A credit score company has removed to federal court and then sought to dismiss a class action alleging it unwittingly signed up consumers for a membership program.
The defendants filed a notice of removal on July 15 through attorney Troy A. Bozarth of HeplerBroom in Edwardsville, removing the case to the U.S. District Court for the Southern District of Illinois.
They argue that diversity of citizenship and the amount in controversy make removal proper.
Vickie Forby filed the complaint on behalf of the class on April 24 against One Technologies LP, One Technologies Management LLC and One Technologies Capital LLP.
According to the complaint, the plaintiffs claim the defendants performed “deceptive, unfair and misleading marketing and advertising” strategies when it allegedly offered free credit reports to get new customers to enroll in its credit monitoring program, which the plaintiffs alleged they did not want, consent to and agree to pay for. Then the defendants allegedly made it “next to impossible to cancel” program membership.
The plaintiffs accuse the defendants of an alleged ruse that’s lasted from at least 2008 until December 2014.
The Federal Trade Commission and Attorneys General offices in Ohio and Illinois also filed a lawsuit in California in late 2014, after which the defendants agreed to correct their ways and pay $22 million in compensation.
On Dec. 15, 2014, the plaintiff’s credit card was charged for the program without authorization, in violation of the court order, the suit states.
The plaintiffs claim the defendants violated the Illinois Consumer Fraud Act and allege unjust enrichment. They seek unspecified damages, plus costs.
After the case was removed, the defendants filed a motion to dismiss or transfer the case to the Northern District of Texas on July 21, arguing that Forby’s agreement with the defendants selects arbitration in Dallas as the “sole method of dispute resolution, and thus requires dismissal under the doctrine of forum non conveniens.”
Further, the defendant argues that its website “clearly and conspicuously discloses the essential terms of Forby’s purchase, such that her complaint fails to state a cognizable claim and should be dismissed with prejudice…”
Forby filed a response in opposition to the motion on Sept. 18 through attorney David C. Nelson of Nelson and Nelson in Belleville. She argues that the arbitration clause should not be enforced because the “terms and conditions” of the agreement were “cleverly hidden from Plaintiff when she visited Defendants’ website but, now, are being used to foreclose her from seeking relief.”
“When corporate defendants seek to enforce terms of a contract of adhesion, courts must do so only when those terms were disclosed in a manner that makes enforcement reasonable. Here, no such condition exist. Defendants either carefully or carelessly avoided making these material terms reasonably apparent to Plaintiff and the Class and, accordingly, the Court should decline to enforce them,” the opposition states.
St. Clair County Circuit Court case number 15-L-246