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Smith v. Verizon Wireless (Vaw) LLC

United States District Court, D. Oregon

May 3, 2018

JEFF SMITH, Plaintiff,
v.
VERIZON WIRELESS (VAW) LLC, Defendant.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Jeff Smith (“Plaintiff”) filed a complaint against Verizon Wireless (VAW) LLC (“Verizon Wireless”), alleging unlawful trade practices and negligent data breach, in violation of Oregon law. See Or. Rev. St. § 646.605(4). (ECF No. 1.) Verizon Wireless filed an unopposed motion to compel arbitration and stay the federal court proceedings. (ECF No. 10.) For the reasons that follow, the Court recommends that the district judge grant Verizon Wireless' motion and dismiss this case.

         BACKGROUND

         In September 2016, Plaintiff bought and activated a cellular service plan from Verizon Wireless for a wireless telephone number with an Oregon area code. (Friedman Decl., Ex. A.) Plaintiff signed a Customer Agreement. (Id.) Immediately above Plaintiff's signature, the agreement states in bold, capitalized print:

I AGREE TO THE CURRENT VERIZON WIRELESS CUSTOMER AGREEMENT . . ., ALL OF WHICH I HAVE HAD THE OPPORTUNITY TO REVIEW. I UNDERSTAND THAT I AM AGREEING TO . . ., SETTLEMENT OF DISPUTES BY ARBITRATION INSTEAD OF JURY TRIALS, AND OTHER IMPORTANT TERMS IN THE CUSTOMER AGREEMENT. I AM AWARE THAT I CAN VIEW THE CUSTOMER AGREEMENT ANYTIME AT VERIZONWIRELESS.COM OR IN MY VERIZON ACCOUNT.

         The referenced agreement contains a dispute resolution provision, in all capital letters and set off from the surrounding text in a box:

How do I resolve disputes with Verizon Wireless?
. . .
YOU AND VERIZON WIRELESS BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT. YOU UNDERSTAND THAT BY THIS AGREEMENT YOU ARE GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY. WHILE THE PROCEDURES MAY BE DIFFERENT, AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEY'S FEES, AN ARBITRATOR CAN AWARD THEM TOO. WE ALSO BOTH AGREE THAT:
(1) THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT. EXCEPT FOR SMALL CLAIMS COURT CASES THAT QUALIFY, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM U.S. . . ., WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS . . . .

(Friedman Decl., Ex. B at 6.)

         Plaintiff alleges that Verizon Wireless exposed the personal photos stored on Plaintiff's phone to at least one other customer without Plaintiff's permission. (Compl. ¶ 6.) The recipient identified and contacted Plaintiff, informing Plaintiff of the data breach. (Compl. ¶ 7.) Plaintiff filed suit against Verizon Wireless, alleging violations of Oregon law. (Compl. ¶¶ 9-11.)

         ANALYSIS

         I. ...


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