Hancock v. American Telephone & Telegraph, Inc. ___ F.

3d ___ (2012)

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Nature of the Case

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Facts

Ps are customers of U-verse services that include digital television, voice-over-Internet protocol, and high-speed Internet. One set of terms of service governs U-verse TV and Voice services (“TV/Voice terms”). The TV/Voice terms have a forum selection provision stating that, in the event of litigation, AT&T (D) and Ps “agree to submit to the · jurisdiction of the courts located within the county of Bexar County, Texas.” The Internet terms include an arbitration provision stating that AT & T and the customer “agree to arbitrate all disputes and claims. Ps filed their class action complaint in the Western District of Oklahoma. They asserted claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., as well as various claims under state law. D filed two motions to dismiss Ps' claims. The first motion cited the Forum Selection Clause and moved under Fed.R.Civ.P. 12(b)(3) to dismiss Ps' TV/Voice-related claims for improper venue or, alternatively, to transfer venue to the U.S. District Court for the Western District of Texas under 28 U.S.C. § 1404(a). The second motion cited the Arbitration Clause and moved to dismiss Ps' Internet-related claims and to compel arbitration. A technician gives the customer an opportunity to review the TV/Voice terms before installation. The technician then displays an acceptance form on the technician's laptop through the GCAS web application. The acceptance form has a checkbox next to “Terms of Service.” Below the checkbox, the form states in all capital letters: “Before acknowledging below, please review the appropriate documents pertaining to your new AT & T service(s). By selecting ‘I Acknowledge’ below, you are acknowledging that you have read, understand, and agree to the content of the documents checked above.” Id. at 883. The customer must click an “I Acknowledge” button below this statement to accept the TV/Voice terms. A new U-verse Internet customer is required to complete an online registration process to activate the service. During the registration process, the customer is presented with a screen that displays AT & T's Internet terms in a scrolling text box. Below the text box are three buttons labeled “Exit Registration,” “I Reject,” and “I Agree.” The customer must click the “I Agree” button to continue with the registration. “Until this process is completed, the new customer will automatically be directed to the U-verse registration page every time he or she attempts to connect to the Internet using a web browser over his or her U-verse High-Speed Internet connection.” Ps provided an affidavit from Hancock. He averred that he “did not ‘click on’ ANY acceptance of U-verse ‘Terms of Service’ when [he] bought U-verse, and the salesman never told [him] about any ‘Terms of Service.’ The district court granted Ds' motion to dismiss holding that Forum Selection Clause was mandatory and unambiguous and that the Arbitration Clause governed and was enforceable under the Federal Arbitration Act and state law. Ps appealed.