United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO REMAND; GRANTING MOTION TO
COMPEL ARBITRATION RE: DKT. NOS. 19, 20
J. DAVILA UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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
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.
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.
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
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. ¶
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.
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