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Turner v. Pillpack, Inc.

United States District Court, W.D. Kentucky, Paducah Division

May 29, 2019

CHRISTINA TURNER, on behalf of herself, and all others similarly situated PLAINTIFF
v.
PILLPACK, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge.

         This matter comes before the Court upon two motions by Defendant, PillPack, Inc. (“PillPack”), and one motion by Plaintiff, Christina Turner (“Turner”). Turner moves the Court for leave to amend her complaint. (R. 28). PillPack moves the Court to compel arbitration and stay litigation. (R. 34). PillPack also moves the Court to strike or otherwise disregard portions of two exhibits filed by Turner. (R. 43). All three motions are fully briefed and ripe for review. For the following reasons, and being otherwise sufficiently informed, the Court finds that whether Turner assented to the alleged arbitration agreement is “in issue” and therefore the Court shall proceed to a trial to resolve the question pursuant to 9 U.S.C. § 4. See Great Earth Companies, Inc. v. Simons, 288 F.3d 878, 889 (6th Cir. 2002) (“If the validity of the agreement to arbitrate is “in issue, ” the court must proceed to a trial to resolve the question”). Because this is a threshold determination, all other litigation in this case is stayed pending the outcome of the trial. Discovery shall only be allowed on the issue of whether Turner entered into an arbitration agreement.

         BACKGROUND[1]

         Christina Turner, a resident of Paducah, Kentucky, brings this action on behalf of herself and all others similarly situated and claims that PillPack negligently and/or willfully contacted her through text messages on her cellular telephone, in violation of the Telephone Consumer Protection Act. (R. 1). PillPack is a pharmacy business with its place of business located in Manchester, New Hampshire. (R. 16). In addition to Turner and PillPack, three other entities are relevant to this matter although they are not currently parties to the litigation: Fluent, Inc., Fluent, LLC, and RewardZone USA, LLC (“RZU”). According to Daniel Barsky, General Counsel of Fluent, Inc. and its wholly owned subsidiaries,

Fluent, Inc. is a digital marketing company that owns and operates numerous consumer-facing websites (“Websites”) through its wholly owned subsidiaries, including Fluent, LLC and RewardZone USA, LLC. The Websites offer users the opportunity to, for example, earn rewards, enter sweepstakes, receive lists of jobs, and get product samples. Fluent, Inc. and its wholly owned subsidiaries operate the Wesites as one combined entity (“Fluent”).

(R. 34-3). Turner moves the Court for leave to amend her class action complaint to add Fluent, LLC to the action.

         PillPack claims that Turner has agreed to arbitrate her claims. (R. 34). More specifically, PillPack alleges that Turner registered online to participate in a rewards program operated by Fluent, Inc. through its wholly owned subsidiaries Fluent, LLC and RZU and that Turner agreed to a mandatory arbitration provision as a necessary step of the registration process. (R 34-1). PillPack argues that Turner visited a reward website, www.consumersrvyvnter.com, on June 6, 2016, where she registered for the RZU promotion. Id. at 10. As part of this registration process, PillPack alleges that Turner manifested assent to terms and conditions through a “click-wrap” agreement containing the following provision:

We (RewardZone USA, LLC) operate RewardZoneUSA.com, NationalConsumerCenter.com and other websites (Websites) where you can qualify to earn incentives - merchandise or gift cards (Incentives) - by completing certain offers (Promotions).

Id. at 12. The Terms and Conditions also allegedly included an arbitration provision, which included the following language:

         Arbitration/Dispute Resolution:

If you have a dispute concerning any aspect of these Terms & Conditions, the Website, your participation in a Promotion, or entitlement to an Incentive, you should first contact customer support on our website or by completing a customer support ticket. We will attempt to resolve the matter to your satisfaction within thirty (30) days of our receipt of a customer support ticket. We may choose to provide you with a final written settlement offer during this process. If we provide you with a final written settlement offer and you don't accept it, or we can't otherwise satisfactorily resolve your dispute or you chose to skip this step, you can submit your dispute for resolution by arbitration before the American Arbitration Association (“AAA”) in the county where you live by filing a separate Demand for Arbitration online by following the instructions at https://apps.adr.org/webfile/. You will need our mailing address to file online which is: RewardZone USA, LLC, 128 Court Street, 3rd Floor, White Plains, NY 10601; Fax: 646-607-1910.
If we have a dispute, we will submit our dispute for resolution by arbitration before the AAA in New York, NY. If either party files for arbitration, it will be conducted in accordance with the then current AAA Commercial Arbitration Rules. The arbitrator will have exclusive authority to resolve any dispute including any claim that all or any part of the Terns & Conditions, including this provision, are unenforceable.

(R. 34-3 at 3-4) (emphasis added). The alleged arbitration provision also advised that “[y]ou may opt-out of these Dispute Resolution Provisions by providing written notice of your decision within thirty (30) days of the date that you first register on our Website.” Id. PillPack argues that Turner did not elect to opt-out of the arbitration agreement at any time. (R. 34-1 at 14).

         Turner denies that she ever typed www.consumersrvycnter.com into a web browser, denies ever entering a promotion or sweepstake to win a Michael Kors bag, and affirmatively states that she has never ...


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