United States District Court, D. Massachusetts
ELLEN MARIE CHRISTENSEN, individually and on behalf of others similarly situated, Plaintiff,
BARCLAYS BANK DELAWARE and STILLMAN LAW OFFICE, LLC, Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO
COMPEL ARBITRATION AND STAY OR DISMISS THIS ACTION
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Marie Christensen (“Plaintiff”) filed this action
against Barclays Bank Delaware (“Barclays”) and
Stillman Law Office, LLC (“Stillman”), asserting
individual and putative class claims under Massachusetts
General Laws Chapter 93A for alleged violations of the Fair
Debt Collection Practices Act, 15 U.S.C. §§ 1692
et. seq. (“FDCPA”) and Massachusetts
Debt Collection Practices Act (“MDCPA”). [ECF No.
1-1 (“Complaint” or “Compl.”)].
Currently before the Court are Barclays' and
Stillman's motions to compel arbitration of
Plaintiff's individual claims, to dismiss Plaintiff's
putative class claims, and to dismiss or stay this action.
[ECF Nos. 5, 11]. For the reasons set forth below, the
motions are GRANTED, the class allegation claims are
stricken, and the Court dismisses the Complaint without
prejudice in favor of arbitration.
Court draws the following facts from the Complaint and from
the affidavits and documents submitted in support of the
motions to compel arbitration. See Cullinane v. Uber
Techs., Inc., 893 F.3d 53, 55 (1st Cir. 2018).
Ellen Marie Christensen is an individual who resides in
Lawrence, Massachusetts. Compl. ¶ 1.
Defendant Barclays is a financial institution organized under
the laws of Delaware with a principal place of business in
Wilmington, Delaware. Id. ¶ 2;
[ECF No. 6 at 4; ECF No. 6-1 (“Hensey Decl.”)].
As part of its business, Barclays offers, issues, and
services consumer credit card accounts. Compl.
¶ 5; [ECF No. 6 at 4]. Defendant
Stillman is a law firm with a principal place of business in
Woburn, Massachusetts. Compl. ¶ 3.
year thousands of Massachusetts residents open new consumer
credit card accounts with Barclays. Id.
¶ 7. Substantially all of Barclays'
consumer credit card accounts opened by Massachusetts
residents are governed by cardholder agreements, which
provide that the accounts are governed by Delaware law, and,
where applicable, federal law. Id.
¶ 8. After originating consumer credit
card accounts, Barclays services the accounts by, inter
alia, sending monthly statements to cardholders and
collecting payments. Id. ¶ 9.
When a cardholder defaults on an account, Barclays attempts
to collect past-due amounts and may request the assistance of
a law firm, such as Stillman, to help collect the debt.
Id. ¶ 10.
December 5, 2010, Plaintiff applied for Barclays'
BJ's Visa Platinum credit card. Hensey Decl. ¶ 5.
Plaintiff's application was accepted, and, on December 9,
2010, Barclays mailed the credit card, Cardmember Agreement
(the “Cardmember Agreement”), Privacy Statement,
Rewards Program Terms and Conditions, and card activation
instructions to Plaintiff. Id. ¶¶ 6, 8;
Hensey Decl. Ex. 2. On December 13, 2010, Plaintiff activated
the credit card and opened her credit card account (the
“Account”) by calling Barclays. Hensey Decl.
¶ 8. The Cardmember Agreement provides that “[b]y
signing, keeping, using or otherwise accepting your Card or
Account, you agree to the terms and conditions of this
Agreement.” Id. ¶ 9. Additionally, the
back of the card states that use of the card is subject to
the Cardmember Agreement. Id. ¶ 11.
Cardmember Agreement includes an arbitration provision for
resolving claims, disputes, or controversies between
Plaintiff and Barclays, including its employees, parents,
subsidiaries, affiliates, beneficiaries, agents, and assigns,
that relate to the Cardmember Agreement or Account. Hensey
Decl. Ex. 2 at 2. In relevant part, the arbitration clause
At the election of either you or us, any claim, dispute or
controversy (“Claim”) by either you or us against
the other, or against the employees, agents or assigns of the
other, arising from or relating in any way to this Agreement
or your Account, or any transaction on your Account including
(without limitation) Claims based on contract, tort
(including intentional torts), fraud, agency, negligence,
statutory or regulatory provisions or any other source of law
and (except as specifically provided in this Agreement)
Claims regarding the applicability of this arbitration clause
or the validity of the entire Agreement, shall be resolved
exclusively and finally by binding arbitration under the
rules and procedures of the arbitration Administrator
selected at the time the Claim is filed. The Administrator
selection process is set forth below. For purposes of this
provision, “you” includes any authorized user on
the Account, and any of your agents, beneficiaries or
assigns; and “we” or “us” includes
our employees, parents, subsidiaries, affiliates,
beneficiaries, agents and assigns, and to the extent included
in a proceeding in which Barclays is a party, its service
providers and marketing partners.
Id. The Cardmember Agreement also includes a
provision concerning class action and class arbitration
claims that provides, in part:
Claims made and remedies sought as part of a class action,
private attorney general or other representative action
(hereinafter all included in the term “class
action”) are subject to arbitration on an individual
basis, not on a class or representative
basis. . . . .
No class actions joinder or consolidation of any
Claim with a Claim of any other person or entity shall be
allowable in arbitration, without the written consent of both
you and us
. . . . .
. . . ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND
NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM
THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE
RIGHTS THAT ARE PROVIDED IN COURT INCLUDING . . . THE RIGHT
TO PARTICIPATE OR BE REPRESENTED IN ...