In determining whether there is an arbitration agreement, “federal courts apply ordinary principles of state law that govern the conclusion of contracts.” Pokorny v. Quixtar, Inc., 601 F.3d 987, 994 (9 cir. 2010) (citation and some internal punctuations omitted). Comenity Capital argues that the court should apply Utah law to this analysis, given that credit card agreements contain legal choice provisions that require Utah law. Doc. Number 20 at 17:27-18:7. However, the court cannot “presume that the parties have made such a choice.” See Aspect Grp. v. Movietickets.com, Inc., 2006 WL 5894608, at *6 (C.D. Cal. 24, 2006) (citing restatement (Second) of Conflict of Laws § 188 (1) (1988)).
Where, as here, “the real issue. “the courts apply the local law of the state with the most significant relationship with the transaction and the parties.” Id., 2006 WL 5894608 to *6 (citation and internal quotation marks omitted). While the Tribunal is not aware of a decision made public by the Ninth Circle as to whether it is for the court or arbitrator to decide whether class actions can be arbitrated, other district courts have held that the availability of a class arbitration is an “entry-level affair” for the court to rule in the absence of a clear and unequivocal delegation to the arbitrator. See Opalinski v. Robert Half Int`l Inc., 761 F.3d 326, 331-32, 335-36 (3d Cir. 2014); Reed Elsevier, Inc. v. Crockett, 734 F.3d 594, 599 (6 cir. 2013). Furthermore, in an unpublished decision, the Ninth Circle stated that the District Court did not err in making the claimant`s class claims prior to the arbitration order, because “[i]ssues, which the parties probably expected a court to decide, are considered an initial issue of arbitration capacity for the courts and not the arbitrators, to decide. Eshagh v. Terminix Int`l Co., 588 Fed. App`x.
703, 704 (9th Cir.2014) (cited in Momot v. Mastro, 652 F.3d 982, 987 (9th Cir. 2011)). And the arbitration provisions expressly state that disputes relating to the “class action waiver” “fall within the jurisdiction of a court and not an arbitrator.” Doc. No. 20-1, Exs.B &H (section I.C.3). The Tribunal will therefore decide whether Gonzalez can arbitrate claims on a class basis, provided that the arbitration provisions apply. See Chico v.
Hilton Worldwide, Inc., 2014 WL 5088240, *11 (C.D. Cal. Oct. 7, 2014) (finding that “it is the court, not the arbitrator, that decides whether the [arbitration agreements] allow for class arbitration, as the parties have not clearly and unambiguously designated anything else”). Look at the back of the credit card or your last monthly statement to find the name of the exhibitor. The bank, retailer or other legal entity whose name appears on the front of the card may not be the actual issuer of the card. You can also check the issuer`s website. As a rule, the name of the bank is indicated below on the issuer`s homepage. The claims at issue are based exclusively on Comenity Capital`s alleged failure to comply with applicable law in dealing with Gonzalez`s allegation that it had not opened the accounts.
Gonzalez asserts that Comenity Capital failed to inform him that his identity theft must be filed in writing in a right to accounts; that Comenity Capital has not produced certain account documents; That Comenity Capital unfairly threatened to take legal action to collect debts on the accounts; and that Comenity Capital has not carefully reviewed its notification of identity theft in the accounts.. . .
