Doe v. Kaiser Foundation Health Plan, Inc.

Background

The plaintiffs are seven individuals proceeding anonymously: John Doe, John Doe II, Jane Doe, Jane Doe II, Jane Doe III, Jane Doe IV, and Jane Doe V. They sued Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and The Permanente Medical Group, Inc., which the court collectively called “Kaiser.”

The plaintiffs alleged that code from six third parties—Quantum Metric, Twitter, Adobe, Bing, Google, and Dynatrace—was installed on Kaiser’s website and two mobile applications. They alleged that the code allowed those third parties to intercept information in transit, including users’ patient status, identifying information, medical topics researched, choices, shared information, communications with medical providers, and other confidential medical information.

The court addressed Kaiser’s motion to compel arbitration. The opinion primarily analyzed John Doe’s claims, referring to him as “JD.”

Arbitration Agreement

John Doe enrolled in a Kaiser health plan through the Teamsters and Food Employers Security Trust Fund. The enrollment form contained an arbitration provision stating that, subject to listed exceptions, disputes between a member and Kaiser relating to membership, coverage, delivery of services, or other duties connected to the health plan had to be resolved through binding arbitration rather than a lawsuit or jury trial. The form stated that the full arbitration provision appeared in the Evidence of Coverage (EOC).

The EOC also contained a broad arbitration clause covering disputes related to the EOC or a member’s relationship with Kaiser, including claims concerning the coverage or delivery of services or items, regardless of the legal theory asserted. The EOC referred members to Kaiser’s website and mobile application for tools such as making appointments, viewing test results, refilling prescriptions, and managing benefits.

The website and mobile applications had separate Terms and Conditions (TAC). The TAC stated that using the site or accepting the terms signified agreement to them, and they addressed use of the site and Kaiser’s privacy statement. The TAC did not contain an arbitration provision.

Court’s Analysis

Under the Federal Arbitration Act, a court deciding whether to compel arbitration generally asks two gateway questions: whether a valid arbitration agreement exists and whether that agreement covers the dispute.

The court ruled that the EOC and the TAC were related agreements. It described the EOC as the overarching agreement governing the member-Kaiser relationship and the TAC as a subsidiary agreement governing use of online tools. The court emphasized that the EOC expressly referred members to Kaiser’s website and mobile applications, that the online tools were used in connection with health-care benefits, and that the EOC preceded the TAC. The TAC did not state that the EOC no longer applied, and neither document had an integration clause separating the agreements.

The court also considered the Ninth Circuit’s discussion of separate and related agreements in International Ambassador and Johnson. It concluded that the negotiation, consideration, and proof factors supported treating the EOC and TAC as interrelated. The court therefore held that the EOC’s arbitration agreement extended to disputes concerning the website and mobile applications.

The court further ruled that the claims fell within the arbitration clause’s scope. The clause broadly covered claims related to duties arising from the EOC or the member’s relationship with Kaiser, including claims related to the delivery of services or items. Based on the complaint’s allegations, the court found that John Doe had not clearly pleaded claims based on conduct before his April 2021 enrollment in the Kaiser health plan. The court did not decide whether any possible pre-April 2021 claims would be arbitrable because the record did not provide enough information.

Class Arbitration

The court held that the EOC did not provide a sufficient contractual basis for class arbitration. Relying on Supreme Court decisions stating that class arbitration cannot be inferred from silence or ambiguity, the court rejected John Doe’s argument that language referring to claims asserted by “one or more” members authorized class arbitration. The court ruled that John Doe could assert individual claims only in arbitration.

Disposition

Judge Edward Chen granted Kaiser’s motion to compel arbitration. The order did not decide the merits of the plaintiffs’ privacy allegations. The court stated that John Doe could amend to plead pre-April 2021 claims, but it did not set an amendment deadline because Kaiser’s motion to dismiss was still pending. The order disposed of Docket No. 82.