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David B. Rosenbaum, 009819 

Hayleigh S. Crawford, 032326 

OSBORN MALEDON, P.A. 

2929 North Central Avenue, 21st Floor 

Phoenix, Arizona 85012-2793 

(602) 640-9000 

(602) 640-9050 Fax 

drosenbaum@omlaw.com

hcrawford@omlaw.com

Attorneys for Defendant Aaron’s, Inc. 

Kristine McAlister Brown 

(admitted pro hac vice) 

Derin B. Dickerson 

(admitted pro hac vice) 

ALSTON & BIRD LLP 

1201 West Peachtree Street 

Atlanta, Georgia 30309-3424 

(404) 881-7000 

(404) 881-7777 Fax 

kristy.brown@alston.com

derin.dickerson@alston.com

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

 

Tee Foster, on behalf of himself and all 

others similarly situated, 

 Plaintiff, 

v. 

Aaron’s, Inc., 

Defendant. 

 CASE NO.: 2:15-cv-01637-SRB 

 

DEFENDANT’S REPLY IN SUPPORT 

OF ITS MOTION TO COMPEL 

ARBITRATION AND STAY 

PROCEEDINGS 

(Oral Argument Requested)

 

 

 
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INTRODUCTION 

Plaintiff Tee Foster (“Plaintiff”) offers no valid reason this Court should deny 

Defendant Aaron’s, Inc. (“Aaron’s”) Motion to Compel Arbitration and Stay 

Proceedings. Plaintiff makes two arguments as to why the Court should relieve him 

of the contractual obligation to arbitrate that he willingly undertook. But neither has 

merit. 

Plaintiff argues that he never entered into a contract with Aaron’s. But 

this argument completely ignores Aaron’s evidence, which establishes 

that Plaintiff necessarily entered into multiple contracts with Aaron’s, 

including the Lease Agreement and the Mandatory Arbitration 

Agreement, both of which are valid, enforceable contracts. The fact 

Aaron’s later terminated Plaintiff’s Lease Agreement does not affect the 

enforceability of the Mandatory Arbitration Agreement in any way. 

Plaintiff argues that even if he entered into a contract with Aaron’s, his 

claims fall outside the scope of his Mandatory Arbitration Agreement. 

Plaintiff is wrong. His Mandatory Arbitration Agreement applies to any 

disputes that arise out of or relate to the Parties’ agreements. Plaintiff’s 

TCPA claim arises out of or relates to his Lease Order Form and Lease 

Agreement. These agreements contain consent provisions that give 

Aaron’s permission to contact Plaintiff. Accordingly, his TCPA claim 

cannot be resolved without reference to his agreements, and his TCPA 

claim necessarily arises out of or relates to the agreements. 

Plaintiff offers no evidence to rebut Aaron’s evidence that the Parties entered a valid 

agreement that requires Plaintiff to arbitrate, rather than litigate in court, the claims he 

asserts here. For these reasons, and for the reasons set forth more fully below, this 

Court should grant Aaron’s Motion to Compel Arbitration and Stay Proceedings. 
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ARGUMENTS AND AUTHORITIES 

I. The Evidence Clearly Establishes That Plaintiff Entered Into A 

Contract With Aaron’s That Requires Him To Arbitrate His Claims. 

Plaintiff does not dispute that he signed a Lease Order Form and Lease 

Agreement. Instead, Plaintiff argues that the agreements he signed were not 

enforceable based on the allegations that: (i) Aaron’s did not accept Plaintiff’s offer to 

lease merchandise; (ii) there was insufficient consideration supporting the agreement; 

and (iii) Aaron’s is not a party to the agreement. Dkt. No. 30 at 5–6. The record 

evidence, however, directly controverts each of Plaintiff’s arguments. 

First, Plaintiff’s argument that Aaron’s did not sign or accept Plaintiff’s Lease 

Agreement and Mandatory Arbitration Agreement is foreclosed by Aaron’s evidence. 

In contending that “Aaron’s does not claim that it signed” the Lease Agreement and 

the Mandatory Arbitration Agreement, Plaintiff ignores the Declarations of the 

Aaron’s employees who assisted Plaintiff when he visited the Aaron’s store on June 8, 

2015. See Dkt. No. 30 at 3. In her Declaration, Aaron’s employee Ileanna Salvatierra 

states that she met with Plaintiff and that “it was Aaron’s standard practice and 

procedure that the General Manager or Customer Account Manager . . . sign the two 

contracts.” Salvatierra Decl. (Dkt. No. 26-1, Ex. B) at ¶ 4. Similarly, Mr. Simental’s 

Declaration states that “it is Aaron’s standard practice and procedure that the General 

Manager or Customer Account Manager meets with the potential customer to review 

and sign the contracts required to enter into a lease.” Simental Decl. (Dkt. No. 26-1, 

Ex. A) at ¶ 3 (emphasis added). Mr. Simental’s Declaration further states that he was 

the Customer Account Manager on duty the day Plaintiff came into the store and that 

he would have followed the standard pattern and practice. Id. at ¶¶ 4, 6. This 

unrebutted testimony of Aaron’s standard practices and procedures is precisely the 

type of evidence that courts consistently rely upon to establish similar facts. See, e.g.,

Cuadras v. MetroPCS Wireless, Inc., No. CV 09–7897, 2011 WL 11077125, at *5 

(C.D. Cal. Aug. 8, 2011) (granting motion to compel arbitration despite fact that 
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defendant had “not produced any signed agreement” in light of “the testimony of one 

of [the defendant’s] employees that it is a ‘standard business practice’ to provide 

customers with the T & Cs when they activate service”). Aaron’s has sufficiently 

demonstrated that it accepted Plaintiff’s offer and entered into contracts with Plaintiff 

when both parties signed the Lease Agreement and Mandatory Arbitration 

Agreement. 

Plaintiff relies on two cases to support his argument that Aaron’s did not 

accept Plaintiff’s offer, but they do not help Plaintiff’s cause. See Acacia Mut. Life 

Ass’n v. Berry, 94 P.2d 770 (Ariz. 1939); Paczosa v. Cartwright Elementary Sch. 

Dist. No. 83, 213 P.3d 222 (Ariz. Ct. App. 2009). Plaintiff cites Acacia Mutual as 

holding that a valid contract is not formed until payment is accepted. Dkt. No. 30 at 

6. In that case, however, the express terms of the insurance application at issue 

provided that the application did not constitute an agreement, and that the agreement 

“shall not take effect until this application has been approved by the Association, and 

the first payment required thereon . . . .” Acacia Mutual, 94 P.2d at 771. There are no 

such provisions in the contracts at issue here. Moreover, Arizona law is clear that 

mutual promises are sufficient consideration to create a contract even when the 

promise is simply to submit an application for services. See Rutherford v. John 

O’Lexey’s Boat & Yacht Ins., Ltd., 576 P.2d 1380, 1382 (Ariz. Ct. App. 1978) 

(“[Because] Rutherford was told that temporary insurance was effective provided that 

he submit a completed application on Monday, we conclude that a contract was 

created subject to a condition subsequent . . . . His promise to complete the 

application and pay the premium for permanent insurance was sufficient consideration 

to support this contract.”). 

The decision in Paczosa likewise misses the mark. There, the court addressed 

the issue of whether an application for retirement benefits constituted an employment 

contract. Paczosa, 213 P.3d at 226–27. The court concluded that the benefits 

application was not an employment contract because the application did not include 
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critical terms such as salary or duties, was not specific to the two plaintiffs, and 

expressly stated that it was an application rather than an agreement. Id. In contrast, 

all of Aaron’s Lease Agreements include detailed terms that specifically relate to the 

customer, including his or her contact information, the specific merchandise to be 

leased, the length of the lease, and the frequency of payments and amount due in each 

payment. See Dkt. No. 26-1, Ex. A, Tab 2. Here, Aaron’s evidence shows that 

Plaintiff’s Lease Agreement included Plaintiff’s telephone number and address, as 

well as information relating to Plaintiff’s agreement to pay $229.46 each month for 24 

months for the specific merchandise he leased. Id. at Tab 4. Moreover, unlike the 

application in Paczosa, the Lease Agreement is called an “agreement” throughout the 

document. Id. at Tab 2. When Mr. Simental and Plaintiff signed it, promises were 

exchanged, and a contract was formed. When Aaron’s discovered that Plaintiff had 

failed to provide his true Social Security Number, Aaron’s terminated the contract, 

which terminated the parties’ obligation to perform. Simental Decl. (Dkt. No. 26-1, 

Ex. A) at ¶ 7. It did not, however, relieve the parties of their obligation to arbitrate. 

Mandatory Arbitration Agreement (Dkt. No. 31, Substitute Ex. A, Tab 3) at ¶ d (“This 

Arbitration Agreement survives the termination of your Agreement with Aaron’s . . . 

.”); see also Saleemi v. Gosh Enters., Inc., 467 Fed. App’x 744 (9th Cir. 2012) 

(citing Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 204 (1991)) (applying a 

“presumption that dispute resolution provisions survive termination of a contract”). 

Second, it is indisputable that there was consideration supporting the Lease 

Agreement and Mandatory Arbitration Agreement. As Plaintiff acknowledges, 

Arizona law is clear that mutual promises are sufficient to form a contract. Indeed, 

“in this state monetary consideration is not always required as consideration. 

Adequate consideration consists of a benefit to the promisor and a detriment to the 

promisee. Clearly a promise for a promise constitutes adequate consideration.” 

Carroll v. Lee, 712 P.2d 923, 926 (Ariz. 1986); see also Palmer v. Kelly, 79 P.2d 344, 

346 (Ariz. 1938) (“It has always been held that mutual promises are sufficient 
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consideration for a contract.”). Ignoring the clear language of the Lease Agreement, 

Plaintiff contends that “Aaron’s clearly promised Plaintiff nothing.” Dkt. No. 30 at 6. 

To the contrary, according to the terms of the Lease Agreement, Aaron’s promised to 

lease to Plaintiff specific property for a particular term in exchange for Plaintiff’s 

promise to pay a specified rate for the term of the lease. Likewise, in the Mandatory 

Arbitration Agreement, Plaintiff and Aaron’s mutually promised to arbitrate their 

disputes. These are precisely the type of exchange of promises that suffice as 

adequate consideration. See A.R.S. § 44–121 (“Every contract in writing imports 

a consideration.”). 

Third, Plaintiff’s argument that Aaron’s was not a party to the Mandatory 

Arbitration Agreement is simply wrong. As Aaron’s Notice of Substitute Exhibit 

makes clear, Aaron’s is a party to the Mandatory Arbitration Agreement with 

Plaintiff. See Dkt. No. 31. The confusion created by Aaron’s previously submitted 

exhibit, which references Aspen Way (an Aaron’s franchisee) instead of Aaron’s, was 

simply the result of a clerical error that resulted in the filing of an exhibit that did not 

match the Mandatory Arbitration Agreement quoted by Aaron’s in its Motion to 

Compel Arbitration. See Dkt. No. 26 at 4 (quoting the correct contract). The 

Mandatory Arbitration Agreement, by its express terms, is between Plaintiff and 

Aaron’s (not Aspen Way). See Dkt. No. 31, Substitute Ex. A, Tab 3. There can be no 

serious dispute that Aaron’s is a party to the Mandatory Arbitration Agreement, and 

the Parties formed a valid, enforceable agreement to arbitrate Plaintiff’s claims. 

II. The Scope Of The Mandatory Arbitration Agreement Covers 

Plaintiff’s Claims. 

Plaintiff’s argument that “the plain language of the ‘Mandatory Arbitration 

Agreement’ does not cover Plaintiff’s TCPA claims” must fail. See Dkt. No. 30 at 7. 

The scope of the Mandatory Arbitration Agreement is unquestionably broad, covering 

“any and all disputes arising out of or relating in any way to [Plaintiff’s] agreement(s) 

with Aaron’s, Inc.” See Dkt. No. 31, Substitute Ex. A, Tab 3 at ¶ a; see also PPG 
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Indus., Inc. v. Pilkington PLC, 825 F. Supp. 1465, 1478 (D. Ariz. 1993) (citing 

Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1464 (9th Cir. 1983)) 

(“The phrase ‘arising out of or relating to’ has been construed as creating a broad 

arbitration clause.”); see also BioD, LLC v. Amnio Tech., LLC, No. 2:13-cv-1670, 

2014 WL 268575, at *4 (D. Ariz. Jan. 24, 2014) (same). Plaintiff’s “agreement with 

Aaron’s” encompasses both the Lease Order Form and the Lease Agreement, each of 

which contains a provision expressly giving Aaron’s consent to contact Plaintiff. 

Because Aaron’s “prior express consent” defense arises directly out of these consent 

clauses, the question of whether Aaron’s had Plaintiff’s consent to place the calls at 

issue in this lawsuit necessarily relates to the Lease Order Form and Lease 

Agreement. See Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999) 

(“factual allegations need only ‘touch matters’ covered by the contract containing the 

arbitration clause and all doubts are to be resolved in favor of arbitrability”). 

Plaintiff also argues that his TCPA claims are outside the scope of his 

Mandatory Arbitration Agreement because they do not arise out of his own personal 

business with Aaron’s. Dkt. No. 30 at 8–10. In other words, Plaintiff asks the Court 

to decide whether the consent provisions in his Lease Order Form and Lease 

Agreement will ultimately be found broad enough to provide consent for the calls at 

issue here. In making this argument, Plaintiff asks the Court to impermissibly 

evaluate the merits of Plaintiff’s claims and Aaron’s defenses. The Court’s role, 

however, “is strictly limited to determining arbitrability and enforcing agreements to 

arbitrate, leaving the merits of the claim and any defenses to the arbitrator.” See Rep. 

of Nicar. v. Standard Fruit Co., 937 F.2d 469, 478 (9th Cir. 1991); Whaley v. TMobile, USA, Inc., No. 13-31, 2013 WL 5155342, at *3 (E.D. Ky. Sept. 12, 2013) (in 

considering a motion to compel arbitration in a TCPA case, “the Court’s duty is not to 

determine whether [the defendant’s] defense is meritorious”). The only question 

before the Court is arbitrability, and courts routinely grant motions to compel 

arbitration in TCPA cases when, as here, the defendant’s stated defense is based on a 
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contractual consent clause. See, e.g., Stevens-Bratton v. TruGreen, Inc., No. 2:15-cv2472, 2016 WL 155087, at *6 (W.D. Tenn. Jan. 11, 2016) (compelling arbitration 

where the plaintiff’s TCPA claims “cannot be resolved without referring to” the 

agreement because it was “necessary to examine the agreement to resolve [the 

defendant’s] affirmative defense of consent”); Whaley, 2013 WL 5155342, at *3 

(compelling arbitration when the “action cannot be properly maintained without 

reference to the contract at issue because, among other reasons, [the defendant] relies 

upon a clause of the agreement as its defense to plaintiff’s claim”). 

Plaintiff relies on two cases to argue that his claims are not within the scope of 

his Mandatory Arbitration Agreement, but neither case involved a contract containing 

a consent provision. See In re Jiffy Lube Int’l, Inc. Text Spam Litig., 847 F. Supp. 2d 

1253 (S.D. Cal. 2012); Wagner v. Discover Bank, No. 12-cv-02786, 2014 WL 128372 

(D. Colo. Jan. 13, 2014). In fact, neither case involved a defense arising out of a 

contractual provision at all. For example, the defendant in Jiffy Lube argued that it 

had consent to call the plaintiffs because the plaintiffs had provided their telephone 

numbers during previous oil change visits to Defendant. In re Jiffy Lube, 847 F. 

Supp. 2d at 1258. But here, Aaron’s consent defense is not based on the fact that 

Plaintiff provided his contact information to Aaron’s. To the contrary, the facts to 

support Aaron’s affirmative defense arise directly out of the express consent terms of 

the Lease Order Form and Lease Agreement. No such clause existed in Jiffy Lube or 

Wagner. 

Because the consent clauses in the Lease Agreement and Lease Order Form are 

the crux of the question of arbitrability of Plaintiff’s claims, neither of the cases 

Plaintiff relies on has any bearing on the enforceability of the Mandatory Arbitration 

Agreement. The Supreme Court has emphasized that courts should interpret 

arbitration clauses liberally in favor of arbitration. Accordingly, to the extent that this 

Court has any doubts about Aaron’s Motion to Compel Arbitration, those “doubts 
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concerning the scope of arbitratable issues should be resolved in favor of arbitration.” 

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). 

CONCLUSION 

For the foregoing reasons and for the reasons stated in Aaron’s Motion to 

Compel Arbitration and Stay Proceedings, Aaron’s respectfully requests that this 

Court grant its motion to compel arbitration and stay this action. 

Dated this 21st day of March, 2016. 

OSBORN MALEDON, P.A. 

By: s/ Hayleigh S. Crawford 

David B. Rosenbaum, 009819 

Hayleigh S. Crawford, 032326 

2929 North Central Avenue 

21st Floor 

Phoenix, Arizona 85012-2793 

ALSTON & BIRD LLP 

Kristine McAlister Brown (admitted pro hac vice) 

Derin Dickerson (admitted pro hac vice) 

1201 West Peachtree Street 

Atlanta, Georgia 30309-3424 

 

Attorneys for Defendant Aaron’s, Inc. 

CERTIFICATE OF SERVICE 

I hereby certify that on March 21, 2016, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to all CM/ECF registrants. 

 s/ Dawn M. Dybdahl