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Bindman v. MH Sub I, LLC

United States District Court, N.D. California

December 17, 2019

BORIS BINDMAN, Plaintiff,
v.
MH SUB I, LLC, et al., Defendants.

          ORDER DENYING MOTION TO COMPEL ARBITRATION AND STAY ACTION RE: DKT. NO. 29

          SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE

         Before the Court is a motion by defendant MH Sub I, LLC d/b/a Internet Brands (“Martindale”) to compel arbitration. Dkt. No. 29 (“Motion”). Pursuant to Civil Local Rule 7-1(b), the Court finds the matter appropriate for resolution without oral argument and VACATES the December 20, 2019 hearing. Having considered the papers and for good cause shown, defendant's motion is DENIED. Additionally, plaintiff's objections to evidence are OVERRULED. Dkt. No. 34 at 31[1] (“Opp'n”).

         BACKGROUND

         This lawsuit arises from Mr. Bindman's purchase and use of Martindale's online lead generation services for attorneys. Motion at 11; see also Dkt. No. 1 ¶ 26 (“Complaint”). Martindale owns legal websites available to consumers. Dkt. No. 29-1 ¶ 2 (“Stack Decl.”). Consumers visit Martindale's websites and can request to speak to an attorney. Complaint ¶ 21. Consumers seeking representation complete and submit a form identifying their legal issue and provide their contact information. Id. Martindale then connects attorneys with potential clients, called “leads.” Stack Decl. ¶ 2. When Martindale identifies a lead, it sends an attorney customer an email with the lead's name, contract information, and legal issue. Id. Attorney customers receive leads either on an individual ("pay-per-lead") basis or a flat rate. Complaint ¶ 22.

         Plaintiff Mr. Bindman, an attorney, signed up for lead services on a "pay-per-lead" basis. Complaint ¶ 26. Plaintiff alleges that soon after submitting an initial deposit and agreeing to an auto-renewal amount, he received unsatisfactory leads. Id. at ¶¶ 26-27'. If leads fall within certain criteria (e.g. incorrect contact information, lead is not within the attorney customer's subscribed legal or geographical practice area, etc.), the lead maybe deemed deficient. Id. at¶ 23. The attorney customer can dispute leads and, if deemed deficient, the attorney will receive a credit from Martindale for the deficient lead. Id. Plaintiff alleges he received deficient leads, timely disputed them, and requested credit, but Martindale systematically rejected his credit requests. Complaint ¶27.

         Prior to signing up for its lead generation services, Martindale asserts plaintiff completed a "Contact Us" form on one of its websites. Motion at 11-12; Stack Decl. ¶ 7; Dkt. No. 29-1 at 27 (Ex. C - Entry #15361 Quick Contact Form). The "Contact Us" Form states that "[b]y clicking the' Submit' button, you agree to the Terms of Use." Dkt. No. 29-1 at 14 (Ex. A - "Contact Us" Form):

         (Image Omitted)

         The words “Terms of Use” hyperlink to a document titled “Terms of Use.” Id. at 16 (Ex. B - Terms of Use). The Terms of Use state:

These terms, including any schedules and supplemental terms (collectively, these “Terms of Use” or this “TOU”) applies to our sites and services on which we display or post a direct link to this TOU. If there is any conflict between this TOU any supplemental terms to a site or service, the supplemental terms will control. This TOU does not apply to those sites and services that do not display or link to this TOU, or that have their own terms of use.

Id. The Terms of Use also contain a section titled “Dispute Resolution; Arbitration” that outlines a 30-day information resolution process followed by arbitration. Id. at 23. It states:

If we are unable to mutually agree upon a resolution after the 30-day period, you agree that any claim you may have against us regarding these Terms of Use or our sites and services will be resolved through binding arbitration administered by JAMS and governed by the then current JAMS Streamlined Arbitration Rules and Procedures. . . . We prefer to resolve our issues with you directly and, accordingly, you agree to arbitrate with us only in your individual capacity, not as a representative or member of a class.

Dkt. No. 29-1 at 23 (Ex. B - Terms of Use). The Terms of Use designate Los Angeles County, California as a forum for any arbitration and that “any claims, causes of action or disputes not subject to Section 16 [sic] (Dispute Resolution; Arbitration) will be brought exclusively in courts located within the county of Los Angeles, California.” Id. at 24.

         Soon after Mr. Bindman contacted Martindale via the “Contact Us” Form, Martindale sent him an advertising proposal with the number of leads per month, the geographical and practice area parameters for leads, and the price per lead (“Advertising Proposal”). Motion at 15; Dkt. No. 29-1 at 29 (Ex. D - Advertising Proposal). The Advertising Proposal, shown below, includes language, under the ...


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