On July 3, the U.S. Court of Appeals for the Eleventh Circuit reversed and remanded a district court’s denial of a motion to compel arbitration, ordering that a dispute between an individual and a credit reporting company must proceed to arbitration. The appellate court held the company provided sufficient and unrebutted evidence of an agreement to arbitrate, and that because the agreement required questions of waiver be decided by an arbitrator, the district court lacked authority to decide that question.

In April 2023, a plaintiff sued the credit reporting company for failure to ensure credit report accuracy and failure to conduct a proper reinvestigation, in violation of the FCRA. The plaintiff had discovered a $26,922 auto loan reported in her credit file, but disputed the loan, alleging that someone had fraudulently obtained the loan. The company moved to compel arbitration, citing a clickwrap agreement which the plaintiff had signed with an affiliate of the company that included an arbitration clause and a delegation clause.

In support, the company produced a declaration from the corporate officer of its affiliate. The corporate officer attested that the plaintiff enrolled in the affiliate’s service, that the enrollment process included a “submit” button below a bolded reference to its terms of service, and that the plaintiff could not proceed without agreeing to those terms of service. In support, the corporate officer attached a screenshot of that page and the terms of service agreement. The district court, however, denied the motion to compel arbitration, finding the declaration, and its attachments, lacked probative value, and that the credit reporting agency failed to prove an agreement existed. In addition, because the credit reporting agency had failed to raise the issue until three months into litigation — after answering the complaint and requesting a jury trial — the district court found the credit reporting agency intended to litigate and had therefore waived its right to compel arbitration.

The appellate court reversed and remanded. The Federal Arbitration Act requires a court to hold a summary trial only if the opposing party, on the issue of contract formation, raises a genuine dispute of material fact. Applying Florida contract law, the appellate court found that the plaintiff failed to rebut or dispute any of the declaration’s facts; rather, the plaintiff disputed whether the declaration was itself sufficient to establish an agreement. In the appellate court’s view, the corporate officer’s declaration of specific facts based on personal knowledge, and supporting exhibits, was sufficient because it was unrebutted, signed under penalty of perjury, and supported by documentation. In addition, although courts presumptively (i.e., as a default) decide issues of waiver, the parties contracted for an arbitrator to resolve issues of waiver, meaning that the district court lacked the authority to decide that issue. The appellate court reversed and remanded with instructions to grant the company’s motion to compel arbitration.