ORDER GRANTING DEFENDANT'S MOTION TO COMPEL ARBITRATION; AND STAYING PROCEEDINGS Docket No. 25

EDWARD M. CHEN, District Judge.

Plaintiffs Marcus A. Roberts, Kenneth A. Chewey, Ashley M. Chewey, and James Krenn (collectively, "Plaintiffs") have filed a class action against Defendant AT&T Mobility LLC ("AT&T"), asserting statutory, tort, and warranty claims based on AT&T's "deceptive and unfair trade practice of marketing its wireless service plans as being `unlimited,' when in fact those plans are subject to a number of limiting conditions [in particular, throttling1] that either are not disclosed or inadequately disclosed to consumers." FAC ¶ 1. Currently pending before the Court is AT&T's motion to compel arbitration. AT&T's motion relies largely on the fact that the Supreme Court upheld AT&T's arbitration provision in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) (holding that arbitration agreement should be enforced under the Federal Arbitration Act ("FAA"); California's Discover Bank rule — which deemed class waivers in consumer arbitration agreements substantively unconscionable — was preempted by the FAA). In response, Plaintiffs argue that the Concepcion Court never addressed the specific issues now raised — i.e., that enforcement of the arbitration agreements would violate their rights as protected by the Petition Clause of the First Amendment.

Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS AT&T's motion to compel arbitration. The Court further stays this lawsuit pending arbitration. See 9 U.S.C. § 3.

I. DISCUSSION

The parties do not dispute that Plaintiffs entered into contracts with AT&T in order to obtain wireless service. The parties also do not dispute that each of the agreements contained an arbitration provision.

In its motion, AT&T contends that the Court should enforce the arbitration agreements and compel arbitration. In response, Plaintiffs essentially raise three arguments as to why arbitration should not be compelled: (1) because, if this Court were to compel arbitration, that would be state action that would violate their First Amendment rights — more specifically, the right to petition a court for a redress of grievances2; (2) because, even though the arbitration provision allows a claim to be brought in small claims court, that court is not an adequate forum and therefore their First Amendment rights have still been abridged; and (3) because the FAA must be construed as not applying to consumer actions in order to avoid a constitutional problem (i.e., the constitutional avoidance doctrine).

Each of the above arguments turns on the applicability of the First Amendment. But, as both parties recognize, in order for Plaintiffs to have a First Amendment claim, they must first show state action. See Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 263 (2d Cir. 2014) ("Because the United States Constitution regulates only the Government, not private parties, a litigant like Grogan who alleges that her constitutional rights have been violated must first establish that the challenged conduct constitutes state action.") (internal quotation marks omitted)); cf. Hudgens v. NLRB, 424 U.S. 507, 513 (1976) ("It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state."). Plaintiffs acknowledge that the arbitration agreements are contracts between private actors. Nevertheless, they assert, there would still be state action in the instant case upon this Court's enforcement of that private agreement.

A. Judicial Enforcement

As a starting point, the Court finds no merit to Plaintiffs' assertion that the mere fact of judicial enforcement automatically establishes state action. The Ninth Circuit rejected that position in Ohno v. Yasuma, 723 F.3d 984 (9th Cir. 2013). More specifically, in Ohno, the Ninth Circuit rejected the defendant's contention that judicial enforcement of a foreign-country money judgment against it — through application of California's Uniform Foreign Country Money Judgments Recognition Act — "constitute[d] domestic state action triggering constitutional scrutiny."3 Id. at 986. The court stated:

Id. at 994 (emphasis in original).

The Ohno court further explained:

Id. at 993 (emphasis in original and added). "[T]he source of the alleged constitutional harm is . . . Japanese tort law, created and enforced through Japanese governmental entities," and so "the claimed constitutional deprivation cannot be traced to a right, privilege, or rule of conduct imposed by a domestic governmental entity or individual." Id. at 994. The act of enforcement of the Japanese judgment by the U.S. court did not constitute state action causing a constitutional deprivation.

To the extent Plaintiffs have relied on Shelley v. Kraemer, 334 U.S. 1 (1948),4 see Mot. at 3-4, to support the position that judicial enforcement itself provides the requisite state action necessary to establish a constitutional claim, the Court is not persuaded. In Ohno, the Ninth Circuit made clear that "Shelley's attribution of state action to judicial enforcement has generally been confined to the context of discrimination claims under the Equal Protection Clause." Id. at 998.

Indeed, in discussing the reach of Shelley, the Ohno court pointed out that, "[i]n the context of First Amendment challenges to speech-restrictive provisions in private agreements or contracts, domestic judicial enforcement of terms that could not be enacted by the government has not ordinarily been considered state action." Id. (emphasis added.) In addition, and more on point to the case at bar, the Ninth Circuit stated that, "in the context of judicial confirmation of arbitral awards, . . . [courts have] held that `mere confirmation of a private arbitration award by a district court is insufficient state action to trigger the application of the Due Process Clause.'" Id. at 999. While the Ninth Circuit did state that it did "not mean to adopt or sanction any of [these] cases," id. at 999 n.17, its reference to the cases — particularly the latter group — is still telling.

Furthermore, a Ninth Circuit decision that pre-dates Ohno is in strong accord with the above cases. More specifically, in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), overruled on other grounds, EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003), the plaintiff — a broker-dealer in the securities industry — sued her employer for employment discrimination. The plaintiff had signed a securities industry form that included an arbitration provision. The form also required the plaintiff to abide by the rules of the New York Stock Exchange ("NYSE") and National Association of Securities Dealers ("NASD"), and each of these organizations had a rule that required arbitration. The plaintiff argued, nevertheless, that she could not be compelled to arbitration because "the arbitration agreement imposes an unconstitutional condition of employment," requiring her "to forfeit her Fifth Amendment right to due process, her Seventh Amendment right to a jury trial, and her right to an Article III judicial forum." Id. at 1200. According to the district court, "the essential prerequisite of state action was lacking" for the due process claim, and the Ninth Circuit agreed, stating "no state action is present in simply enforcing that agreement." Id. at 1201.

Plaintiffs have pointed to no authority holding that judicial enforcement, particularly of an arbitration award, constitutes state action.5 In fact, as the Ohno court noted, the authority is to the contrary. For example, in Davis v. Prudential Securities, Inc., 59 F.3d 1186 (11th Cir. 1995), the defendant appealed to the Eleventh Circuit after the district court confirmed the arbitration panel's award of punitive damages. The defendant argued, inter alia, that the punitive damages award violated its due process rights, more specifically, "because arbitration lacks the procedural protections and meaningful judicial review required for the imposition of punitive damages." Id. at 1190. The Eleventh Circuit rejected the argument. It noted first that "the state action element of a due process claim is absent in private arbitration cases" because private arbitration is by itself "a voluntary contractual agreement of the parties." Id. at 1191. As to the defendant's assertion that the district court's confirmation of the punitive damages award provided the requisite state action, the court disagreed. The Eleventh Circuit echoed the Ninth Circuit's analysis in Ohno that the defendant was offering a "Shelley v. Kraemer theory that a court's enforcement of a private contract constitutes state action" but "[t]he holding of Shelley . . . has not been extended beyond the context of race discrimination." Id. See also Katz v. Cellco P'ship, No. 12 CV 9193 (VB), 2013 U.S. Dist. LEXIS 176784, at *10, 17 (S.D.N.Y. Dec. 12, 2013) (in a case where plaintiff argued that "application of the FAA to his state law claims violates Article III of the Constitution — both the structural protections of our tripartite system of government (i.e., separation of powers) and his personal right to have his claims adjudicated before an independent Article III judge," agreeing with defendant that "there is insufficient state action for plaintiff to maintain an action under Article III"; stating that "the fact that Verizon sought a court order compelling arbitration does not transform enforcement of the parties' arbitration agreement into state action"), vacated in part on other grounds, No. 14-138, 2015 U.S. App. LEXIS 13055 (2d Cir. July 28, 2015); Smith v. Argenbright, Inc., No. 99 C 7368, 1999 U.S. Dist. LEXIS 19827, at *8 (N.D. Ill. Dec. 27, 1999) (stating that "[w]e do not believe that our limited power to conduct an after-the-fact review of an arbitration panel for bias constitutes the requisite governmental action to implicate Batson"); Cremin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 957 F.Supp. 1460, 1468 (N.D. Ill. 1997) (rejecting contention that defendant was "using a government official, i.e., this Court, to enforce the arbitration rules that will inevitably deprive her of due process"; "refus[ing] to hold that every time a Court enforces a private arrangement it potentially violates one party's constitutional rights"); United States v. Am. Soc'y of Composers, Authors & Publ'rs, 708 F.Supp. 95, 97 (S.D.N.Y. 1989) (stating that "[t]he mere approval by this Court of the use of arbitration did not create any state action[;] [i]ndeed, under [party's] strained interpretation . . ., all arbitrations could be subject to due process limitations through the simple act of appealing the arbitrator's decisions to the court system"). At bottom, "[government] permission of a private choice cannot support a finding of state action." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 54 (1999).

Finally, the Court takes note that, in many private contracts, there are provisions that arguably affect access to the courts or otherwise implicate significant rights, such as choice-of-venue, choice-of-law, statute-of-limitations, and limitations-on-damages provisions. Although these provisions may be subject to restrictions imposed by statutory and/or common law (e.g., the doctrine of unconscionability, violation of public policy), courts have not held that judicial enforcement of these provisions, particularly as found in contracts between private parties, raises constitutional claims. See, e.g., Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1045 (9th Cir. 2001) (holding that a six-month statute-of-limitations provision was enforceable); Severn Peanut Co. v. Indus. Fumigant Co., 807 F.3d 88, 92 (4th Cir. 2015) (rejecting assertion that consequential damages exclusion in contract was not enforceable).

B. The FAA and Its Interpretation

In their papers, Plaintiffs argued that, nevertheless, there is state action based on Congress's enactment of the FAA. See Opp'n at 4. This argument is similar to that rejected by the Ninth Circuit in Duffield. There, the plaintiff argued that "state action is present because `federal law requires all broker-dealers to register with a national securities exchange (i.e., the NYSE or NASD), and to abide by the rules of that exchange — including its mandatory arbitration rules — as a condition of their continued employment.'" Id. at 1200. The Ninth Circuit rejected the argument, stating that

Id. at 1201 (emphasis added).

The court acknowledged that, in 1993 — two years before the plaintiff's employer actually invoked the arbitration agreement — the Securities and Exchange Commission ("SEC") had "adopted a regulation that required all broker-dealers to be registered with at least one of the securities organizations of which [the plaintiff's employer] was a member — i.e., the NASD and the NYSE — before effecting any securities transaction." Id. That "current requirement that new employees register with a national securities exchange `constitutes government action of the purest sort.'" Id. Nevertheless, the Ninth Circuit was not persuaded by the plaintiff's argument that this new regulation provided the requisite state action. The court noted:

Id. at 1201 (emphasis in original and added).

The instant case is similar to Duffield in that, here, while Congress did enact the FAA, the mere enactment of the statute did not cause the deprivation of their constitutional rights. See Duffield, 144 F.3d at 1201 (noting that "[s]tate action can be present . . . only to the extent that there is `a sufficiently close nexus between the State and the challenged action'") (emphasis in original).

In any event, the Court takes note that, at the hearing, Plaintiffs conceded that they did actually not have a problem with passage of the FAA per se. Rather, Plaintiffs took the position that it was judicial interpretation of the FAA that provided the requisite state action.6 In particular, Plaintiffs argued that, if this Court were to compel arbitration, it would be interpreting the FAA as applying to consumer adhesion contracts (and not just contracts between businessmen or merchants), and this interpretation would be the source of Plaintiffs' constitutional injury. But this asserted constitutional injury is predicated on the contract being one of adhesion — i.e., where the consumer did not knowingly and/or voluntarily agree to arbitration and forfeits access to the courts. Thus, the source of the alleged constitutional deprivation when a consumer is involved is not the judicial interpretation of the FAA; rather, the source is AT&T's private conduct in purportedly forcing arbitration on an unwitting consumer. See Am. Mfrs., 526 U.S. at 50 (asking whether "the allegedly unconstitutional conduct [is] fairly attributable to the State") (emphasis omitted). As the court held in Ohno, a court giving effect to a private contract does not constitutionalize the contract. See Ohno, 723 F.3d at 993 (stating that "[t]he district court, in giving effect to the judgment issued in Japan, has not participated in the action the [defendant] claims is unconstitutional — namely, judging the truth or falsity of the [defendant's] religious teachings or imposing liability for the consequences of religious expression").

At the hearing, Plaintiffs protested that, if the Court were to compel arbitration, then it would be interpreting the FAA as heavily favoring arbitration and encouraging private parties to employ pre-dispute arbitration clauses, and this interpretation would also be the source of Plaintiffs' constitutional injury. Because this specific argument was not raised in Plaintiffs' papers, the Court could disregard it as waived.

But even if the Court were to consider the merits, Plaintiffs would fare no better. Plaintiffs' argument rests on authority holding that

Duffield, 144 F.3d at 1200 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982)7).

In Duffield itself, the court held that the SEC did not sufficiently influence private conduct because it had not:

Id. at 1202 (emphasis added).8

Although Plaintiffs' position in the instant case has some force — factually, there is a stronger case for encouragement here compared to, e.g., Duffield, 114 F.3d at 1202 (there was no SEC rule or regulation that "`specifies arbitration as the favored means of resolving employer-employee disputes'") (emphasis added) — it is not legally persuasive.

First, the FAA on its face indicates that an arbitration agreement — like any other agreement — may be challenged on "such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. It purports to put arbitration agreements on equal, not more favorable, ground with other contracts.

Second, the Supreme Court's interpretation of the FAA, while acknowledging a general policy favoring of arbitration, is expressly predicated on the stated purpose of putting arbitration agreements on equal footing with all other contracts and preventing the disfavorable treatment of such agreements. As explained by the Supreme Court in Concepcion:

Concepcion, 563 U.S. at 339 (emphasis added); see also Hall St. Assocs., L.L.C. v. Mattel, Ic., 552 U.S. 576, 581 (2008) (stating that "Congress enacted the FAA to replace judicial indisposition to arbitration with a `national policy favoring [it] and plac[ing] arbitration agreements on equal footing with all other contracts'") (emphasis added); EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002) (stating that, "[b]ecause the FAA is `at bottom a policy guaranteeing the enforcement of private contractual arrangements,' we look first to whether the parties agreed to arbitrate a dispute, not to general policy goals, to determine the scope of the agreement").

The problem as identified in Concepcion was that arbitration agreements were being singled out simply because arbitration was the subject matter of the agreement. See Concepcion, 563 U.S. at 339 (stating that the "savings clause" in § 2 of the FAA "permits agreements to arbitrate to be invalidated by `generally applicable contract defenses, such as fraud, duress, or unconscionability,' but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue"). While it may be argued (as Plaintiffs have here) that, in safeguarding the enforceability of arbitration clauses against even well-established defenses based, e.g., on unconscionability and countervailing policy concerns embodied in other laws and statutes (see, e.g., id. at 357 (Breyer, J., dissenting); Am. Express Co. v. Italian Colors Rest., 133 S.Ct. 2304, 2313 (2013) (Kagan, J., dissenting)), the Supreme Court's interpretation of the FAA has swung the pendulum to the point of actually encouraging businesses to impose pre-dispute arbitration clauses, no court has yet to hold or suggest there is sufficient encouragement or coercion by virtue of the FAA to implicate state action under Lugar.9 Whatever encouragement the FAA gives to the implementation of pre-dispute arbitration clauses, it falls short of government conduct in cases where state action has been found. Cf. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 615 (1989) (concluding that state action for purposes of the Fourth Amendment was present because the "specific features of the regulations [imposed by the Federal Railroad Administration] did more than adopt a passive position toward the underlying private conduct"; "[t]he Government has removed all legal barriers to the [drug] testing authorized by Subpart D, . . . has made plain not only its strong preference for testing, but also its desire to share the fruits of such intrusions[,] . . . and has mandated that the railroads not bargain away the authority to perform tests granted by Subpart D"); Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983) (noting that "`[t]here may be a deprivation within the meaning of § 1983 not only when there has been an actual "taking" of property by a police officer, but also when the officer assists in effectuating a repossession over the objection of a debtor or so intimidates a debtor as to cause him to refrain from exercising his legal right to resist a repossession'").

Finally, the Court notes that, at the hearing, it asked Plaintiffs for their best case to support their claim of state action. Plaintiffs cited Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996) (addressing plaintiffs' challenge on constitutional grounds to three provisions in the Cable Television Consumer Protection and Competition Act of 1992). However, Denver Area is of little support to Plaintiffs' position. Denver Area simply stated the unremarkable proposition that the enactment of a statute by Congress constitutes state action. See id. at 737 (noting that "petitioners attack (as `abridging . . . speech') a congressional statute — which, by definition, is an Act of `Congress'" — and therefore state action). But here Plaintiffs have, as noted above, disavowed a challenge to the enactment of the FAA. Rather, their focus is on the judicial interpretation of the statute, and that particular argument lacks merit for the reasons discussed above.

II. CONCLUSION

Because there is no state action in the instant case, Plaintiffs lack a viable First Amendment challenge to the arbitration agreements. As Plaintiffs have not challenged the arbitration agreements on any other bases, the Court grants AT&T's motion to compel arbitration. Furthermore, as requested by AT&T, the Court stays this action pending the resolution of the arbitration. See 9 U.S.C. § 3.

This order disposes of Docket No. 25.

IT IS SO ORDERED.