PHILADELPHIA – A federal judge has rebuffed an attempt by the MyLife.com website to dismiss litigation from a Bucks County man and fencing instruction facility, finding that limited discovery should be conducted on the issue of whether or not the case will head to arbitration.
Mark Holbrow of New Hope first filed suit in the Bucks County Court of Common Pleas on Feb. 3 versus MyLife.com, Inc., of Los Angeles, Calif.
Holbrow is the owner and operator of the Bucks County Academy of Fencing, an athletic facility which has provided lessons and competitive training in the sport of fencing to all ages, particularly children. It was said the plaintiff substantially relies on his reputation for personal and business development.
The defendant sells consumer background reports through their website, www.mylife.com. The website allows users to run free background searches for an individual’s name, and then displaying search results that imply, often falsely, according to the plaintiff, that the subject of a search may have records of criminal or sexual offenses – records the plaintiffs said which “can conveniently be viewed only by purchasing a MyLife subscription.”
“On Jan. 22, 2021, plaintiff ‘Googled himself’ and discovered his name listed at www.mylife.com. He followed up by clicking on the publicly available link and discovered to his horror that the website unequivocally states the following concerning him, which is false: ‘Criminal or civil court records found on Mark’s background report,” the suit stated.
“Detailed information beyond this label could only be obtained by purchasing a subscription. The subscription page invites the viewer to ‘Get instant information on Mark now!’ and states further that there are one or more ‘Incarceration and Public Records.”
The suit added that once a person subscribes to the website, the news is revealed as follows: “Good news! After scanning the web and government sources, we did not find any negative information about Mark Holbrow. The background report you pulled has no derogatory entries. Specifically, concerning ‘Criminal and Court Records’, the website stated that no arrest or criminal records were found.”
“The detailed report further provides plaintiff’s home address, his age, his home telephone number, his race, his registered political affiliation and his religious affiliation, the last two of which are incorrect. It also includes his associates, his reported annual income and his net worth. The report further confirms that the defendant’s ‘reputation profile’ indicates ‘no criminal or civil court records, lawsuits, liens or negative reviews’, contrary to what it stated in its publicly available teaser,” per the suit.
“Defendant therefore knew or should have known based on its own information that its public statement, ‘Criminal or civil court records found on Mark’s background report’ was false.”
Counsel for MyLife.com filed to remove the case to the U.S. District Court for the Eastern District of Pennsylvania on Feb. 23, citing complete diversity of jurisdiction and an indication that the amount in controversy exceeds the federal court threshold of $75,000.
MyLife.com’s attorneys responded with a motion to dismiss the case on May 3, citing an alleged failure on the part of the plaintiff to state a claim and mandating that the case must head to arbitration, under the Federal Arbitration Act.
When Holbrow registered to use the MyLife.com website, defense counsel said that he consented to terms of agreement which included the following stipulation:
“These terms require that disputes between MyLife and you be resolved by binding arbitration rather than by jury trials or class actions. MyLife.com and you...agree to arbitrate all disputes and claims arising out of or relating to this agreement between MyLife.com and you.”
“Holbrow agreed to arbitrate his claims by choosing to click ‘continue’ and to proceed with knowledge that doing so constituted agreement to MyLife’s terms and conditions,” the motion stated.
“Those terms are embodied in a user agreement accessible via blue, bolded hyperlink right below the ‘continue’ button with a warning that clicking the button constitutes agreement to the terms. The user agreement contains a clear and conspicuous mandatory arbitration provision. Accordingly, Holbrow agreed to arbitrate this dispute, and the complaint should be dismissed.”
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Mitchell S. Goldberg denied the defense’s motion to dismiss and/or arbitrate in a memorandum opinion on Nov. 10, citing U.S. Court of Appeals for the Third Circuit precedent as to lack of clarity and arbitrability.
“The complaint makes no mention of the User Agreement or the purported arbitration provision therein. Rather, defendant introduced the arbitration clause and user agreement in its present motion and accompanying exhibits. Because the current dispute centers on the existence and enforceability of an arbitration agreement, neither of which were mentioned in the complaint, resolution of the present motion necessitates review of evidence outside of the pleadings. Accordingly, applying the Rule 12(b)(6) standard of review in deciding the instant motion is inappropriate,” Goldberg said.
“Accordingly, because the complaint is devoid of any reference to the user agreement or arbitration clause, I am unable to review the merits of defendant’s motion. I will afford the parties some time to conduct limited discovery on the narrow issue of whether an agreement to arbitrate the present dispute exists. Following discovery, defendant may refile its Motion pursuant to Rule 56.”
For counts of defamation, defamation per se and invasion of privacy, the plaintiff is seeking compensatory and punitive damages in excess of $50,000.
The plaintiff is represented by Andrew D. Cotlar of the Law Office of Steven A. Cotlar, in Doylestown.
The defendant is represented by Jordan M. Rand of Klehr Harrison Harvey Branzburg, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00819
Bucks County Court of Common Pleas case 2021-00634
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com