District of New Jersey Finds Arbitration Provision Ambiguous as to Claims Under TCPA

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Contractual provisions requiring consumers to bring claims in arbitration must be carefully worded to ensure they encompass all claims, including those asserted under the Telephone Consumer Protection Act. A recent decision by the United States District Court for the District of New Jersey, Abedi v. New Age Med. Clinic PA, No. 18-14680-KM-SCM, 2019 U.S. Dist. LEXIS 67903 (D.N.J. Apr. 18, 2019), provides a cautionary tale.

Plaintiff Deeba Abedi contends that, after visiting the offices of New Age Medical Clinic, she received numerous promotional text messages from the clinic. She alleges she did not consent to receiving these bc data china solicitations and asserts a class action claim under the TCPA. New Age moved to compel arbitration under a “Physician-Patient Arbitration Agreement.”

New Age argued the parties had agreed to arbitrate all claims between them, regardless of the type of claim or how it arose. In contrast, Abedi asserted that the Arbitration Agreement is of limited scope and only applies to claims for medical malpractice.
Krakauer brought a TCPA class action against Dish Network in 2014, alleging that he received telemarketing calls asking him to buy services from Dish Network. The calls were not from Dish Network directly, but from Dish Network’s vendor, Satellite Systems Network (“SSN”). Krakauer, who had submitted his phone number to the national Do-Not-Call registry in 2003, called Dish Network to complain and was placed on the company’s individual Do-Not-Call list.

Krakauer’s lawsuit alleged that the calls violated the TCPA and that Dish Network was liable as SSN’s principal. Judge Catherine C. Eagles of the Middle District of North Carolina granted Krakauer’s motion for class certification and subsequently modified the class definition throughout the litigation. By the time of trial in 2017, the class included: “[a]ll persons throughout the United States whose telephone numbers were listed on the federal Do Not Call registry for at least 30 days, but who received telemarketing calls from SSN to promote the sale of Dish satellite television subscriptions from May 1, 2010 to August 1, 2011.” Id. at 14.