Briana Glasel, individually and on behalf of all others similarly situated v. Office Depot, LLC

Summary

A Chief United States Magistrate Judge recommends denying Office Depot, LLC’s motion to compel arbitration and stay proceedings in a putative Telephone Consumer Protection Act class action. The recommendation concludes that Office Depot waived its arbitration right by substantially participating in litigation before moving to compel arbitration, despite asserting a generic arbitration-related affirmative defense. In the alternative, the recommendation finds that Plaintiff assented to authenticated Terms of Use containing an arbitration provision and class action waiver, which would support compelling individual arbitration if the district judge disagrees on waiver.

Holdings

1. Under the totality of the circumstances, Office Depot waived its right to arbitrate by actively litigating the case on the merits, participating in discovery, mediation, scheduling, and related proceedings, and waiting more than a year after asserting a generic arbitration affirmative defense to file its motion to compel.
2. Office Depot met its burden to establish, for purposes of the alternative analysis, that Glasel assented to the Terms of Use containing an arbitration provision and class-action waiver through the authenticated November 20, 2023 text-message exchange.

Questions Presented

1. Whether Office Depot waived its contractual right to compel arbitration by substantially participating in the litigation and delaying its motion to compel.
2. Whether Office Depot established the existence of an enforceable arbitration agreement through the text-message exchange and authenticated business records.
3. If waiver did not apply, whether the court should compel individual arbitration, enforce the class-action waiver, and stay the action under the Federal Arbitration Act.

Disposition

other