Coleman v. Alaska USA Federal Credit Union

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         Motion to Compel Arbitration

         Defendant moves to compel plaintiff to arbitrate her individual claims.^[1] This motion is opposed.^[2] Oral argument was requested but is not deemed necessary.

         Background

         Plaintiff is Christine Coleman. Defendant is Alaska USA Federal Credit Union. Plaintiff alleges that she “is an Alaska USA customer. . . .”^[3]

         Plaintiff alleges that “[o]n November 15, 2018, [she] attempted a small payment to Safeway in the amount of $61.57.”^[4] Plaintiff alleges that “Alaska USA rejected payment of that item due to insufficient funds in [p]laintiff's account and charged her a $25 NSF Fee for doing so.”^[5] “Plaintiff does not dispute this initial fee, as it is allowed by Alaska USA's Account Documents.”^[6] Plaintiff alleges however that without her knowledge and not at her request, “eleven days later, on November 26, 2018, Alaska USA processed the same item yet again, and again rejected the transaction due to insufficient funds and charged [her] another $25 NSF Fee.”^[7] Plaintiff alleges that she was thus “charged . . . $50 in NSF Fees [in an] attempt to process a single payment.”^[8] Plaintiff alleges that this breached her agreement with defendant because “Alaska USA's Account Documents state that it will charge $25 per item that is returned due to insufficient funds.”^[9]

         On August 21, 2019, plaintiff commenced this action on behalf of herself and others similarly situated. Plaintiff asserts breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and Unfair Trade Practices Act claims on behalf of herself and others similarly situated.

         Defendant now moves to compel plaintiff to arbitrate her individual claims.

         Discussion

         The Federal Arbitration Act (“FAA”) “directs courts to treat arbitration agreements as ‘valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.'” Blair v. Rent-A-Center, Inc., 928 F.3d 819, 825 (9th Cir. 2019) (quoting 9 U.S.C. § 2)). The FAA “reflect[s] both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract[.]” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citations omitted).

         The Account Agreement for individual accounts, such as plaintiff's, provides that

[c]hanges to the terms and conditions of accounts may occur from time to time and do not require member approval. However, members will be notified of any change, amendment, or modification that would adversely affect them at least thirty (30) days in advance of such change.^[10]

         In February 2019, defendant changed the Account Agreement by adding an arbitration provision. The arbitration provision states, in relevant part, that

[t]o the extent allowed by law, all claims or controversies arising between you and the Credit Union shall be subject to arbitration. ARBITRATION IS FINAL AND BINDING ON THE PARTIES AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. IN ARBITRATION THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN COURT, INCLUDING THEIR RIGHT TO A JURY TRIAL. IF YOU HAVE ANY QUESTIONS ABOUT ARBITRATION, CONSULT AN ATTORNEY OR THE AMERICAN ARBITRATION ASSOCIATION. YOU AGREE AND UNDERSTAND (I) THAT YOU AND WE ARE BOTH GIVING UP THE RIGHT TO TRIAL BY JURY AND (II) THAT YOU AND WE ARE PRECLUDED FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION OR JOINING OR CONSOLIDATING THE CLAIMS OF OTHER PERSONS (THE “CLASS ACTION WAIVER”).

ARBITRATION PROVISIONS:

a. Binding Arbitration: At the request of either you or the Credit Union, binding arbitration under the Federal Arbitration Act will be used to resolve any claim or controversy (“Dispute”) between or among us and our assigns arising out of or relating in any way to this agreement, this arbitration agreement (“arbitration clause”), or any related agreements or instruments which cover any of your loans, products or services you have or have had in the past with the Credit Union (“Related Documents”). This also includes a Dispute based on or arising from an alleged tort or any alleged statutory or regulatory violation.^[11]

         “On May 6, 2019, Alaska USA added a ‘pop up' notice to the log-in page of the Alaska USA online banking system, which is called UltraBranch.”^[12]

The pop up stated: “The Share Account Disclosure Statements have been updated. Please click the applicable link below to review the current terms and conditions.” Below that text, the pop up included hyperlinks to the amended Account Agreement. Members were required to close the pop up notification by clicking the ...