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Azeveda v. Comcast Cable Communications LLC

United States District Court, N.D. California, San Jose Division

October 11, 2019

MARIO AZEVEDA, Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS LLC, et al., Defendants.

          AMENDED ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO COMPEL ARBITRATION RE: DKT. NOS. 19, 20

          EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE.

         Plaintiff moves for this case to be remanded claiming this Court lacks subject-matter jurisdiction. Defendants separately move to compel arbitration and dismiss the putative class action because Plaintiff agreed to arbitrate employment-related disputes with Defendants individually. The Court finds this motion suitable for consideration without oral argument. See N.D. Cal. Civ. L.R. 7-1(b). Having considered the Parties' papers, the Court DENIES the motion to remand and GRANTS the motion to compel arbitration.

         I. BACKGROUND

         A. Factual Background

         On January 30, 2019, Mario Azeveda (“Plaintiff”) filed this putative class action in the Santa Clara County Superior Court of the State of California asserting that Comcast Cable Communications, LLC and Comcast Cable Communications Management, LLC (“Defendants”) violated federal and state laws. Notice of Removal to Federal Court, Ex. 1 (“Compl.”), Dkt. 1. Plaintiff worked for Defendants, in California, from February 2005 through May 2016. Id. ¶¶ 8, 23; Declaration of Lynn Collins (“Collins Decl.”) ¶ 5, Dkt. 19.

         1. Claims

         Plaintiff alleges violations of the Fair Credit Reporting Act (“FCRA”), which occurred when Defendants obtained background checks for Plaintiff's employment. He asserts analogous California state law claims under Investigative Consumer Reporting Agencies Act (“ICRAA”), Consumer Credit Reporting Agencies Act (“CCRAA”), and unfair competition law (“UCL”). Plaintiff also included claims that Defendants failed to provide meal periods, rest periods, pay hourly and overtime wages, accurate written wage statements, and timely pay all final wages.

         Plaintiff claims that Defendants routinely acquired consumer, investigative, and credit reports (i.e., credit and background reports) to conduct background checks on Plaintiff and other prospective, current, and former employees. Compl. ¶ 2. Defendants then used information from the reports in their hiring process without providing or obtaining proper disclosures/authorizations in compliance with federal and state law. Id.

         Plaintiff alleges two FCRA claims. First, that Defendants disclosures did not meet the “clear and conspicuous” and “stand alone” writing requirement. Id. ¶¶ 48-63. Second, that Defendants failed to give proper “summary of rights” as required by 15 U.S.C. § 1681d(a)(1) and 15 U.S.C. § 1681g(c). Id. ¶¶ 66-76. These violations caused Plaintiff to have his “privacy and statutory rights invaded in violation of the FCRA.” Id. ¶¶ 62, 65. He seeks “all available remedies” including “statutory damages and/or actual damages.” Id. ¶¶ 63, 65. Plaintiff then alleges analogous violations of California privacy law and other labor laws, and contends he lost “money or property” as a result of Defendants' misconduct. Id. ¶ 181.

         2. Arbitration Program

         In September 2013, Defendants “rolled out” an alternative dispute resolution program called “Comcast Solutions” to California region employees, including Plaintiff. Collins Decl. ¶ 3. Comcast Solutions is designed to make it easier for employees to resolve legal claims. It specifies a three-step procedure for resolving disputes between Comcast and its employees. Id., Ex. 1 at 2; Ex. 2 at 4; Ex. 10 at 5. First, an internal “Comcast Solutions Lead” reviews the claim to determine if it is a covered legal claim. Id., Ex. 2 at 4. Covered legal claims include “[m]ost claims that assert a violation of law relating to [] employment.” Id., Ex. 3 at 3; see also Id. (listing a non-exhaustive list of covered claims). Claims, however, pertaining to the unauthorized use or disclosure of confidential, trade secret or private information under statutory or common law are not covered claims (under this 2013 agreement). Id. at 4. Comcast Solutions covers claims brought against both Defendants. Id., Ex. 2 at 1. If it is a covered claim, the Comcast Solutions lead will work with the employee and Comcast Cable representatives to develop a satisfactory solution. Id., Ex. 2 at 4-5.

         Second, if an employee is unsatisfied with the proposed solution, they may seek non-binding mediation through an outside, professional dispute resolution organization, such as the Judicial Arbitration and Mediation Services organization (“JAMS”) or the American Arbitration Association (“AAA”). Id., Ex. 2 at 5. The employee does not have to pay any fees in connection with mediation and both sides have input into selecting the mediator. Id., Ex. 3 at 3.

         Finally, if the employee is still not satisfied, they may request a binding, two-day arbitration hearing through JAMS or the AAA before a mutually selected arbitrator. Id., Ex. 2 at 6. The employee is required to pay (at most) a $150 arbitration initiation fee, which is refunded if they prevail on any portion of their claim. Id., Ex. 2 at 7.

         Comcast provided employees information about this program in both hard-copy and electronic form and reminded employees about the opt-out deadline (see infra). Id., Ex. 5-8. Plaintiff received these materials. See id., Ex. 6 (mailing form sent to Plaintiff by first-class mail); Id., Ex. 7 (email sent to Plaintiff regarding program); Ex. 8 (electronic “read-receipt” indicating receipt of program materials). Plaintiff did not opt out of the program; thus, he agreed to participate in it. Id. ¶ 13; see also Supplemental Declaration of Lynn Collins (“Supp. Decl.”) ¶ 2, Dkt. 29-1 (detailing the number of people that have opted out).

         In late 2015, Comcast revised certain aspects of the program. Id., Ex. 11. These changes were published on the internal employee website, which all employees can access. Among other things, the change allowed employees more flexibility as it let them skip the first two steps before pursuing arbitration. Id. It also removed the exception about excluding claims “for breach of data privacy.” Id., Ex. 10 at 3. Employees were advised that if they wished to remain under the 2013 Program Terms, they should contact Comcast Solutions by phone or email. Id., Ex. 11 (“If you need additional time to review the enclosed documentation and make your decision, no problem! Just contact the Comcast Solutions Team . . . .”). Plaintiff did neither. Id. ¶ 16.

         In January 2016, Comcast issued a revised Employee Handbook. Id. ¶ 17. Employees were required to review the Handbook and related content concerning the 2015 Program changes. Id. Employees were required to electronically acknowledge that they had read and understood the changes. Id.; see also id., Ex. 12 at 2. Plaintiff acknowledged reading and understanding the 2016 Employee Handbook and 2015 Program changes. Id. ¶ 17.

         The relevant terms of the agreement are as follows:

1. Class Action Waiver. The Comcast Solutions Program includes a class action waiver, which, in the 2013 agreement, is set apart from the other text and bolded. It states
If you agree to participate in the program, both you and the company waive the right to bring a civil action or have a jury trial for any covered legal claims. You also waive the right to bring or participate in a class action or collective or representative action on covered legal claims. All covered claims will be handled through the three-step Comcast Solutions process; both you and the company will be bound by the final decision of the arbitrator.

Id., Ex. 1 at 8; see also id., Ex. 2 at 7 (“As part of this Program . . . [you] waive the right to . . . file, bring, or maintain any Claims covered by the Program on a class action basis, collective action basis, or ...


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