On March 12, the U.S. District Court for the Western District of Pennsylvania granted a credit reporting company’s motion to compel arbitration in a case alleging violations of the FCRA. The plaintiff alleged that the defendant mixed his credit file with that of an unrelated consumer and published inaccurate information to third parties. The defendant moved to compel arbitration, arguing that the plaintiff had agreed to an arbitration provision when he enrolled in the defendant’s credit monitoring service in July 2016 through a clickwrap process on the company’s website. The clickwrap process required the plaintiff to complete two webforms, one of which included a disclosure stating that clicking “Submit Secure Order” constituted acceptance of the “Terms of Use Agreement,” which contained an arbitration agreement. The plaintiff opposed the motion, declaring under penalty of perjury that he was unaware he had signed up for credit monitoring or agreed to arbitrate any claims, and challenged both the admissibility of a supporting declaration from the defendant’s affiliate and the enforceability of the clickwrap agreement under Pennsylvania law.

The court rejected both challenges. With respect to the defendant’s declaration, the court found the declarant had sufficient firsthand knowledge to attest to the account creation, citing multiple circuit court decisions that upheld “substantially similar” declarations in other cases. The court also held that the hyperlinked Terms of Use Agreement displayed in bold blue text was reasonably conspicuous, such that a “reasonably prudent” internet user would have seen it, and that the plaintiff could not have enrolled without clicking the submission button. The court applied an objective standard of assent, holding that an internet user need not actually read the terms and conditions to be bound, so long as notice of their existence was provided, and the plaintiff’s subjective lack of recollection was immaterial. The court further found that the arbitration provision itself was prominently displayed in capitalized terms with clear and unambiguous language waiving the right to sue, and ordered the case to arbitration.