Fridman v. 1-800 Contacts, Inc.

554 F.Supp.3d 1252

Michael FRIDMAN, Plaintiff,

v.1-800 CONTACTS, INC., Defendant.

Case No. 21-cv-21700-BLOOM/Otazo-Reyes

United States District Court, S.D. Florida.

Signed August 12, 2021

Entered August 13, 2021

Avi Robert Kaufman, Kaufman P.A., Brian Levin, Levin Law, P.A., Miami, FL, for Plaintiff.

Jason Henry Baruch, Jessica Sarah Kramer, Holland & Knight, Tampa, FL, Mark S. Melodia, Pro Hac Vice, Holland & Knight LLP, New York, NY, Brandon T. White, Reed Smith, LLP, Miami, FL, for Defendant.

ORDER MOTION TO COMPEL ARBITRATION, STRIKE CLASS ALLEGATIONS, AND DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant 1-800 Contacts, Inc.’s Motion to Compel Arbitration, Strike Class Allegations, and Dismiss or, in the Alternative, Stay Proceedings, ECF No. [12] ("Motion"). Plaintiff Michael Fridman ("Fridman" or "Plaintiff") filed a Response, ECF No. [23], to which Defendant filed a Reply, ECF No. [24]. The Court has carefully considered the Motion, the Response and Reply, including any relevant exhibits, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is denied.

I. BACKGROUND

Plaintiff initiated this class action against Defendant on March 16, 2021, in the Eleventh Judicial Circuit Court in and form Miami-Dade County, Florida. See ECF No. [1-1]. On May 3, 2021, Defendant removed the above-styled case to this Court, alleging jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). ECF No. [1] ("Notice"). Plaintiff's Complaint asserts claims for violation of the Florida Security of Communications Act ("FSCA"), Florida Statutes, Sections 934.03 (Count 1), 934.04 (Count 2), and invasion of privacy (Count 3).

In the Complaint, Plaintiff alleges that Defendant utilizes the services of Quantum Metric, Inc. ("QM") to provide marketing analytics software for its website, 1800contacts.com ("Website"). QM's software provides a feature called "Session Replay" that allows a company to essentially reproduce any user's interaction with a website for the purpose of helping businesses improve their website design and customer experience. In the process of recording a user's interactions with a website, Session Replay collects sensitive user information such as passwords and credit card numbers, which leaves users vulnerable to data leaks. Plaintiff contends that QM's software, as used by Defendant, functions as a wiretap.

Plaintiff alleges further that QM's Replay Session feature recorded Plaintiff's keystrokes and mouse clicks on Defendant's Website when he visited it at the end of 2020 and placed an order for prescription contact lenses. According to Plaintiff, the QM wiretap captured other data, including the date, time, and duration of his visit, Plaintiff's IP address, location, browser type, and operating system. Plaintiff contends that QM's software additionally captures personally identifiable information and protected health information without seeking a user's consent.

In the Motion, Defendant seeks to compel arbitration of Plaintiff's claims individually based upon the Website's Terms of Service ("Terms"), which include an arbitration provision and a class-action waiver provision. In support of the Motion, Defendant has submitted the Declaration of Rico Lujan, ECF No. [12-1] ("Lujan Declaration"), which attaches two exhibits (Defendant's Terms and an Order Summary Page), and the Declaration of Brad Scott, ECF No. [12-2] ("Scott Declaration"). Plaintiff filed his Response, attaching the Declaration of Brian Levin, ECF No. [23-1] ("Levin Declaration"), which includes ten supporting exhibits (illustrating the account set-up and navigation process on Defendant's Website), the Declaration of Michael Fridman, ECF No. [23-2] ("Fridman Declaration"), the receipt for Plaintiff's December 25, 2020 purchase, ECF No. [23-3], and a copy of the court's opinion in Vitacost.com, Inc. v. McCants , No. 4D16-3384 (published at 210 So. 3d 761 (Fla. 4th DCA 2017) ). To its Reply, Defendant attaches additional printouts of screenshots from the website. See ECF No. [24-1].

II. LEGAL STANDARD

The presence of a valid arbitration provision raises a strong presumption in favor of enforcement. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 630-31, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (stressing that the enforcement of a mutually agreed upon arbitration or forum-selection clause serves as an "indispensable precondition to the achievement of the orderliness and predictability essential to any international business transaction"). Indeed, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq. , "embodies a ‘liberal federal policy favoring arbitration agreements.’ " Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs. , 553 F.3d 1351, 1366 (11th Cir. 2008) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ). Accordingly, the FAA requires courts to "rigorously enforce agreements to arbitrate." Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc. , 312 F.3d 1349, 1357-58 (11th Cir. 2002) (quoting Mitsubishi Motors Corp. , 473 U.S. at 625-26, 105 S.Ct. 3346 ), abrogated on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs & Participating Emp'rs , 571 U.S. 177, 134 S. Ct. 773, 187 L.Ed.2d 669 (2014) ; see also Hemispherx Biopharma, Inc. , 553 F.3d at 1366 (citing Dean Witter Reynolds, Inc. v. Byrd , 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) ). Under the FAA, a written agreement to arbitrate is "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.

Despite courts’ proclivity for enforcement, a party will not be required to arbitrate where it has not agreed to do so. See Nat'l Auto Lenders, Inc. v. SysLOCATE, Inc. , 686 F. Supp. 2d 1318, 1322 (S.D. Fla. 2010), aff'd , 433 F. App'x 842 (11th Cir. 2011) (citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ). "Under federal law, arbitration is a matter of consent, not coercion." World Rentals & Sales, LLC v. Volvo Constr. Equip. Rents, Inc. , 517 F.3d 1240, 1244 (11th Cir. 2008). It is axiomatic that the determination of whether parties have agreed to submit a dispute to arbitration is an issue of law subject to judicial resolution. See Granite Rock Co. v. Int'l Bhd. of Teamsters , 561 U.S. 287, 296, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010). Generally, this determination requires the district court to apply standard principles of state contract law. First Options of Chi., Inc. v. Kaplan , 514 U.S. 938, 939, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ; see also P&S Bus. Machs., Inc. v. Canon USA, Inc. , 331 F.3d 804, 807 (11th Cir. 2003).

In addition, the Court of Appeals for the Eleventh Circuit has explained that courts should "treat motions to compel arbitration similarly to motions for summary judgment." Hearn v. Comcast Cable Commc'ns, LLC , 992 F.3d 1209, 1215 n.3 (11th Cir. 2021) (citing Bazemore v. Jefferson Cap. Sys., LLC , 827 F.3d 1325, 1333 (11th Cir. 2016) (concluding "that a summary judgment-like standard is appropriate and hold[ing] that a district court may conclude as a matter of law that parties did or did not enter into an arbitration agreement only if ‘there is no genuine dispute as to any material fact’ concerning the formation of such an agreement")). Therefore, in determining whether to compel arbitration, district courts must view the facts in the light most favorable to the nonmovant. Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997).

"By its terms, the [FAA] leaves no room for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." Dean Witter Reynolds, Inc. , 470 U.S. at 213, 105 S.Ct. 1238. Thus, if the criteria above are satisfied, a court is required to issue an order compelling arbitration. See John B. Goodman Ltd. P'ship v. THF Constr., Inc. , 321 F.3d 1094, 1095 (11th Cir. 2003) ("Under the FAA, ... a district court must grant a motion to compel arbitration if it is satisfied that the parties actually agreed to arbitrate the dispute.").

III. DISCUSSION

At the outset, the Court notes that the parties do not dispute the following facts. On January 24, 2019, Plaintiff opened an account with 1-800 Contacts and made a purchase for contact lenses on the Website. Scott Declaration, ECF No. [12-2] ¶¶ 8, 9. Plaintiff made a second purchase on the website on December 25, 2020. Id. ¶ 10. Various Website pages, including the homepage and the order summary page, include a direct hyperlink to the Terms. Lujan Declaration, ECF No. [12-1] ¶¶ 11, 13.

The Terms state in pertinent part:

Welcome to the 1-800 CONTACTS, Inc. ("1-800 CONTACTS") website. The following Terms of Service govern your use of this website ("Terms"). PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION THAT MAY AFFECT YOUR LEGAL RIGHTS, INCLUDING REQUIRING INDIVIDUAL ARBITRATION OF ANY POTENTIAL LEGAL DISPUTES BETWEEN YOU AND 1-800 CONTACTS AND WAIVING ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. By using, registering with or shopping at 1800contacts.com (the "Website"), you accept these Terms, including this arbitration provision and class action waiver, so please read them carefully[.]

By using this Website, you affirm that you are able and legally competent to agree to and comply with these Terms. If you do not meet these requirements, you must not register for or purchase products from the Website.

If you do not agree to these Terms, then you may not use, register for or purchase products from the Website.

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