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In Hearn v. Comcast Cable Communications, LLC, the Eleventh Circuit Court of Appeals held that a FCRA claim arising nearly a year after the termination of a subscriber agreement was subject to the arbitration provision included in the terminated subscriber agreement. 2021 WL 1246263 (11th Cir. 2021). Hearn was a Comcast subscriber, subject to a subscriber agreement (the “2016 Subscriber Agreement”) from December 2016 until August 2017, when he terminated the Comcast services. In March 2019, Hearn contacted Comcast again about pricing for services at the same Service Address. In connection with his request, Hearn alleged that Comcast initiated a credit inquiry without his permission or knowledge. Hearn filed a putative class action in the Northern District of Georgia alleging violations of the Fair Credit Reporting Act.
Comcast moved to compel arbitration under the 2016 Subscriber Agreement. Hearn opposed the motion arguing that the 2016 Subscriber Agreement no longer controlled and therefore, the arbitration provision was not valid. He also argued that the FRCA claim was unrelated to the 2016 Subscriber Agreement and that the arbitration provision itself was overly broad. Specifically, Hearn contended that he was not seeking to reconnect or reinstate services but rather open a new account. Comcast argued that Hearn was seeking reinstatement or reconnection services as defined in the Reconnection Provision of the 2016 Subscriber Agreement. The District Court denied the motion to compel arbitration finding that the 2016 Subscriber Agreement did not apply as Hearn attempted to open a new account. The District Court also held that the scope of the arbitration provision, which included “any claim or controversy related to Comcast, including but not limited to any and all ... claims that arose before this or any prior Agreement, ... claims that arise after the expiration or termination of this Agreement”, was too broad. Id. at *1-2. Comcast appealed.
The Eleventh Circuit reversed the District Court’s ruling. In framing its opinion, the Eleventh Circuit placed a significant emphasis on the Federal Arbitration Act which favors the enforcement of arbitration agreements. Id. at *3. The Eleventh Circuit has held that there is “nothing unusual about an arbitration clause ... that requires arbitration of all disputes between the parties to the agreement,” when the agreement “evidenced a clear intent to cover more than just those matters set forth in the contract.” Bd. of Trs. of Delray Beach Police & Firefighters Ret. Sys. v. Citigroup Glob. Mkts. Inc., 622 F.3d 1335, 1343 (11th Cir. 2010).
Here, however, the Eleventh Circuit declined to reach the issue as to whether the “full scope of the Arbitration Provision is enforceable” even if the dispute arose after termination of the subscriber agreement. Instead, the Eleventh Circuit found that the FCRA claim related to the 2016 Subscriber Agreement and thus was arbitrable. In rejecting Hearn’s characterization of the transaction as seeking to open a new account rather than reconnecting services, the Eleventh Circuit held that the 2016 Subscriber Agreement contemplated the reconnection of services after termination at the same address and under that contractual provision “Comcast was able to conduct a credit check only because of its previous relationship with Hearn.” Hearn, 2021 WL 1246263 at *4. The Eleventh Circuit reasoned that regardless of how service is terminated, under the 2016 Subscriber Agreement’s Reconnection Provision, Comcast is able to use the credit inquiries provision of the 2016 Subscriber Agreement. Therefore; Comcast “conduct[ing] a credit check after Hearn called to inquire about reinstating the company’s services,” is a situation contemplated by the 2016 Subscriber Agreement. For these reasons, the court found it “foreseeable that Comcast would use Hearn’s information that it already had on file to reinstate services” and as such, Hearn’s FCRA claim is directly related to the 2016 Subscriber Agreement. Id. at *5. Given the narrow scope of the holding, the Eleventh Circuit remanded the case to the District Court so it could determine “the merits of the parties’ remaining arguments related to Comcast’s motion to compel arbitration.” Id.
