United States District Court, D. New Hampshire
Benjamin J. Wyatt, Esq., Michael Varraso, Esq., Abigail S.
Romero, Esq., Joseph W. Ozmer, II, Esq., Michael D. Kabat,
Esq., Michele E. Kenney, Esq., Eric Bosset, Esq., Geoffrey J.
Vitt, Esq., Neil K. Roman, Esq.
J. McAuliffe, United States District Judge
Ryan 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 Thomson Reuters
Corporation, asserting that it is a “consumer reporting
agency” and that it, too, violated various provisions
of the FCRA.
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.
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.”).
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).
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
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).
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”).
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