United States District Court, D. Alaska
CHRISTINE COLEMAN, on behalf of herself and all others similarly situated, Plaintiff,
v.
ALASKA USA FEDERAL CREDIT UNION, Defendant.
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 ...