitration of Andrea Brooks’s claims. It did not dismiss Brooks from the case immediately because the arbitrator might determine that her claims are outside the arbitration provision. The court instead stayed the case as to Brooks only.

If Brooks intends to pursue arbitration, she must begin it within 60 days and notify the court. If she does not timely file that notice, she will be dismissed from the case. If she does begin arbitration, the parties must notify the court within 10 days after the arbitrator decides whether her claims are arbitrable. The court will then either dismiss Brooks from the lawsuit without prejudice to a later action concerning any arbitration award, or lift the stay and allow her case to continue in court if the claims are not arbitrable.

The case was not stayed as to Carmen Perez. Her claims will proceed in court. Judge Beth Labson Freeman signed the order on June 30, 2022.