No ‘Valid’ Arbitration Pact Exists, Says Opposition to Redbox Motion to Compel

Redbox’s Oct. 31 motion to compel plaintiff Ruby Gamez’s Florida Telephone Solicitation Act claims to arbitration (see 2311020049) “is due to be denied in its entirety” because no agreement to arbitrate exists and Redbox has waived its right to compel arbitration, said her response Thursday (docket 8:23-cv-01497)) in U.S. District Court for Middle Florida in Tampa in opposition to the motion to compel. Gamez’s claims also aren’t subject to arbitration because “they fall outside the scope of the arbitration clause,” it said. Gamez alleges Redbox phoned her and countless other Florida consumers to promote its goods and services without their prior express written consent, as the FTSA requires. But Redbox contends that Gamez “expressly agreed,” at least three times before receiving an allegedly unlawful call from Redbox, to arbitrate all disputes with the company. It’s “well settled” that the court, not the arbitrator, “must decide whether an enforceable agreement to arbitrate exists,” said Gamez’s opposition. Gamez contends that no “valid written agreement to arbitrate exists,” despite Redbox’s assertions she agreed to arbitration terms when she visited Redbox kiosks three times between November 2019 and June 2020, said her opposition. The “miniscule text allegedly informing kiosk users of the existence” of Redbox’s arbitration provisions “is printed in considerably smaller font that the surrounding elements” and isn’t distinguished “by underlining, capitalization, or by the use of a different font color,” it said. The text that advises users of the existence of the arbitration provision also isn’t hyperlinked to lead to that provision, it said. A user would need “to click on the smaller button at the very bottom of the checkout screen” to view the provision, it said. None of Gamez’s three kiosk visits provided Gamez “with the required inquiry notice of the arbitration clause,” it said.