Audish v. American Express Company

Background

Andrea Audish brought a putative class action against American Express Company, which the opinion identifies as American Express National Bank. Audish alleged that American Express made prerecorded debt-collection calls to consumers nationwide, including calls about a company credit card issued to her former employer. Audish alleged that she returned the card after leaving her employment, did not owe the debt, and continued receiving calls in 2020 and 2021 after telling American Express to stop.

Audish asserted claims under the Telephone Consumer Protection Act. American Express moved under the Federal Arbitration Act to compel arbitration and stay the court case. The card stated that its use was subject to the Cardmember Agreement. That agreement allowed either party to elect arbitration, barred court litigation and jury trials for arbitrated claims, and required covered claims to proceed individually rather than as class or representative actions.

Court’s analysis

The parties disputed which state’s law should govern whether an arbitration agreement was formed. American Express relied on the agreement’s Utah choice-of-law provision, while Audish argued for New York law and disputed that she had agreed to arbitrate. The court did not resolve the choice-of-law issue because the parties agreed that New York and Utah law were substantively similar on contract formation. The court applied New York law to that question.

The court explained that, before compelling arbitration, it had to determine whether the parties agreed to arbitrate and whether the claims fell within the agreement’s scope. Under the court’s reading of New York law, using a credit card establishes assent to the card’s terms even if the user did not sign or read the agreement. Audish conceded that she used the card and did not dispute that it stated that use was subject to the Cardmember Agreement. The court therefore rejected her arguments that she had not signed, read, or otherwise assented to the agreement.

The court also concluded that the arbitration provision covered Audish’s claims. The provision broadly defined covered claims to include disputes arising from or relating to the account, the agreement, or related relationships, including claims based on statutes. The court held that this language covered Audish’s claims under the Telephone Consumer Protection Act. Because the agreement required covered claims to be arbitrated individually, the putative class allegations could not proceed in court or in class arbitration under the quoted agreement.

Ruling

The court granted American Express’s motion to compel arbitration and stayed the action pending completion of arbitration. The Clerk of Court was directed to close ECF 15. The opinion was signed by United States Magistrate Judge Ona T. Wang.