The United States Court of Appeals for the Fourth Circuit has held that a “clickwrap” agreement, wherein a customer clicks on an acknowledgement agreeing to a website’s terms and conditions, with Experian Information Solutions Inc. provided suitable notice to a consumer enrolling in Experian’s CreditWorks service that any disputes with Experian would be resolved through binding arbitration. Austin v. Experian Information Solutions Inc.
Following a bankruptcy and the denial of a credit application, Austin enrolled in CreditWorks, a free online credit-monitoring service offered by ConsumerInfo.com, an Experian affiliate. He also reviewed his credit reports, and determined that his Experian credit report included inaccurate reporting of certain discharged debts as delinquent and errors with regards to certain of his non-discharged debts. After sending dispute letters to Experian, which eventually resulted in the correction of information on his credit report, Austin filed suit in the United States Court for the Eastern District of Virginia against Experian, alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (the “FCRA”).
In response to Austin’s suit, Experian moved to compel arbitration, arguing that the terms and conditions of Austin’s enrollment in CreditWorks included an agreement to binding arbitration of any dispute with ConsumerInfo.com or its affiliates, including Experian. The District Court excluded an affidavit from a corporate officer stating that Austin had enrolled in and accepted the terms of use, including the arbitration clause, reasoning that the declarant lacked personal knowledge to testify. Following an appeal, the Fourth Circuit disagreed, finding that the declaration rested on personal knowledge of a corporate officer regarding corporate records and the enrollment process.
With the declaration admitted, a panel of the Appeals Court found a valid and binding arbitration agreement. The CreditWorks enrollment page provided Austin with notice that he was agreeing to the company’s terms of use, and was not deceptive. Accordingly, the clickwrap agreement provided reasonable notice of the arbitration provision, Austin was bound by that agreement, and Experian’s motion to compel arbitration was granted.
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FCRA, Arbitration, Clickwrap, Notice