Latest Case: Stover v. Experian Holdings, Inc. (Arbitration & Mediation)

He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Stover v. Experian Holdings, Inc.

Docket: 19-55204

Opinion Date: October 21, 2020

Judge: Milan Dale Smith, Jr.

Areas of Law: Arbitration & Mediation

The Ninth Circuit affirmed the district court's order compelling arbitration in an action brought by plaintiff, seeking damages and injunctive relief under the Fair Credit Reporting Act and state law. Plaintiff's claims arose from her purchase of the Experian Credit Score subscription service in 2014. Two versions of the Experian terms of use are at issue: the version to which plaintiff expressly agreed in 2014, and the 2018 version, which exempted some types of claims from binding arbitration. The panel held that a mere website visit after the end of a business relationship is not enough to bind parties to changed terms in a contract pursuant to a change-of-terms provision in the original contract. In this case, plaintiff's claims are arbitrable under the 2014 terms of the contract to which she assented. The panel held that, in order to bind parties to new terms pursuant to a change-of-terms provision, consistent with basic principles of contract law, both parties must have notice that the terms have changed and an opportunity to review the changes. Because plaintiff has not alleged that she had such an opportunity, the panel concluded that the 2018 terms did not form a valid contract. Furthermore, the contract permits judicial resolution of claims for public injunctive relief, but plaintiff has not alleged Article III standing for such a claim. Therefore, the panel concluded that the McGill rule does not excuse plaintiff from binding arbitration of her claims against Experian.