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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14455
________________________
D.C. Docket No. 1:19-cv-01198-TWT
MICHAEL HEARN,
individually and on behalf of all other
similarly situated consumers,
Plaintiff - Appellee,
versus
COMCAST CABLE COMMUNICATIONS, LLC,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 5, 2021)
Before WILSON, GRANT, and TJOFLAT, Circuit Judges.
WILSON, Circuit Judge:
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On March 19, 2019, plaintiff-appellee Michael Hearn filed a putative class
action against Comcast Cable Communications LLC (Comcast), alleging that it
had violated the Fair Credit Reporting Act (FCRA). Hearn claimed that when he
called Comcast to inquire about pricing and services, a Comcast representative
conducted a credit check and pulled his credit information without his permission.
After Hearn brought this suit, Comcast moved to compel arbitration, citing the
Federal Arbitration Act (FAA) and a prior Subscriber Agreement between Hearn
and Comcast. The Subscriber Agreement contained an Arbitration Provision that
broadly applied to “any claim or controversy related to Comcast” and specified
that it survived the termination of the Agreement. The district court denied
Comcast’s motion to compel arbitration. Because we find that Hearn’s FCRA
claim relates to the Subscriber Agreement, we reverse the district court and remand
for further proceedings.
I.
In December 2016, Hearn obtained services from Comcast for his residence
in Mableton, Georgia (the Mableton address). While securing these services,
Hearn signed a work order acknowledging that he received a “Comcast Welcome
Kit” that contained a Subscriber Agreement. This Subscriber Agreement included
an Arbitration Provision that stated: “Any dispute involving [the customer] and
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Comcast shall be resolved through individual arbitration.” The Agreement defined
dispute as:
[A]ny claim or controversy related to Comcast, including
but not limited to any and all: (1) claims for relief and
theories of liability, whether based in contract, tort, fraud,
negligence, statute, regulation, ordinance, or otherwise;
(2) claims that arose before this or any prior Agreement;
(3) claims that arise after the expiration or termination of
this Agreement; and (4) claims that are currently the
subject of purported class action litigation in which you
are not a member of a certified class.
The provision is a default part of the contract. Although customers can
affirmatively opt out, it is undisputed that Hearn did not do so. Hearn later
terminated Comcast’s services in August of 2017.
In March 2019, Hearn called Comcast to inquire about pricing and obtaining
services at the Mableton address again. While it is undisputed that Hearn called
about obtaining services again, the parties characterize this conversation slightly
differently. Comcast claims that Hearn called and inquired about pricing for
reconnecting services. Hearn says he called to open a new account and not to
reconnect services, as he had already terminated services under the Subscriber
Agreement. Hearn claims that a Comcast representative pulled his credit
information during the call without his knowledge or permission. This credit
check lowered Hearn’s credit score.
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Hearn then brought a putative class action in the Northern District of
Georgia alleging that Comcast violated the FCRA when it pulled his credit
information without his permission. 15 U.S.C. § 1681 et seq. Comcast moved to
compel arbitration. Hearn opposed this motion, claiming that (1) there was no
valid arbitration agreement between the parties, (2) his FCRA claim does not relate
to the Subscriber Agreement and therefore is not arbitrable, and (3) the Arbitration
Provision is overly broad and unconscionable.
The district court denied Comcast’s motion. It acknowledged that the
parties intended for the Arbitration Provision to survive termination of the
Subscriber Agreement but still found that Hearn’s claim fell outside the scope of
the Agreement. Relying primarily on Georgia contract law and out-of-circuit
decisions, the district court concluded that no reasonable person would believe that
the Arbitration Provision was so all-encompassing as to apply to all claims
regardless of when they occurred or whether they related to the agreement.1
1
The district court also relied on Cordoba v. DIRECTV, LLC, 347 F. Supp. 3d 1311 (N.D. Ga.
2018), in holding that the Arbitration Provision is too broad and therefore unenforceable as
written. In Cordoba a plaintiff alleged that DIRECTV disclosed her personal information in
violation of a federal statute. Id. at 1314. The district court denied DIRECTV’s motion to
compel arbitration despite the fact that the relevant arbitration clause purportedly applied broadly
to “all disputes and claims between” the parties. Id. at 1320. The district court held that the
plaintiff’s claim was not subject to arbitration because the underlying claim did not “have some
relationship to the contract containing the arbitration provision.” Id. at 1321. While Hearn’s
case was pending on appeal, however, we reversed the district court’s decision in Cordoba. See
Cordoba v. DIRECTV, LLC, 801 F. App’x 723 (11th Cir. 2020) (per curiam). On appeal, we did
not “address[] the more general question of whether the relevant arbitration provision [was]
enforceable as to ‘all claims and disputes’” but instead found the plaintiff’s claim was arbitrable
because it related to the underlying agreement. Id. at 725–26.
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Next, the district court found that the FAA could only compel Hearn to
arbitrate his FCRA claim if it “arose out of” or “relate[d] to” the earlier Subscriber
Agreement. Ultimately, it held that Hearn’s claim did not arise out of the
Agreement. It recognized that there was a dispute of fact whether Hearn called
Comcast to reconnect services or enter into a new agreement. Comcast claimed
that Hearn called to reconnect services, and because the Subscriber Agreement
contained a provision that addressed reconnecting a customer’s services, Hearn’s
underlying claim related to the Agreement. Hearn argued that he did not call to
reconnect services. The district court asserted that it had to resolve this factual
dispute in favor of Hearn. It then found that the underlying FCRA claim did not
relate to the Agreement, and Comcast could not compel arbitration.2 This appeal
followed.
On appeal, Comcast raises two arguments. First, Eleventh Circuit precedent
demonstrates that the FAA requires courts to enforce valid arbitration agreements,
including agreements as broad as the one at issue here. Second, even under the
district court’s limited construction of the FAA, this case must be arbitrated
because Hearn’s claim relates to the Subscriber Agreement.
II.
2
Because the district court found that Hearn’s claim did not relate to the Subscriber Agreement,
it did not address whether enforcement of the arbitration provision would be unconscionable.
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We review de novo a denial of a motion to compel arbitration as well as a
district court’s interpretation of an arbitration agreement. Jones v. Waffle House,
Inc., 866 F.3d 1257, 1263 (11th Cir. 2017).
III.
“The FAA [] places arbitration agreements on an equal footing with other
contracts and requires courts to enforce them according to their terms.” Rent-A-
Center, W., Inc. v. Jackson, 561 U.S. 63, 67 (2010) (internal citation omitted).
Section 2 of the FAA states:
A written provision in any . . . contract evidencing a
transaction . . . to settle by arbitration a controversy
thereafter arising out of such contract . . . shall be 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.
“This provision establishes a liberal federal policy favoring arbitration
agreements.” CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012) (internal
quotation mark omitted). Courts should construe “any doubts concerning the
scope of arbitrable issues . . . in favor of arbitration.” Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).
We have stated:
There [] is nothing unusual about an arbitration clause . . .
that requires arbitration of all disputes between the parties
to the agreement. [And] [w]e have enforced such a clause
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before because it 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) (alteration adopted and
internal quotation marks omitted). We have reiterated this position—that an
arbitration agreement can reach beyond the matters addressed in the underlying
contract—in other cases. Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222
(11th Cir. 2000) (finding that an arbitration provision that required the parties to
arbitrate any and all claims was not overly broad or vague); cf. Doe v. Princess
Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011) (“If the [defendant] had
wanted a broader arbitration provision, it should have left the scope of it at ‘any
and all disputes, claims, or controversies whatsoever’ instead of including [a]
limitation that narrowed the scope [of the clause] . . . .”).
A “standard arbitration clause,” however, generally includes language that
limits the scope of the arbitrable issues to “any controversy or claim arising out of,
or relating to [the] agreement, or the breach thereof.” Telecom Italia, SpA v.
Wholesale Telecom Corp., 248 F.3d 1109, 1114 (11th Cir. 2001). When
determining if a dispute “arises out of” or “relate[s] to” an underlying contract, we
generally consider whether the dispute in question “was an immediate, foreseeable
result of the performance of contractual duties.” Id. at 1116; see also Hemispherx
Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1366–67 (11th Cir.
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2008) (recognizing that the Eleventh Circuit has employed “various verbal
formulae to describe the relationship between disputes and arbitration clauses,” but
ultimately focusing on foreseeability). In other words, there must be “some direct
relationship between the dispute and the performance of duties specified by the
contract” in order to find that the dispute arises out of, relates to, or is connected to
the underlying agreement. See Doe, 657 F.3d at 1218–19.
IV.
While we have previously enforced arbitration provisions that “evidenced a
clear intent to cover more than just those matters set forth in the contract,”
Citigroup, 622 F.3d at 1343 (alteration adopted), we have not enforced a provision
exactly like the one in this case. Here, the Arbitration Provision is different in that
it applies broadly to all disputes between the parties and applies even if the dispute
arises after the Subscriber Agreement is terminated. While the language in some
of our previous decisions may indicate that the full scope of the Arbitration
Provision is enforceable, this is a close question that we leave for another day. We
need not address that question because we find that Hearn’s FCRA claim relates to
the Subscriber Agreement.
Hearn’s FCRA claim relates to the Subscriber Agreement and therefore falls
within the Arbitration Provision. To start, Comcast was able to conduct a credit
check only because of its previous relationship with Hearn. It used Hearn’s
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personal information, including his social security number, that it had on file from
the Subscriber Agreement to conduct the credit check. Cf. Doe, 657 F.3d at 1219
(focusing on the fact that the defendant could have “engaged in [the alleged]
tortious conduct even in the absence of any contractual . . . relationship with [the
plaintiff]” as important in finding a claim did not arise out of or relate to the
plaintiff’s employment contract).
Also, more importantly, the Subscriber Agreement contains provisions that
specify duties relating to Comcast’s alleged unlawful credit inquiry. See id. at
1218–19 (explaining that there must be “some direct relationship between the
dispute and the performance of duties specified by the contract” to find a claim
arose out of an underlying agreement). In relevant part, it includes provisions
entitled “Reconnection Fees and Related Charges” (the Reconnection Provision),
“Our Right to Make Credit Inquiries” (the Credit Inquiries Provision), and
“Termination of this Agreement” (the Termination Provision).
Hearn claims he was not calling to reconnect services, and in turn tries to
dispute the relevance of the Reconnection Provision. The Reconnection Provision
states:
If you resume Service(s) after any suspension, we may
require you to pay a reconnection fee. If you reinstate any
or all Service(s) after disconnection, we may require you
to pay an installation fee and/or service activation fee . . . .
Reconnection of the Service(s) is subject to our credit
policies, this Agreement and applicable law.
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Hearn claims that the Reconnection Provision applies only if Comcast’s services
were suspended or disconnected. And, according to Hearn, services are suspended
or disconnected only when the customer fails to pay or pays late. He cites to a
provision of the Agreement entitled “Suspension/Disconnect” to support this
argument. In relevant part, that provision states: “If you fail to pay the full amount
due for any or all of the Service(s) then Comcast . . . may suspend or disconnect
any or all the Service(s) you receive.” So, Hearn says that because he terminated
services, rather than having them suspended or disconnected, he could not have
been attempting to reconnect services, and therefore the Reconnection Provision
does not relate to his claim.
Reading the Subscriber Agreement as a whole, Hearn’s position regarding
the Reconnection Provision is incorrect. The Agreement uses the terms “suspend”
or “disconnect” to refer broadly to discontinuing services—not only to situations
where a customer has failed to pay or paid late. For instance, under the
Termination Provision, Comcast “reserve[d] the right” to “terminate or suspend”
services in other circumstances, like if there were public health or safety concerns.
And the Termination Provision also repeatedly states that Comcast will disconnect
its services upon termination, regardless of who terminates. Thus, contrary to
Hearn’s position, the Reconnection Provision does not only apply when a customer
did not pay or paid late. Also, the terms terminate, suspend, and disconnect are not
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necessarily mutually exclusive. In fact, under the Agreement, Comcast’s services
are always disconnected after termination.
The district court also misinterpreted the Subscriber Agreement. It accepted
Hearn’s position that he was calling Comcast to create a new account, not to
reconnect his old account and subsequently stated that the claim therefore did not
relate to the Agreement.3 In doing so, the district court did not consider the
Reconnection Provision as a whole.
A comprehensive reading of the Reconnection Provision demonstrates that
even if we accept Hearn’s statement that he was not calling to reconnect services,
Hearn’s claim still relates to the agreement.4 It is undisputed that Hearn was
calling to inquire about obtaining Comcast’s services at the Mableton address
again. Because he previously used Comcast services, Comcast would be
“reinstating” services that were previously disconnected. Thus, Hearn’s claim
3
We treat motions to compel arbitration similarly to motions for summary judgment. See
Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1333 (11th Cir. 2016) (“We agree with
our sister circuits that a summary judgment-like standard is appropriate and hold 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, at this stage, the district court had to view the facts in the
light most favorable to Hearn, the nonmovant. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646
(11th Cir. 1997).
4
Also, the debate over the meaning of the term “reconnect” is seemingly semantic. The
Subscriber Agreement does not clearly define “reconnection” or the other related terms used in
the Reconnection Provision.
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relates to the Reconnection Provision: that Provision explicitly addresses situations
where customers seek to resume and reinstate Comcast services.
Moreover, it is foreseeable that Comcast would use Hearn’s information that
it already had on file to reinstate services. See Doe, 657 F.3d at 1219–20 (looking
to an underlying employment agreement to discern if a claim is related). This
situation is anticipated by the Agreement. Therefore, even resolving this potential
factual dispute in Hearn’s favor, the Reconnection Provision relates to the
underlying claim.
Similarly, the Credit Inquiries Provision directly relates to Hearn’s FCRA
claim. The Credit Inquiries Provision authorizes Comcast “to make inquiries and
to receive information about [the customer’s] credit experience.” And, relatedly,
the Reconnection Provision explicitly sets out that it is subject to the Credit
Inquiries Provision. The Credit Inquiries Provision thus directly relates to Hearn’s
claim—Comcast used the private information from Hearn’s file to conduct a credit
check after Hearn called to inquire about reinstating the company’s services. And,
just like with the Reconnection Provision, the Agreement contemplates this type of
situation.
Our holding is narrow—we do not answer if the broad scope of the
Arbitration Provision is enforceable under the FAA. We simply find that Hearn’s
FCRA claim relates to the Subscriber Agreement because of: the FAA’s liberal
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federal policy favoring arbitration agreements, the relevant provisions in the
Subscriber Agreement applicable to Hearn, and the fact that Comcast would not
have access to Hearn’s personal information—and therefore could not have
engaged in the allegedly tortious conduct—but for the pre-existing Agreement.
Because Hearn’s claim relates to the Subscriber Agreement, we reverse the district
court and remand so it can determine the merits of the parties’ remaining
arguments related to Comcast’s motion to compel arbitration.
REVERSED AND REMANDED.
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