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1

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. ; and DOES 1-10, 

inclusive,

Defendants.

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

 

PLAINTIFF’S RESPONSIVE 

MEMORANDUM IN OPPOSITION 

TO DEFENDANT’S MOTION TO 

COMPEL ARBITRATION AND 

STAY PROCEEDINGS

 

 

Stephen Taylor (phv)

Lemberg Law LLC

43 Danbury Road

Wilton, CT 06897

Telephone: (203) 653-2250

Facsimile: (203) 653-3424

E-mail: staylor@lemberglaw.com

Trinette G. Kent, Esq. (Bar No. 025180)

Of Counsel in Arizona and California

Lemberg Law LLC

10645 North Tatum Blvd.

Suite 200-192

Phoenix, AZ 85028

Telephone: 855-301-2100 ext. 5533 

Facsimile: 203-653-3424

E-mail: tkent@lemberglaw.com

Attorneys for Plaintiff

Case 2:15-cv-01637-SRB Document 30 Filed 03/10/16 Page 1 of 12
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Plaintiff Tee Foster (“Plaintiff”), through counsel, hereby opposes Defendant 

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

Proceedings. (Doc. No. 26).

INTRODUCTION

Plaintiff and Defendant never entered a contract of any sort. Aaron’s cannot 

enforce an arbitration agreement that never existed.

Even if Plaintiff had entered the arbitration agreement, it plainly would not 

cover Plaintiff’s claims here. The unsigned agreement put forth by Aaron’s covers 

only “disputes arising out of or relating in any way to [the consumer’s] agreement(s) 

with Aspen Way Enterprises, Inc. d/b/a Aaron’s . . . .” (Doc. No. 26-1 p. 12). 

Defendant puts forth no agreement Plaintiff allegedly entered with Aspen. Moreover, 

Plaintiff sues for automated calls he received as a reference for someone else’s 

Aaron’s account.

1

 Plaintiff received these calls entirely independent from and not 

“relating in any way to” his relationship with Aaron’s. Accordingly, even if there was 

a contract (there was not), it did not cover Plaintiff’s claim here, and the Court should 

not compel arbitration.

RESTATEMENT OF FACTS

Plaintiff is an adult individual residing in Tempe, Arizona. (Doc. No. 1 

(“Complaint”) ¶ 9). Aaron’s is a Georgia business entity with a principal office 

located in Atlanta, Georgia. (Doc. No. 1 ¶ 10; Doc. No. 11 (“Answer”) ¶ 11). Plaintiff 

sues Aaron’s individually and on behalf of a class of consumers under the Telephone 

Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), for automated calls 

placed by Aaron’s without Plaintiff and the putative class’s prior express consent. 

 

1

See Doc. No. 1 (“Complaint”) ¶ 16 (“The calls were placed by Defendant in an 

attempt to collect a debt or recover rented property from an acquaintance of Plaintiff, 

Ms. Smith.”); Doc. No. 11 (“Answer”) ¶ 16 (“Aaron’s is without knowledge or 

information sufficient to form a belief as to the allegations . . . .”).

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(Complaint ¶ 23 (defining the class)).

In and around July, 2015, Aaron’s repeatedly placed calls using prerecorded 

messages and an ATDS to Plaintiff’s cellular telephone number, 864-xxx-3454. 

(Complaint ¶¶ 14-15). When Plaintiff answered Aaron’s calls, he heard a prerecorded 

message asking Plaintiff to please hold for the next available Aaron’s representative. 

(Complaint ¶ 18). 

On Aaron’s calls, Aaron’s representatives indicated that they were calling 

Plaintiff regarding his acquaintance Ms. Smith’s Aaron’s account. (Complaint ¶ 16). 

Plaintiff is not an Aaron’s customer, has no ongoing business with Aaron’s (Complaint 

¶ 19), therefore Aaron’s had no legitimate reason to call his cellular telephone. On the 

calls with Aaron’s, “Plaintiff repeatedly asked that the calls to his number stop. The 

calls did not stop.” (Complaint ¶ 20).

According to Aaron’s, on June 8, 2015, Plaintiff entered Aaron’s Store C1659 in 

Tempe, Arizona; spoke to two Aaron’s employees; filled out and signed a “Lease 

Agreement” and “Mandatory Arbitration Agreement”; and left the store without any 

Aaron’s merchandise in hand. (Doc. No. 26 (“Motion”) at 3:3-22). According to 

Aaron’s, “[s]hortly thereafter,” Aaron’s determined that it did not have a correct social 

security number for Plaintiff. Aaron’s called Plaintiff to notify him of the issue and to 

bring his social security card into the store. Plaintiff never did so. Accordingly, 

Plaintiff never received any merchandise from Aaron’s, and Aaron’s disposed of the 

documents Plaintiff allegedly signed. (Motion at 3:17-22).

Aaron’s makes no claim that it or any representative signed any agreement with 

Plaintiff. Aaron’s makes no claim that either party received any consideration from 

the other.

Plaintiff alleges he was called regarding not his business with Aaron’s, but on 

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4

the account of his acquaintance Ms. Smith.2 The unsigned and unfilled Lease Order 

Form Aaron’s puts forth contains a section titled “Personal References” and asks for 

name, address, phone number and relationship. (Doc. No. 26-1 p. 7). Plaintiff 

presumes he was listed as a reference on Ms. Smith’s application and was called for 

that reason.

ARGUMENT

I. PLAINTIFF DID NOT ENTER ANY CONTRACT WITH 

DEFENDANT AND IS NOT BOUND BY ANY ARBITRATION 

AGREEMENT

The facts put forth by Aaron’s establish that no contract was entered between 

Aaron’s and Plaintiff, thus Plaintiff cannot be bound to arbitrate. The rules concerning 

enforcement of arbitration provisions are simply rules of contractual construction.

Indeed, although the Federal Arbitration Act (the “FAA”) reflects a federal policy 

favoring arbitration, Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 

U.S. 614, 105 S. Ct. 3346 (1985), the Act “does not confer a right to compel arbitration 

of any dispute at any time; it confers only the right to obtain an order directing that 

‘arbitration proceed in the manner provided for in [the parties’] agreement.’” Volt Info. 

Scis., Inc. v. Board of Trs. Of Leland Stanford Junior Univ., 489 U.S. 468, 474, 109 S.

Ct. 1248 (1989) (quoting 9 U.S.C. § 4). “The right to compel arbitration derives from 

a contractual right, and one who is not a party to a contract has no standing to compel 

arbitration.” Britton v. Co-op Banking Grp., 916 F.2d 1405, 1413 (9th Cir. 1990); 

Lorber Indus. v. Los Angeles Printworks Corp., 803 F.2d 523 (9th Cir. 1986). 

Accordingly, the FAA requires “a transaction involving commerce” to apply. 9 U.S.C. 

§ 2 (emphasis added).

 

2 Defendant’s recounting falls in line—it says it never leased Plaintiff any merchandise 

and discarded his application shortly after Plaintiff’s June 8, 2015 store visit. (See 

Motion at 3:17-22). Thus it had no reason to call Plaintiff thereafter.

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Defendant does not satisfy that Plaintiff entered any contract. Under Arizona

law,

3

“[f]or an enforceable contract to exist, there must be an offer, an acceptance, 

consideration, and sufficient specification of terms so that the obligations involved can 

be ascertained.” K–Line Builders, Inc. v. First Fed. Sav. & Loan Ass’n, 677 P.2d 1317, 

1320 (Ariz. Ct. App.1983) (citing Savoca Masonry Co., Inc. v. Homes & Son Constr. 

Co., Inc., 542 P.2d 817 (Ariz. 1975)). An offer is a “manifestation of willingness to 

enter into a bargain, so made as to justify another person in understanding that his 

assent to that bargain is invited and will conclude it.” Id. (quoting Restatement (2d) of 

Contracts, § 24). “The offer creates the power of acceptance permitting the offeree, by 

accepting the offer to transform the offer as promised into a contractual obligation.” Id. 

An acceptance is a “manifestation of assent to the terms thereof made by the offeree in 

a manner invited or required by the offer.” Id. (quoting Restatement (2d) of Contracts, 

§ 50).

Plainly, Defendant does not allege offer and acceptance or consideration here, 

never mind establish them. Aaron’s claims only that Plaintiff visited its store, signed 

his name on two documents, left empty-handed, and was denied rental of its 

merchandise once Aaron’s determined it had an incorrect social security number for 

Plaintiff. (Motion at 3:3-22). Aaron’s does not claim that it signed either document, 

both of which provide a line for, but lack, its representative’s signature. (Doc. No. 26-1 

pp. 9-10, 12). Aaron’s says it later must have discarded the documents signed by 

Plaintiff, at its discretion, because it no longer possesses those signed documents.

 

3 “[O]rdinary state-law principals that govern the formation of contracts” determine 

whether parties agreed to arbitrate. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 

938, 944, 115 S. Ct. 1920 (1995). Plaintiff is an Arizona resident, Defendant purports 

Plaintiff entered a contract while in Arizona, and Defendant assumes Arizona law 

applies (see Motion at 16:2-7). Plaintiff agrees. See Shannon-Vail Five Inc. v. Bunch, 

270 F.3d 1207, 1211 n.2 (9th Cir. 2001) (citing Restatement (2d) of Conflict of Laws, 

§ 188(2) (1971), listing five factors for determining applicable law).

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(Motion at 3:21-22). The clear upshot is that no business relationship existed moving 

forward, or ever. At most, Defendant alleges that Plaintiff made an offer by filling out 

an application. See, e.g., Acacia Mut. Life Ass’n v. Berry, 94 P.2d 770, 773-74 (Ariz. 

1939) (contract for life insurance executed only upon application and first monthly 

payment being accepted); see also Paczosa v. Cartwright Elementary School Dist. No. 

83, 213 P.3d 222, 227 (Ariz. 2009) (finding retirements benefit application did not 

function as offer and acceptance). Clearly Defendant did not accept that offer at any 

time—it did not lease any merchandise to Plaintiff, it sent Plaintiff no final contract, 

and indeed it discarded Plaintiff’s application altogether. 

Moreover, even if Defendant had accepted Plaintiff’s offer in construct, it 

provided no consideration to Plaintiff. While a promise for a promise constitutes 

adequate consideration, K-Line, 677 P.2d at 1320, here Aaron’s clearly promised 

Plaintiff nothing—it reviewed his application, asked Plaintiff to provide his social 

security card and, when that was not done, discarded his application. Through the lens 

of the FAA, Plaintiff and Defendant entered no commercial “transaction” of any sort, 

thus Plaintiff’s claim for Defendant’s unlawful automated calls is bound to arbitration 

by nothing. See 9 U.S.C. § 2.

Additionally, even if Defendant could establish a contract, it fails to show it is 

the entity with standing to compel arbitration. Here, Defendant says Plaintiff signed 

“Aaron’s Mandatory Arbitration Agreement.” (Motion at 9:4-18; Doc. No. 26-1 p. 12). 

That agreement provides that it is between the consumer and “Aspen Way Enterprises, 

Inc.” Plaintiff sues Aaron’s, Inc., the Georgia corporation which placed automated 

calls to his cell phone, not Aspen Way Enterprises, Inc. Defendant makes no argument 

how an agreement between Plaintiff and Aspen Way Enterprises, Inc. would allow it to 

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compel Plaintiff to arbitrate his claims for Aaron’s, Inc.’s unlawful automated calls.

4

Federal policy favoring arbitration cannot compel arbitration on its own, and here 

Defendant utterly fails to establish its standing (assuming any contract exists). See

Britton, 916 F.2d at 1413; Lorber Indus., 803 F.2d at 525. 

Because there was no contract between Plaintiff and Aaron’s or Aspen Way, 

Plaintiff cannot be compelled to arbitrate his claims.

II. THE CONTRACT DEFENDANT PURPORTS WAS ENTERED 

WOULD NOT COVER PLAINTIFF’S CLAIMS

Even if the Court finds that the Plaintiff did enter a contract and that Defendant 

has standing to compel arbitration, the plain language of the ‘Mandatory Arbitration 

Agreement’ does not cover Plaintiff’s TCPA claims. Again, the FAA “confers only 

the right to obtain an order directing that ‘arbitration proceed in the manner provided 

for in [the parties’] agreement.’” Volt, 489 U.S. at 474 (quoting 9 U.S.C. § 4); see 

E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 122 S. Ct. 754 (2002) (“[N]othing in the 

[FAA] authorizes a court to compel arbitration of any issues, or by any parties, that are 

not already covered in the agreement.”). 

Here, the ‘Mandatory Arbitration Agreement’ states:

 

4

The “Mandatory Arbitration Agreement” does not state that it applies to Aspen 

Way’s affiliates or agents (see Doc. No. 26-1 p. 12), nor does Defendant make any 

argument that it qualifies as such, see Amisil Holdings Ltd. v. Clarium Capital Mgmt., 

622 F. Supp. 2d 825, 832 (N.D. Cal. 2007) (“[A]gents of a signatory can compel the 

other signatory to arbitrate so long as (1) the wrongful acts of the agents for which they 

are sued relate to their behavior as agents or in their capacities as agents . . . and (2) the 

claims against the agents arise out of or relate to the contract containing the arbitration 

clause . . . .” (citing Letizia v. Prudential Bache Secs., Inc., 802 F.2d 1185 (9th Cir. 

1986), and Britton, 916 F. 2d at 1413)); see, e.g., Mims v. Glob. Credit & Collection 

Corp., 803 F. Supp. 2d 1349, 1356 (S.D. Fla. 2011) (denying motion to compel TCPA 

claim where movant not party to contract and, “The Court cannot conclude the parties 

clearly intended to benefit Global when executing the Agreement and the 

accompanying arbitration clause”). 

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YOU AND WE AGREE THAT ANY AND ALL DISPUTES ARISING 

OUT OF OR RELATING IN ANY WAY TO YOUR AGREEMENTS(S) 

WITH ASPEN WAY ENTERPRISES, INC. D/B/A AARON’S 

(“Aaron’s” or “we”), THE PRODUCTS OR SERVICES PROVIDED TO 

YOU BY AARON’S, OR THE AMOUNTS PAID OR OWED BY YOU 

TO AARON’S (“Disputes”) SHALL BE RESOLVED EXCLUSIVELY 

IN BINDING ARBITRATION RATHER THAN LITIGATION IN 

COURT.

(Doc. No. 26-1 p. 12). For multiple reasons, this language does not cover 

Plaintiff’s TCPA claims.

First, while the Mandatory Arbitration Agreement applies to disputes relating to 

agreements with Aspen Way, Defendant does not put forth any additional contract 

Plaintiff allegedly entered with Aspen Way. The ‘Lease Agreement’ Defendant claims 

Plaintiff signed states is purportedly between the consumer and Defendant here, 

Aaron’s, Inc., not Aspen Way. Thus if both contracts were entered, the Mandatory 

Arbitration Agreement plainly would not cover issues arising out of the Lease 

Agreement.

Second, Plaintiff’s TCPA claims do not arise out of his own personal business 

with Aaron’s or Aspen Way. As alleged by Plaintiff and supported by Defendant’s 

Motion, Defendant was not calling Plaintiff regarding his own Aaron’s account. 

Defendant was calling Plaintiff regarding Plaintiff’s acquaintance Ms. Smith’s 

account. (Complaint ¶ 16; Motion at 3:17-22 (Defendant stating it never leased 

Plaintiff any merchandise and discarded his application shortly after Plaintiff’s June 8, 

2015 store visit)). Had Plaintiff never been rejected by Aaron’s on June 8, 2015, he 

would still have been auto-dialed on Ms. Smith’s account, and would still have his 

TCPA claim. See Stevens-Bratton v. TruGreen, Inc., 2016 WL 155087, at *6 (W.D. 

Tenn. Jan. 12, 2016) (“‘[W]hen trying to determine if a dispute falls within an 

arbitration clause, [a] proper method of analysis . . . is to ask if an action could be 

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maintained without reference to the contract or relationship at issue. If it could, it is 

likely outside the scope of the arbitration agreement.’” (quoting Whaley v. T-Mobile, 

USA, Inc., 2013 WL 5155342 (E.D. Ky. Sept. 12, 2013))). Thus Plaintiff’s TCPA 

claims in no way arise out of his personal contacts with Aaron’s or Aspen Way, and by 

its terms the Arbitration Agreement does not cover Plaintiff’s claim. See, e.g., In re 

Jiffy Lube Intern., Inc. Text Spam Litig., 847 F. Supp. 2d 1253, 1263 (S.D. Cal. 2012) 

(“Though it seems likely that [plaintiff] provided his telephone number when signing 

the contract, it is unclear that later use of that number to commit a tort [a TCPA 

violation] can be said to relate to the contract . . . .”); see also Wagner v. Discover 

Bank, 2014 WL 128372, at *5 (D. Colo. Jan. 13, 2014) (finding defendant’s automated 

collection calls on plaintiff’s account not related to plaintiff’s account sufficient to 

compel arbitration)

In Jiffy Lube, the plaintiffs allegedly signed arbitration agreements in connection 

with receiving oil changes, and defendant obtained the plaintiffs’ telephone numbers 

from the oil change invoices. The defendant provided those numbers to a 

telemarketing company which allegedly auto-dialed the plaintiffs, not regarding the oil 

changes they had received, but with text messages offering the plaintiffs’ membership 

into a discount club. The court found that the oil change arbitration agreement was not 

sufficiently related to the defendant’s promotional text messages to allow the TCPA 

claims to be bound to arbitration, noting that arbitration agreements must have limiting 

clauses to prevent “absurd results.” Id. at 1262-63. The connection is even more 

strained—actually passed the breaking point—here, where Defendant’s automated 

calls to Plaintiff stem from Ms. Smith’s Aaron’s account, not Plaintiff’s June 8, 2015 

interaction with Aaron’s. Accordingly this dispute is not bound by the Arbitration 

Agreement.

Defendant argues that Plaintiff’s claims must be arbitrated because his “TCPA 

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claims relate to an agreement in which the plaintiff provided consent to receive the 

calls at issue.” (Motion at 15:1-14 (citing Stevens-Bratton, 2016 WL 155087, and 

Whaley, 2013 WL 5155342)).

5

 The principle of Stevens-Bratton and Whaley are 

inapposite to Defendant’s arguments and the facts distinguishable. In both cases, the 

courts recognized that a claim which can be brought without reference to the contract 

or relationship providing for arbitration falls outside the scope of the arbitration 

agreement. Stevens-Bratton, 2016 WL 155087, at *6; Whaley, 2013 WL 5155342, at 

*3. Here, Plaintiff’s claim relates exclusively to Ms. Smith’s Aaron’s account. To 

whatever extent Defendant anticipates a prior express consent defense,6that defense 

will be based on the Lease Agreement or the ‘Lease Order Form’ where Plaintiff 

allegedly provided his number, not the separate Arbitration Agreement. (See Motion at 

15:15-17 (“Plaintiff’s TCPA claims cannot be resolved without referring to the Lease 

Order Form or Lease Agreement to determine whether Aaron’s, in fact, had consent to 

place the calls at issue.”)). Accordingly, Defendant need not reference the Arbitration 

Agreement to raise any defense, and per Stevens-Bratton and Whaley, cited by 

 

5

Prior express consent is an affirmative defense under the TCPA for which a 

defendant bears the burden of proof. Olney v. Job.com, Inc., 2014 WL 174764, at *3 

(E.D. Cal. May 1, 2014); Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 

2129364, at *3 (S.D. Cal. June 11, 2012).

6

Plaintiff disputes that his provision of his number regarding his prospective lease 

with Defendant equates to prior express consent for Defendant to autodial Plaintiff for 

any reason, here Ms. Smith’s account. See Satterfield v. Simon & Schuster, Inc., 569 

F.3d 946, 955 (9th Cir. 2009) (stating in regards to TCPA that “[e]xpress consent is 

‘consent that is clearly and unmistakably stated’”); see also Kolinek v. Walgreen Co., 

2014 WL 3056813, at *4 (N.D. Ill. July 7, 2014) (“The FCC has established no general 

rule that if a consumer gives his cellular phone number to a business, she has in effect 

given permission to be called at that number for any reason at all, absent instructions to 

the contrary. Rather, to the extent the FCC's orders establish a rule, it is that the scope 

of a consumer's consent depends on its context and the purpose for which it is given. 

Consent for one purpose does not equate to consent for all purposes.”).

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Defendant, Plaintiff’s claims should not be arbitrated.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny 

Defendant’s Motion to Compel Arbitration and Stay Proceedings.

DATED: March 10, 2016 By: /s/ Stephen Taylor

 Stephen Taylor (phv)

 Lemberg Law LLC

 43 Danbury Road

 Wilton, CT 06897

 Telephone: (203) 653-2250

 Facsimile: (203) 653-3424

 E-mail: staylor@lemberglaw.com

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CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that on March 10, 2016, a copy of the foregoing was 

filed with the Clerk of the Court through the CM/ECF system, which sent notice of 

filing to all counsel of record.

 /s/ Stephen Taylor 

Stephen Taylor

Case 2:15-cv-01637-SRB Document 30 Filed 03/10/16 Page 12 of 12