Getz v. Directv, LLC

359 F.Supp.3d 1222

Daniel GETZ, Individually and on Behalf of All Others Similarly Situated, Plaintiff,

v.DIRECTV, LLC, ViaSat, Inc., and Accelerated Technology Services Group, LLC. Defendants.

Case No. 18-22802-CIV-MARTINEZ/AOR

United States District Court, S.D. Florida.

Signed February 20, 2019

Joshua Robert Levine, Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Ft. Lauderdale, FL, Scott Adam Edelsberg, Edelsberg Law PA, Aventura, FL, Andrew John Shamis, Miami, FL, for Plaintiff.

Ian M. Ross, Greenberg Traurig, P.A., Miami, FL, Colin Ward, Pro Hac Vice, Viasat, Inc., Carlsbad, CA, Hans J. Germann, Pro Hac Vice, Kyle J. Steinmetz, Mayer Brown LLP, Chicago, IL, Scott Allen Markowitz, DeMahy, Labrador, Drake, Victor, Payne & Cabeza, Fort Lauderdale, FL, Ryan Thomas Northrup, The Northrup Firm, Mobile, AL, for Defendants.

ORDER

ALICIA M. OTAZO-REYES, UNITED STATES MAGISTRATE JUDGE

THIS CAUSE came before the Court upon Defendant ViaSat, Inc.'s ("ViaSat") Motion to Compel Arbitration and to Dismiss or Stay Proceedings (hereafter, "Motion to Compel Arbitration") [D.E. 15]; and Defendant DIRECTV, LLC's ("DIRECTV") Motion and Incorporated Memorandum to Dismiss the First Amended Complaint Pursuant to Rule 12(b)(6) or, in the Alternative, to Stay the Case (hereafter, "Motion to Dismiss") [D.E. 20]. These matters were referred to the undersigned pursuant to 28 U.S.C. § 636 by the Honorable Jose E. Martinez, United States District Judge [D.E. 36]. The undersigned held a hearing on these matters on December 12, 2018 [D.E. 42]. For the reasons stated below, the Motion to Compel Arbitration [D.E. 15] and the Motion to Dismiss [D.E. 20] are DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

This class action is brought by Plaintiff Daniel Getz ("Plaintiff"), individually and on behalf of all others similarly situated, against Defendants ViaSat, DIRECTV and Accelerated Technology Services Group, LLC ("Accelerated") (together, "Defendants"), alleging that they violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq., by sending Plaintiff a telemarketing text message. See Amended Class Action Complaint (hereafter, "Amended Complaint") [D.E. 12 at 1-2].

On April 5, 2016, Plaintiff entered into a Customer Agreement ("Agreement") with ViaSat for residential internet services. See Agreement [D.E. 15-1]. The Agreement contained the following provision regarding contact information (hereafter, "Contact Provision"):

8.2 Contact Information. You agree that by entering into this Agreement and providing ViaSat with your wireless phone number and/or any other telephone number and/or your e-mail address, ViaSat or its agents may contact you for: (a) any account-related issues by calling or texting you at such number(s) using a prerecorded/artificial voice or text message delivered by an automatic telephone dialing system and/or using a call made by live individuals, and/or (b) for any account-related issues or for marketing purposes by sending an e-mail to such e-mail address. The consent provided here continues even if your Service terminates. If you do not wish to receive marketing emails, you may follow the opt-out instructions contained in any such email by making an opt-out request or by visiting www.exede.com/opt-out.

See Agreement [D.E. 15-1 at 6].

The Agreement also contained the following provision regarding dispute resolution (hereafter, "Arbitration Provision"):

8.4 Dispute Resolution. To expedite resolution of issues and control the costs of disputes, you and ViaSat agree that any legal or equitable claim relating to this Agreement, any addendum, or your Service (referred to as a "Claim") will be resolved as follows: We will first try to resolve any Claim informally. Accordingly, neither of us may start a formal proceeding until at least 60 days after one of us notifies the other of a Claim in writing ("Notice"). You will send your Notice to the address on the first page of this Agreement to the attention of the ViaSat Legal Department and we will send our Notice to your billing address. If you and ViaSat are unable to resolve the Claim within 60 days after Notice is received, then ViaSat and you agree to arbitrate any and all Claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

• Any Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, statute, fraud, misrepresentation, tort, or any other legal theory;

• Any Claims that arose before this Agreement or any prior agreement between us;

• Any Claims that are currently the subject of a purported class action suit in which you are not a member of a certified class; and/or

• Any Claims that may arise after the termination of this Agreement.

Id.

The Agreement incorporated the Exede Subscriber Privacy Policy (hereafter, "Privacy Policy"). Id. at 2; Privacy Policy [D.E. 27-1 at 5-9]. The Privacy Policy stated that ViaSat may use its customers' information, including their phone numbers, to, inter alia, market ViaSat's services to its customers and engage third parties to help ViaSat market its services; and contact customers with information, newsletters and promotional materials from ViaSat or on behalf of its partners and affiliates. See Privacy Policy [D.E. 27-1 at 7].

After Plaintiff ended his account relationship with ViaSat, he received the following text message to his personal cellular phone on February 9, 2018 (hereafter, the "Text Message"):

Exede customers: Order DIRECTV today and get DIRECTV for $ 35/mo + free $ 200 VISA gift card! 150 channels. Call to order 800-845-1010.

See Amended Complaint [D.E. 12 at 7].

Plaintiff commenced this class action against Defendants on July 12, 2018 [D.E. 1] and filed the Amended Complaint on August 15, 2018 [D.E. 12]. In the Amended Complaint, Plaintiff alleges that Accelerated obtained Plaintiff's telephone number through its contractual relationship with ViaSat and DIRECTV, and that Plaintiff received the Text Message because Accelerated was marketing to former customers of ViaSat in hopes of selling them new products offered by DIRECTV. See Amended Complaint [D.E. 12 at 7]. Plaintiff further alleges that the impersonal and generic nature of the Text Message demonstrates that Defendants used an automatic telephone dialing system ("ATDS"), to which he never consented, in violation of the TCPA. Id. at 8. He also alleges that the number used by Defendants to send the Text Message was a "long code," which is "a standard 10-digit phone number that enabled Defendants to send text messages en masse, while deceiving recipients into believing that the message was personalized and sent from a telephone number operated by an individual." Id. at 9. He claims that to send the Text Message, Defendants utilized a combination of hardware and software systems, which had the capacity to generate or store random or sequential numbers or to dial sequentially or randomly in an automated fashion without human intervention. Id. Plaintiff alleges that the Text Message caused him actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, conversion, inconvenience and disruption to his daily life. Id.

On August 29, 2018, ViaSat filed the instant Motion to Compel Arbitration, arguing that the Arbitration Provision is binding and enforceable against Plaintiff; that Plaintiff's claim falls within the scope of the Agreement and the Arbitration Provision; and that the claims must be arbitrated and the instant case be dismissed or, in the alternative, stayed pending the conclusion of the arbitration proceedings [D.E. 15]. On September 26, 2018, Plaintiff filed his Response in Opposition to the Motion to Compel Arbitration (hereafter, "Arbitration Response") arguing that his claims are outside the scope of the Arbitration Provision [D.E. 25]. ViaSat filed its Reply in Further Support of its Motion to Compel Arbitration (hereafter, "Arbitration Reply") on October 3, 2018 [D.E. 27].

On September 21, 2018, DIRECTV filed the instant Motion to Dismiss, arguing that Plaintiff failed to sufficiently allege that Accelerated used an ATDS to send the Text Message [D.E. 20]. Alternatively, in its Motion to Dismiss, DIRECTV argues that the case should be stayed pending completion of the Federal Communications Commission's ("FCC") rulemaking process on the issue of what constitutes an ATDS. Id. at 14-19. On October 5, 2018, Plaintiff filed his Response in Opposition to DIRECTV's Motion to Dismiss (hereafter, "Dismissal Response") arguing that his pleading sufficiently states a TCPA claim and that an indefinite stay is not warranted [D.E. 28]. On October 12, 2018, DIRECTV filed its Reply in Support of its Motion to Dismiss (hereafter, "Dismissal Reply") [D.E. 32]. On December 11, 2018, Plaintiff filed a Notice of Supplemental Authority in further support of the Arbitration Response and the Dismissal Response [D.E. 41].

MOTION TO COMPEL ARBITRATION

Applicable Law

"The validity of an arbitration agreement is generally governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the "FAA"), which was enacted in 1925 to reverse the longstanding judicial hostility toward arbitration." Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-27, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ; Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir. 2002) ). "The FAA embodies a liberal federal policy favoring arbitration agreements." Id. (citations omitted). Pursuant to the FAA, a written arbitration provision in a "contract evidencing a transaction involving commerce" 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.

To determine whether parties should be compelled to arbitrate a dispute, courts consider: (1) whether an enforceable written...