Mortensen, et al. v. Bresnan Communications, LLC, No. 11-35823 (9th Cir. 2013)
Annotate this CasePlaintiffs brought a putative class action against Bresnan alleging violations of the Electronic Communications Privacy Act, 18 U.S.C. 2520-21, the Computer Fraud and Abuse Act, 18 U.S.C. 1030, and Montana state law for invasion of privacy and trespass to chattels in connection with targeted advertising they received while using Bresnan's Internet service. The district court declined to enforce a choice-of-law clause in the service subscriber agreement, provided to all Bresnan customers, specifying that New York law should apply, and an arbitration clause. The court held that AT&T Mobility LLC v. Concepcion further limited the savings clause in the Federal Arbitration Act (FAA), 9 U.S.C. 1-2 et seq., and therefore, the court held that the FAA preempted Montana's reasonable expectations/fundamental rights rule and that the district court erred in not applying New York law because a state's preempted public policy was an impermissible basis on which to reject the parties' choice-of-law selection. Accordingly, the court vacated the district court's denial of Bresnan's motion to compel arbitration and remanded to the district court with instructions to apply New York law to the arbitration agreement.
Court Description: Arbitration. The panel vacated the district court’s order declining to enforce an arbitration clause and a choice-of-law clause in a broadband Internet service subscriber agreement, and remanded to the district court with instructions to apply New York law to the arbitration agreement. The panel held that AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), further limited the Federal Arbitration Act’s savings clause, 9 U.S.C. § 2. The panel held that the Federal Arbitration Act preempted Montana’s public policy invalidating adhesive agreements running contrary to the reasonable expectations of a party. The panel also held that the district court erred in not applying New York law because a state’s preempted public policy was an impermissible basis on which to reject the parties’ choice-of-law selection.
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