United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.)
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.)