Arbitration: FCRA claim headed to arbitration

Where a website’s enrollment page would have placed a consumer on reasonable notice of an offer to enter a contract, including the arbitration provision, the district court erred when it denied the motion to compel arbitration.

Background

Darrell Austin sued Experian Information Solutions Inc., alleging violations of the Fair Credit Reporting Act, or FCRA. Experian moved to compel arbitration. It argued that Austin enrolled in CreditWorks, its online credit monitoring service operated by affiliate ConsumerInfo.com, also known as Experian Consumer Services, or ECS, in May 2020. Experian argued that by agreeing to CreditWorks’s terms of use, Austin consented to arbitrate any dispute arising from or related to his relationship with CreditWorks or its affiliates — including disputes with Experian.

Austin moved to exclude a declaration submitted by Experian, arguing the affiant (David Williams) lacked personal knowledge and relied upon hearsay documents, including the depiction of the enrollment page and the terms of use in force at the time. The district court agreed and excluded the declaration. It then denied the motion to compel arbitration, reasoning that Experian had not provided sufficient factual support for its motion, given the exclusion of the Williams declaration. However, the court also concluded, even assuming the Williams declaration was admitted and considered by the court, the motion to compel would be denied.

Williams’ declaration

This court finds that excluding the Williams declaration was an abuse of discretion.  The court held Williams, and therefore Experian, to too high a standard. The record before this court demonstrates he possessed personal knowledge of the facts his declaration put forth.

The district court concluded that documentary exhibits attached to the Williams affidavit purporting to show the terms of use and appearance of the CreditWorks enrollment page were hearsay. This was incorrect. “Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.” But the significance of those documents to this case lies solely in the fact they were made or presented on a computer screen, and “no issue is raised as to the truth of anything asserted.”

Second, this court disagrees that Williams failed to demonstrate personal knowledge. The operative finding is whether and when Austin enrolled in CreditWorks, and if so, what terms of use, if any, did he agree to. And nothing in the record before this court suggests that Wiliams, VP of Business Governance at ECS, lacked personal knowledge of whether someone signed up for a free product offered by the company, the date that they did so and the terms of use in effect at that time.

A corporate officer overseeing Business Governance — which, based upon evidence in opposition submitted by Austin includes responsibility for “risk and regulatory management” as well as those duties described by Williams himself — would presumably be competent to testify regarding the registration of a user on a particular date and the terms of use in force at the time. And against Williams’s assertions of his own personal knowledge in his sworn statement, Austin does not offer evidence that shows he lacked that knowledge or was required to possess “hyper-technical” information regarding the enrollment process.

Merits

The parties dispute whether the CreditWorks enrollment page would have placed Austin on reasonable notice of an offer to enter a contract. This court finds that “the design and content of the website would have put a reasonably prudent user on notice of the terms of” CreditWorks’s contractual offer. “Nothing about the website design or layout obscure[d] the conspicuous location of the Terms of Use hyperlink.” Indeed, Austin “did not need to ‘scroll[] down’ or ‘go exploring’ to find out there were terms of use in the first place.” The court thus concludes that Austin was on notice of the contract and its terms offered by CreditWorks, including the arbitration provision.

Austin contends that the appearance and substance of the CreditWorks enrollment page precludes any finding that he assented to CreditWorks’s terms of use, including the arbitration provisions. This court is not persuaded by Austin’s arguments. The layout of the CreditWorks enrollment page, with its conspicuous terms of use and language indicating that creating an account constituted agreement with those terms, provided Austin with notice that there was a contract on offer. And Austin, by enrolling in CreditWorks, assented to those terms of use.

Reversed and remanded.

Austin v. Experian Information Solutions Inc., Case No. 23-2301, Aug. 1, 2025. 4th Cir. (Floyd), from EDVA at Richmond (Payne). Jacob Moshe Roth for Appellant. Jessica Garland for Appellee. VLW 025-2-303. 26 pp.