Arbitration – Clickwrap agreement

Where a defendant has moved to compel arbitration, that motion should be allowed because the plaintiff had proper notice of, and assented to, the defendant’s terms of use.

“Plaintiff Zhengkai Pan (‘Pan’) has filed this lawsuit against Defendants Experian Information Solutions, Inc. (‘Experian’); Equifax Information Services, LLC; Trans Union LLC; Goldman Sachs Bank USA and Bank of America, N.A. (collectively, ‘Defendants’) alleging that Defendants violated the Fair Credit Reporting Act (the ‘FCRA’) by reporting inaccurate credit information. …

“On April 2, 2024, Pan enrolled in CreditWorks, a credit monitoring service provided by Experian’s affiliate, ConsumerInfo.com, Inc. …

“To support its motion to compel arbitration, Experian submitted the declaration of ConsumerInfo.com, Inc.’s Director of Product Operations, Dan Smith (‘Smith’). … Pan disputes the admissibility of Smith’s declaration. … Smith’s declaration is admissible in full. The persuasive authority on this exact issue has rejected similar admissibility challenges and upheld the admissibility of Smith’s declaration to support a motion to compel arbitration. …

“Experian asserts that (1) a valid arbitration agreement exists and (2) Experian is entitled to invoke the arbitration clause either directly or as a third-party beneficiary, and (3) to the extent there is any dispute over the arbitrability of Pan’s claims, that issue has been delegated to the arbitrator. … Pan contests the validity of the agreement, arguing that the ‘clickwrap agreement’ described in Smith’s declaration does not establish mutual assent because it fails to give Pan notice that he was agreeing to the Arbitration Agreement. …

“Pan had proper notice of the Terms of Use. In Toth [v. Everly Well, Inc., 118 F.4th 403 (1st Cir. 2024)], the First Circuit affirmed the validity of an arbitration agreement included in a clickwrap agreement. Toth, 118 F.4th at 411. … As explained above, Pan does not dispute that he created his CreditWorks account, requiring him to affirm that he read and accepted the Terms of Use. … Thus, Pan had proper notice of the agreement.

“Experian also secured meaningful assent. …

“… The parties do not dispute that Pan’s FCRA claim falls within the scope of the Arbitration Agreement. … Thus, Experian has established the necessary elements to compel arbitration. …

“Accordingly, Experian’s motion to compel arbitration is allowed.”

Pan v. Experian Information Solutions, Inc., et al. (Lawyers Weekly No. 02-489-25) (13 pages) (Casper, C.J.) (Docket No. 24-cv-12963-DJC) (Sept. 9, 2025).

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