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Landry v. Time Warner Cable, Inc.

United States District Court, D. New Hampshire

August 9, 2017

Rex Landry, Plaintiff
v.
Time Warner Cable, Inc., and Thompson Reuters Corporation, Defendants Opinion No. 2017 DNH 152

          ORDER

          Steven McAuliffe United States District Judge.

         Plaintiff, Rex Landry, filed this putative class action against his former employer, Time Warner Cable, alleging that Time Warner violated various provisions of the federal Fair Credit Reporting Act (“FCRA”), as well as New Hampshire's statutory analogue. He also claims Time Warner wrongfully terminated his employment and, in so doing, violated New Hampshire's Whistleblower Protection Act. Finally, Landry advances two claims against Thompson Reuters Corporation, asserting that it is a “consumer reporting agency” and that it, too, violated various provisions of the FCRA.

         Pending before the court is Time Warner's motion to compel arbitration and to dismiss (or stay) this action. Landry objects. For the reasons stated, Time Warner's motion is granted in part and denied in part, albeit without prejudice.

         Standard of Review

         As several district courts in this circuit - including this one - have observed, the Court of Appeals has “yet to address the proper standard of review for a motion to compel arbitration.” Pla-Fit Franchise, LLC v. Patricko, Inc., No. 13-CV-489-PB, 2014 WL 2106555, at *3 (D.N.H. May 20, 2014) (Barbadoro, J.) (citing cases). See also Ouadani v. Dynamex Operations E., LLC, No. CV 16-12036-PBS, 2017 WL 1948522, at *1 (D. Mass. May 10, 2017) (“The First Circuit has not stated what standard the movant should be held to at this stage, although some courts have applied a summary judgment standard.”).

         Here, as in Pla-Fit, supra, neither party has addressed the appropriate standard of review. And, as in Pla-Fit, both parties have relied upon documents and affidavits beyond those attached to, or referenced in, Landry's complaint. Accordingly, the court will employ the familiar summary judgment standard of review in resolving Time Warner's motion to compel arbitration. See Id. at *3. Applying that standard, the court reviews the record in the light most favorable to Landry, and draws all reasonable inferences in his favor. See Block Island Fishing, Inc. v. Rogers, 844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). Time Warner is entitled to the relief it seeks only if the record reveals “no genuine dispute as to any material fact” and judgment follows as a matter of law. See Fed.R.Civ.P. 56(a). In this context, a factual dispute “is ‘genuine' if the evidence of record permits a rational factfinder to resolve it in favor of either party, and ‘material' if its existence or nonexistence has the potential to change the outcome of the suit.” Rando v. Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).

         Background

         Landry doesn't recall many of the details related to his application and hiring by Time Warner. See Declaration of Ryan Landry (document no. 17-2). But, Time Warner has filed several documents that lay out the essential aspects of that process. Those business records reveal that on June 13, 2015, Landry submitted an online application for employment with Time Warner. In it, he provided a Yahoo email address so Time Warner could communicate with him electronically. See Online Job Application (document no. 21-2). About one month later, on July 15, 2015, Time Warner sent Landry the first of two emails, conditionally offering him a job with the company, subject to verification of his personal/employment information and conditioned upon his successful completion of what Time Warner calls its online “onboarding process.” Landry was provided with a unique user name and password to log into that system and complete the process.

         The following day, at approximately 10:56 a.m., Landry accessed the “onboarding” website and began the process of completing a W-4 form and providing personal information such as his emergency contact information and bank routing directions for his payroll check. As part of that process, Landry was also required to review (and acknowledge that he had reviewed) several documents relating to the conditions of his employment. Those documents included, for example, Time Warner's EEOC Statement, its policy on unlawful harassment, its statement that it is a drug-free workplace, the employee code of conduct, and company safety practices. Importantly, it also included a “Mutual Agreement to Arbitrate.” At approximately 12:14 p.m. on July 16, 2015, Landry acknowledged having read the terms of that arbitration agreement and he electronically accepted and “signed” the same. See Onboarding Status Details (document no. 14-5) at 3. See also Declaration of Chance Cassidy (document no. 14-2) at para. 10. Indeed, if Landry had declined to accept any of the policies or agreements set forth on the onboarding website - including the Mutual Agreement to Arbitrate - he would not have been hired by Time Warner. See Id. at paras. 13 and 16. See also “Welcome to Time Warner Cable” Email (document no. 21-3), dated July 15, 2015 (informing Landry that “All required information MUST be submitted in the Onboarding system. You are responsible for timely submission through the site of all required documents. Please be advised that all offers are subject to successful completion of the pre-employment process and background verification.”) (emphasis in original).

         The Mutual Agreement to Arbitrate provides that, by signing that document and accepting employment with Time Warner:

you and Time Warner Cable (“TWC, ” as defined below) agree that any and all claims, disputes, and/or controversies between you and TWC arising from or related to your employment with TWC shall be submitted exclusively to and determined exclusively by binding arbitration before a single Judicial Arbitration and Mediations Services, Inc. (“JAMS”) arbitrator under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”).

         Document no. 14-3 at 1 (emphasis supplied). The agreement then provides several examples of employment-related disputes that are subject to arbitration. Finally, in bold typeset, the agreement contains a broad waiver of Landry's right to bring or participate in a class action against Time Warner.

REPRESENTATIVE, COLLECTIVE, AND CLASS ACTION WAIVER:
You and TWC understand, acknowledge and agree that the terms of this Agreement include a waiver of any rights that you or TWC may have to bring or participate in an action against each other on a representative, class, or collective basis and understand and agree that the arbitrator shall not be permitted to order consolidation of claims or a representative, class, or collective, arbitration. This waiver does not take away or restrict your or TWC's right to pursue your or its own claims, but only requires that any such ...

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