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Harbers v. Eddie Bauer, LLC

United States District Court, W.D. Washington, Seattle

November 19, 2019

EDDIE BAUER, LLC, et al., Defendants.


          JAMES L. ROBART United States District Judge


         This matter comes before the court on Defendant Eddie Bauer, LLC's (“Eddie Bauer”) motion to compel arbitration, or in the alternative, dismiss Plaintiff Jennifer Harbers' complaint under Federal Rule of Civil Procedure 12(b)(6). (Mot. (Dkt. # 13).) Ms. Harbers filed a response. (Resp. (Dkt. # 19).) Eddie Bauer filed a reply. (Reply (Dkt. # 25).[1]) For the reasons set forth below, the court GRANTS Eddie Bauer's motion to compel arbitration and DECLINES to rule on Eddie Bauer's motion to dismiss.


         This putative class action revolves around Ms. Harbers' allegations that Eddie Bauer engaged in “false discount advertising” by advertising “perpetual or near perpetual discounts” but “rarely if ever offer[ing] its products at the advertised list prices.” (Compl. (Dkt. # 1-2) ¶¶ 4-5.) Ms. Harbers filed her complaint in King County Superior Court on May 28, 2019, on behalf of herself and the putative class. (See Id. at 25.) Eddie Bauer removed this case to federal court on June 28, 2019. (Not. of Removal (Dkt. # 1).) Ms. Harbers alleges violations of the Washington Consumer Protection Act (“CPA”) and seeks both money damages and injunctive relief. (See Compl. ¶¶ 75-95.)

         Ms. Harbers alleges that she made “numerous purchases from Eddie Bauer over the years, primarily through the Eddie Bauer website (” (Id. ¶ 16.) Her complaint provides one example: a pair of “Women's Myriad Crop Pants” that she purchased through “on or about June 20, 2016.” (See Id. ¶ 17-18.) Ms. Harbers does not specify the dates of other purchases or allege they took place during the putative class period. (See generally id.) Eddie Bauer's records show that Ms. Harbers made two online purchases during the class period: the pair of crop pants discussed // above on June 19, 2016, and a second purchase on September 12, 2017. (See Mot. at 10 (citing McMurdo Decl. (Dkt. # 14) ¶ 4).)

         Eddie Bauer contends that “[i]t would have been impossible for [Ms. Harbers] to make either of her two online purchases without proceeding” through a “Begin Secure Checkout” page (“Checkout Page”) that states: “By ordering you agree to's Privacy Policy and Terms of Use.” (See Id. at 10-11.) Eddie Bauer provides an image of that page, as well as an image of an additional “Review” page (“Review Page”) that Eddie Bauer began using in 2017, which states “By ordering you agree to's Privacy Policy and Terms of Use.” (See id.) The Review Page makes the foregoing statement twice-once on the top left of the page, and again just above the “Submit Order” button at the bottom of the page. (See id.)

         Eddie Bauer asks the court to take judicial notice of an archived copy of the Terms of Use as they existed on as of May 12, 2016, procured through the Internet Archive. (See RJN (Dkt. # 15) at 1-2; id., Ex. A (“Terms of Use”).) According to James McMurdo, Senior Developer for Eddie Bauer, “[t]his page accurately reflects how the Terms of Use on appeared at the time of Plaintiff's June 12, 2016, and September 12, 2017, purchases.” (McMurdo Decl. ¶ 12.)

         The Terms of Use include in relevant part the following arbitration agreement:

Our first objective is to satisfy our customers, and so we hope to never have a dispute with you. But if we can't avoid a dispute, you and we agree to try for 60 days to resolve it by agreement. You and we further agree that if we can't resolve our dispute by agreement within 60 days, we will submit adjudication of our dispute to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”). You and we agree that a neutral arbitrator will adjudicate our dispute and the arbitrator's decision will be final except for a limited right of appeal under the FAA.
You and we agree to give up our rights to sue in court and have our dispute decided by a judge or jury.
However, we agree that if your claim is small enough that the law allows you to file it in a small claims court, you may do so instead of submitting to binding arbitration. We will submit to binding arbitration in any event.
You also agree to waive-that is, to give up-your right to claim through a class action lawsuit, class-wide arbitration, private attorney-general action, or any other proceeding where someone acts in a representative capacity or individual claims are combined.
You accept this Binding Arbitration Agreement and Class Action Waiver by your purchase or use of the produces, or services that we sell you (including by becoming an Eddie Bauer Friends member). You agree to abide by these terms without modification. We reserve the right to change terms from time to time.

(Terms of Use at 4.) The Terms of Use do not expressly delegate to an arbitrator the determinations of whether an arbitration agreement exists or whether it covers a particular dispute. (See id.)

         Ms. Harbers contends that she made no agreement to arbitrate with Eddie Bauer. (See Resp. at 18.) She opposes Eddie Bauer's request for judicial notice of the Terms of Use on the grounds that the Internet Archive is not a source whose reliability cannot reasonably be questioned, and because the Terms of Use image is not authenticated by a person with knowledge who works for the Internet Archive. (See Id. at 14-19.) Ms. Harbers further contends that a customer can bypass the Checkout Page if “(1) the customer is using PayPal; (2) the customer is paying using Visa Checkout; or (3) the customer or the computer is already logged in as an Eddie Bauer registered user.” (See Resp. at 19 (citing Corrington Decl. (Dkt. # 21) ¶ 9-12; Bannister Decl. (Dkt. # 20) ¶¶ 23-28).[2])

         Ms. Harbers asserts that she “definitely used PayPal to pay for her Eddie Bauer purchase of 2017” and provides a screenshot of what she claims is her PayPal receipt for that purchase. (Resp. at 19 (citing Harbers Decl. (Dkt. # 19) ¶ 6, Ex. B.) Ms. Harbers does not dispute that she would have had to move through the Review Page and click “Submit Order” to make her 2017 purchase. (See generally id.)

         III. ANALYSIS

         A. ...

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