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Christensen v. Barclays Bank Delaware

United States District Court, D. Massachusetts

April 30, 2019

ELLEN MARIE CHRISTENSEN, individually and on behalf of others similarly situated, Plaintiff,
v.
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

         Ellen 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.

         I. BACKGROUND

         The 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).

         Plaintiff 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.

         Each 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.

         On 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.

         The 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 provides:

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 ...

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