Zacher v. Comcast Cable Commc’ns, No. 17-cv-7256 (N.D. Ill. June 20, 2018) [click for opinion]
Plaintiff brought a putative class action alleging that Comcast violated the Telephone Consumer Privacy Act when it called his cellular telephone “looking for the account holder for a specific address.” Comcast moved to compel arbitration on the basis that Zacher previously agreed to arbitrate all such disputes through his customer agreements with Comcast.
In support of its motion, Comcast submitted evidence showing that, at the time Zacher subscribed to Comcast, it maintained a Comcast Customer Privacy Notice and a Comcast Agreement for Residential Services (“Subscriber Agreement”), and the Subscriber Agreement contained a binding arbitration provision. Although the Subscriber Agreement permits Comcast customers to opt out of arbitration within 30 days of receiving the agreement, Comcast had no evidence that Zacher opted out of arbitration.
In response to Comcast’s evidence, Zacher submitted a declaration in which he testified that he did not receive the Subscriber Agreement, and never agreed to be bound by it, because a Comcast technician did not set up his service at his home; rather, he used a Comcast “self-install” kit. Comcast countered, though, that its “routine practice” at that time was to include a “welcome kit” in its self-install kit, which contained the relevant Subscriber Agreement.
The court held that Comcast’s evidence of routine practice created a “presumption” that delivery occurred in this instance, and Zacher’s use of Comcast’s services constituted “acceptance” of the Subscriber Agreement’s terms under the Subscriber Agreement. Accordingly, the court granted Comcast’s motion to compel arbitration.
A version of this post originally appeared in the September 2018 edition of Baker McKenzie’s International Litigation & Arbitration Newsletter, which is edited by David Zaslowsky.
