Rivas v. Experian Information Solutions, Inc.

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARIANA SANTAMARIA RIVAS, *
Plaintiff, *
v. * Civil Action No. RDB-25-818
EXPERIAN INFORMATION *
SOLUTIONS, INC.
*
Defendant.
* * * * * * * * * * * * *
MEMORANDUM OPINION
This matter arises from a series of interactions between Plaintiff Mariana Santamaria
Rivas (“Plaintiff” or “Ms. Rivas”) and Defendant Experian Information Solutions, Inc.
(“Experian” or “Defendant”).1 See (ECF No. 1). Ms. Rivas alleges that Experian is a consumer
reporting agency that misrepresented her credit file by mixing her information with that of
other consumers in violation of the federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§§ 1681, et seq. See generally (ECF No. 1). On March 12, 2025, Ms. Rivas initiated this action
by filing in this Court a two-Count Complaint alleging two FCRA claims against Defendants
Experian, Equifax Information Services, LLC (“Equifax”), and Trans Union LLC (“Trans
Union”) (collectively, “Original Defendants”). See (ECF No. 1). Specifically, she alleges that
Original Defendants (1) violated 15 U.S.C. § 1681e(b) by failing to follow reasonable
procedures to assure the maximum possible accuracy of her consumer reports (Count I); and
1 As explained below, Ms. Rivas originally sued three consumer reporting agencies: Experian, Equifax
Information Services, LLC (“Equifax”), and Trans Union LLC (“Trans Union”) (collectively, “Original
Defendants”). See (ECF No. 1). Pursuant to joint stipulations between Plaintiff, Equifax, and Trans Union,
(ECF Nos. 43, 45), however, Plaintiff has dismissed with prejudice her claims against Equifax and Trans Union.
See (ECF Nos. 44, 46). Accordingly, Experian is the sole remaining defendant in this case.
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(2) violated 15 U.S.C. § 1681i by failing to perform a reasonable reinvestigation to verify the
accuracy of the information contained in her consumer reports (Count II). (ECF No. 1
¶¶ 203–223.) On April 30, 2025, Experian filed its Answer (ECF No. 21), in which it
preserved its right to assert as an affirmative defense the existence of a binding arbitration
agreement with Plaintiff. (Id. at 62.) Trans Union and Equifax also separately filed Answers,
(ECF Nos. 24, 27) before jointly stipulating with Ms. Rivas to dismissal with prejudice of all
claims against them, see (ECF Nos. 43, 45). This Court approved both stipulations by separate
Marginal Orders, (ECF Nos. 44, 46), and Experian is now the sole remaining Defendant in
this action.
Presently pending before this Court is Experian’s Motion to Compel Arbitration (ECF
No. 28) (“Motion to Compel Arbitration” or “Experian’s Motion”). Ms. Rivas has responded
in Opposition (ECF No. 33), and Experian has replied (ECF No. 34). Magistrate Judge
Coulson of this Court has granted Experian’s Motion to Stay Discovery (ECF No. 37) in this
matter pending resolution of the Motion to Compel Arbitration. (ECF No. 41). The parties’
submissions have been reviewed, and no hearing is necessary. See Loc. R. 105.6 (D. Md. 2025).
For the reasons that follow, Experian’s Motion to Compel Arbitration (ECF No. 28) is
GRANTED and this matter is STAYED pending arbitration.
BACKGROUND
Original Defendants are consumer reporting agencies that collect and maintain
information about American consumers, including their income, finances, credit histories,
address histories, and other personal information and identifiers. (ECF No. 1 ¶ 43.) They
obtain information from banks, credit unions, loan providers, and others connected to the
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credit reporting industry, and compile it into individual consumer credit files using an
algorithm formula that relies on each individual’s unique identifiers. (Id. ¶¶ 52, 64–65.) They
also sell consumers’ information in consumer reports furnished to third parties in the credit
reporting industry. (Id. ¶ 43–44.)
Experian is affiliated with ConsumerInfo.com, Inc. (“CIC”), “an Experian® company
(also known as Experian Consumer Services).” (ECF No. 28-1 at 3; ECF No. 28-2 at 9.) CIC
provides to consumers a credit monitoring service (“CreditWorks”) that can retrieve each
subscriber’s credit reports and credit scores from Experian if that subscriber has provided
prior written authorization. (ECF No. 28-1 at 6–7.) To sign up for CreditWorks, consumers
are required to (1) enter their personal information into a single webform, and (2) click the
“Create Your Account” button on that webform to complete enrollment.2 (ECF No. 28-2 at
2.) Above the “Create Your Account” button is the following bolded disclosure: “By clicking
‘Create Your Account’: I accept and agree to your Terms of Use Agreement, as well as
acknowledge receipt of your Privacy Policy.” (Id. at 7.) Within this bolded disclosure, “Terms
of Use Agreement” and “Privacy Policy” are set out from the surrounding text as blue
hyperlinks. (Id.) Additional bolded statements follow the disclosure and inform the subscriber
that (1) CIC will be authorized “to obtain [the subscriber’s] credit report and/or credit score(s)
on a recurring basis” for three enumerated reasons, and (2) the subscriber may withdraw this
authorization “at any time.” (Id.)
2 Experian’s Motion includes a screen capture of the webform portal containing the personal information
requested from each subscriber. See (ECF No. 28-2 at 7). The webform requires the subscriber to enter their
name, current address, and email address. (Id.) The webform also asks if the subscriber lived at the provided
address for six months or more and requests the “main reason” that the subscriber visited Experian. (Id.)
Finally, the webform asks the subscriber to create a password. (Id.)
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On or about March 28, 2024, Ms. Rivas received emails from American Express, Chase
Credit, and Discover Card about “new hard inquires” on her credit reports that decreased her
credit score. (ECF No. 1 ¶¶ 75–76, 134.) In response, she contacted Original Defendants to
freeze all of her credit reports and obtained copies of her credit reports from each Original
Defendant. (Id. ¶¶ 78, 85–86, 134–35, 170–71.) Ms. Rivas alleges that her credit file recovered
from Experian contained information about accounts, addresses, names, employers, and
account inquiries that did not belong to her. (Id. ¶¶ 87–94.) In June 2024, she mailed a dispute
letter to Experian containing a request that it reinvestigate the disputed information, correct
the inaccuracies, and send her a corrected copy of her credit report. (Id. ¶¶ 96–98.) Two
months later, Experian reported removing inaccurate personal information and accounts from
Ms. Rivas’s credit file. (Id. ¶¶ 111–12.) Ms. Rivas, however, alleges that Experian failed to
remove “any” of the disputed inquiries and therefore failed to conduct a reasonable
investigation into her March 2024 dispute or a reinvestigation into the accuracy of the
information in her credit file. (Id. ¶¶ 114–15.) She alleges that Experian’s “fail[ure] to unmix
[her] credit file from that of the other consumer” caused her “loss of credit;” “loss of ability
to purchase and benefit from her good credit rating;” labor and expenses related to her
attempts to correct her inaccurate credit reports; and “emotional distress” in violation of the
federal Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681i(a)(1)(A). (Id. ¶¶ 115–17.)
In December 2024, Ms. Rivas requested another copy of her credit file from Experian.
(Id. ¶ 118.) According to Ms. Rivas, this credit report contained “even more” inaccurate
information. (Id. ¶¶ 121, 122–28.) Since the December 2024 credit file contained some of the
same erroneous information, she argues that Experian either failed to send a dispute notice to
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the list of account furnishers3 or failed to delete the inaccurate information despite receipt of
the corrected information from the furnishers.4 (Id. ¶¶ 129–30, 88.) Ms. Rivas therefore
alleges that Experian violated 15 U.S.C. § 1681i(a)(1)(A) by “fail[ing] to conduct a reasonable
investigation” into the veracity of the disputed information, (id. ¶ 131), and violated § 1681e(b)
by “failing to establish or to follow reasonable procedures to assure maximum possible
accuracy” of Rivas’s credit information, (id. ¶ 133). Accordingly, she initiated this action on
March 12, 2025, by filing in this Court a two-Count Complaint alleging FCRA violations
against Original Defendants, including Experian.5 See generally (id.).
Experian filed its Answer (ECF No. 21) on April 30, 2025, denying the relevant
allegations and preserving the right to assert an affirmative defense based upon the existence
of a binding arbitration agreement between the parties. (Id. at 62.) On May 14, 2025, Experian
filed its Motion to Compel Arbitration (ECF No. 28), arguing that Ms. Rivas signed an
arbitration agreement when she enrolled in CreditWorks by completing the webform and
clicking “Create Your Account.” (ECF No. 28-1 at 5.) According to the Declaration of Dan
Smith (“Mr. Smith”), the Director of Product Operations at CIC, Ms. Rivas enrolled in
CreditWorks on March 28, 2024. (ECF No. 28-2 at 2.) Experian argues that, by enrolling,
Ms. Rivas agreed to the “Terms of Use Agreement” located in the disclosure statement above
the “Create Your Account” button. (Id. at 2–3; ECF No. 28-1 at 6.) The Terms of Use
3 Under the Fair Credit Reporting Act (“FCRA”), consumer reporting agencies are required to provide
notification of a consumer’s dispute “to any person who provided any item of information in dispute” with “all
relevant information regarding the dispute that the agency has received from the consumer[.]” 15 U.S.C. §
1681i(a)(2)(A).
4 The FCRA also requires consumer reporting agencies, “after any reinvestigation,” to “promptly delete” items
of information “found to be inaccurate or incomplete or [that] cannot be verified.” 15 U.S.C. § 1681i(a)(5)(A).
5 As noted above, Ms. Rivas stipulated to dismissal with prejudice of all claims against Original Defendants
Equifax and Trans Union, both of which have been terminated from this matter. See (ECF Nos. 44, 46).
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Agreement contains a heading—“Dispute Resolution by Binding Arbitration”—and a warning
to the reader that this arbitration agreement “affects your rights.” (ECF No. 28-2 at 14–15.)
In section (a), the Terms of Use Agreement states that “[CIC] and you agree to arbitrate
all disputes and claims between us that arise out of or relate to this Agreement, which includes
any Information you obtain through the Services or Websites[.]” (Id. at 15.) In section (c), it
further provides that “[a]ll issues are for the arbitrator to decide,” including arbitrability and
the scope and enforceability of the arbitration agreement. (Id. at 16.) Experian contends that
it can directly enforce arbitration as a party to the Terms of Use Agreement because it is an
affiliate of CIC.6 (ECF No. 28-1 at 5, 9–10.) Alternatively, Experian argues that it can enforce
arbitration as a third-party beneficiary of the agreement. (Id. at 5, 10–14.)
Ms. Rivas filed a Response in Opposition (ECF No. 33), in which she argues that
Experian has failed to carry its burden of proving the formation of a binding arbitration
agreement because Mr. Smith’s Declaration is inadmissible as evidence. (Id. at 7–16.)
According to Ms. Rivas, Mr. Smith could not possess personal knowledge of the documents
that she reviewed or the process that she used to register and request credit files. (Id. at 8–16.)
Alternatively, she argues that Mr. Smith’s Declaration cannot establish that she actually
assented to the Agreement even if Experian could prove that she signed up with CIC. (Id. at
17–20.) She asks this Court to direct the parties to engage in further discovery over the
formation of the arbitration agreement and to determine whether Experian possesses
documentary evidence of her assent to arbitration. (Id. at 21.) Pursuant to Experian’s Motion
6 In the Terms of Use Agreement, CIC is referred to by the name under which it does business, Experian
Consumer Service (“ECS”). (ECF No. 28-1 at 4; ECF No. 28-2 at 2 ¶ 1.)
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to Stay Discovery (ECF No. 37) filed June 27, 2025, this Court stayed discovery pending
resolution of Experian’s Motion to Compel Arbitration. (ECF No. 41). This matter is now
ripe for review.
STANDARD OF REVIEW
As Judge Chuang of this Court has previously explained, “Judges in this District have
recognized that ‘motions to compel arbitration exist in the netherworld between a motion to
dismiss and a motion for summary judgment.’” Cherdak v. ACT, Inc., 437 F. Supp. 3d 442, 454
(D. Md. 2020) (quoting Caire v. Conifer Value Based Care, LLC, 982 F. Supp. 2d 582, 589 (D.
Md. 2013)). The U.S. Court of Appeals for the Fourth Circuit has held that the movant’s
burden in a motion to compel arbitration is “akin to the burden on summary judgment.”
Galloway v. Santander USA, Inc., 819 F.3d 79, 85 n.3 (4th Cir. 2016) (quoting Chorley Enters. v.
Dickey’s Barbecue Rests., 807 F.3d 553, 564 (4th Cir. 2015)). Accordingly, a motion to compel
arbitration must be granted where the movant demonstrates “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). A material fact is one that “might affect the outcome of the suit under the
governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue of a material fact
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
When considering a motion for summary judgment, a court’s function is limited to
determining whether sufficient evidence exists on a claimed factual dispute to warrant
submission of the matter for resolution at trial. Id. at 249. Trial courts in the Fourth Circuit
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have an “affirmative obligation . . . to prevent factually unsupported claims and defenses from
proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003)
(quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993)). This Court must consider the
facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007); Judd, 718 F.3d at 312. “The plaintiff is entitled to have the
credibility of all his evidence presumed.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citing
Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990), cert. denied, 498 U.S. 1109 (1991)).
ANALYSIS
The Federal Arbitration Act (“FAA”) governs disputes over whether to compel
arbitration. 9 U.S.C. §§ 1–16. Under the FAA:
A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform the whole
or any part thereof, or an agreement in writing to submit to arbitration an
existing controversy arising out of such a contract, transaction, or refusal, shall
be valid, irrevocable, and enforceable, save upon such grounds as exist at law or
in equity for the revocation of any contract or as otherwise provided in chapter
4.
Id. § 2. The FAA reflects “both a ‘liberal federal policy favoring arbitration’ and the
‘fundamental principle that arbitration is a matter of contract.’” AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339 (2011) (first quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983); and then quoting Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63,
67 (2010)).
As such, a federal court must compel arbitration and stay “any suit or proceeding”
where: (1) a dispute exists between the parties; (2) there is a written agreement with an
arbitration provision claimed to cover the dispute; (3) the transaction involves commerce; and
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(4) one party is refusing or neglecting to arbitrate. Whiteside v. Teltech Corp., 940 F.2d 99, 102
(4th Cir. 1991); see also Adkins v. Lab. Ready, Inc., 303 F.3d 496, 500 (4th Cir. 2002) (“[A] district
court therefore has no choice but to grant a motion to compel arbitration where a valid
arbitration agreement exists and the issues in a case fall within its purview.”); 9 U.S.C. § 3
(obligating court to stay “any suit or proceeding” governed by arbitration “until such
arbitration has been had in accordance with the terms of the agreement”); Smith v. Spizzirri,
601 U.S. 472, 475–76 (2024) (requiring stay where arbitration provision governs). Even so,
“courts will not blindly apply the presumption in favor of arbitrability[.]” Peabody Holding Co.,
LLC v. United Mine Workers of Am., 665 F.3d 96, 104 (4th Cir. 2012). Ultimately, “the party
seeking to compel arbitration . . . ‘bears the burden of establishing the existence of a binding
contract to arbitrate.’” Dhruva v. CuriosityStream, Inc., 131 F.4th 146, 151 (4th Cir. 2025)
(quoting Marshall v. Georgetown Mem’l Hosp., 112 F.4th 211, 218 (4th Cir. 2024)).
I. A Valid Arbitration Agreement Exists Between Ms. Rivas and Experian
To meet its burden and compel arbitration in this case, Experian must show “the
existence of a binding contract to submit disputes to arbitration[,]” which, in turn, requires
proof that Ms. Rivas “agreed to the terms of use, i.e., that [s]he enrolled in CreditWorks, and
the content of those terms of use when [s]he did so.” Austin v. Experian Info. Sols., Inc., 148
F.4th 194, 204 (4th Cir. 2025). To support its assertion that registration for CreditWorks
required Ms. Rivas to agree to the Terms of Use Agreement, Experian provides the
Declaration of Mr. Dan Smith (“Mr. Smith”), CIC’s Director of Product Operations. See (ECF
No. 28-1 at 10; ECF No. 28-2). In Opposition (ECF No. 33), Ms. Rivas raises two arguments.
First, she contends that Experian has not met its evidentiary burden to prove the existence of
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a binding arbitration agreement because Mr. Smith’s Declaration is inadmissible and
insufficient evidence of her assent. (Id. at 8–16.) Thus, she asserts that the parties require
additional discovery regarding any agreement to arbitrate. (Id. at 21–23.) Second, and
alternatively, she argues that even assuming such evidence is admissible, she did not assent to
arbitration via any purported clickwrap agreement when she signed up for CreditWorks.7 (Id.
at 17–20.) The Court addresses the admissibility of Mr. Smith’s Declaration before turning to
the parties’ agreement to arbitrate.
A. Mr. Smith’s Declaration is Admissible Evidence
As explained above, “[a] party’s burden to show the existence of an agreement to
arbitrate is ‘akin to the burden on summary judgment’” and the party seeking to invoke
arbitration bears the burden to establish the existence of a binding arbitration agreement.
Austin, 148 F.4th at 202 (quoting Chorley Enters., 807 F.3d at 564). The requirements for
affidavits under Federal Rule of Civil Procedure 56, which governs summary judgment, thus
apply to the movant’s burden in a motion to compel arbitration. Id. Under Federal Rule of
Civil Procedure 56(c), “[a] declaration ‘used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible in evidence, and show that the
7 Ms. Rivas does not appear to dispute that Experian may enforce the arbitration agreement as a party to the
Terms of Use Agreement. See generally (ECF No. 33). Regardless, the Terms of Use Agreement between
Plaintiff and ECS (doing business as CIC) defines ECS to include its “affiliates, (including, but not limited to,
Experian Information Solutions, Inc.) . . . .” (ECF No. 28-2 at 9; ECF No. 28-1 Ex. 2.) Accordingly, Experian
may enforce the arbitration agreement as a party to the contract. See, e.g., Meeks v. Experian Info. Sols., Inc., 2022
WL 17958634, at *2 (9th Cir. Dec. 27, 2022) (concluding Experian may enforce arbitration agreement with
identical language as a party to the agreement despite not being a signatory to the agreement); Levy v. Credit Plus,
Inc., 2023 WL 2644352, at *6 (S.D.N.Y. Mar. 27, 2023) (concluding named defendant was party to arbitration
agreement because agreement defined “ECS” to include its affiliates and defendant was one such affiliate);
Alvarez v. Experian Info. Sols., Inc., 661 F. Supp. 3d 18, 26–27 (E.D.N.Y. 2023) (deeming Experian party to
arbitration agreement where agreement defined ECS to include affiliates, Experian was such an affiliate, and
agreement mentioned Experian by name multiple times).
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affiant or declarant is competent to testify on the matters stated.’” Id. at 202–203 (quoting
FED. R. CIV. P. 56(c)(4)). In this case, Experian seeks to use Mr. Smith’s Declaration
describing the CreditWorks registration process to prove that Ms. Rivas must have assented
to the Terms of Use Agreement, including its arbitration agreement, when she registered for
CreditWorks.
Ms. Rivas argues, however, that Mr. Smith’s Declaration is inadmissible because it is
not based on personal knowledge. See generally (ECF No. 33 at 9–16). Specifically, she
contends that Mr. Smith “cannot validate what appeared on [her] unknown electronic device
on March, 28, 2024,” nor does he “establish[] that he has ever viewed any consumer visiting
the unknown website at any point[.]” (ECF No. 33 at 10, 11.) She further argues that, despite
Mr. Smith’s position as “Director of Product Operations for [CIC],” (ECF No. 28-2 at 2), he
cannot claim personal knowledge based on “his review of . . . unknown and unnamed
documents” because he has not adequately referenced or produced substantiating documents,
(ECF No. 33 at 10). Thus, she contends that Mr. Smith’s Declaration lacks tangible evidence
such as internal records or an audit or activity log that would establish the IP address of the
device that she allegedly used to sign up for CreditWorks on March 28, 2024.8 (Id. at 10–11.)
Personal knowledge requires that the affiant make an affirmative showing of specific
facts that are not based exclusively upon information and belief. See Burwick v. Pilkerton, 700
F. App’x 214, 216 (4th Cir. 2017) (quoting Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir.
2002) (collecting cases)). Federal courts presume that “ordinarily, officers would have
8 Based on Experian’s failure to produce such documents, Ms. Rivas suggests that they “do not exist.” (ECF
No. 33 at 14.)
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personal knowledge of the acts of their corporations.” Austin, 148 F.4th at 203 (quoting
Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1342 (4th Cir. 1992) (en banc)).
Moreover, an affiant’s personal knowledge on behalf of his employer may be based on his
review of business files and on his day-to-day work responsibilities. See id. at 204; Melo v.
Zumper, Inc., 439 F. Supp. 3d 683, 693 (E.D. Va. 2020); see also Nader v. Blair, 549 F.3d 953, 963
(4th Cir. 2008) (affidavit based on personal knowledge where, although affiant “did not
personally take part in or witness the creation of the documents,” she testified as a “custodian
of the records” who was “familiar with [her employer’s] record-keeping practices”). An
opposing party may overcome the presumption of a corporate officer’s personal knowledge
where she presents facts that disprove such knowledge. See Catawba Indian Tribe, 978 F.2d at
1342 (assuming corporate affiants have personal knowledge where opposing party failed to
present evidence that the affiants lacked personal knowledge); Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 135 n.9 (4th Cir. 2002) (same); In re Apex Express Corp., 190 F.3d 624, 635 (4th Cir.
1999) (same).
As a corporate declarant in this case, Mr. Smith is entitled to the “presumption” that
he has “personal knowledge” of CIC’s acts. Austin, 148 F.4th at 203 (quoting Catawba Indian
Tribe, 978 F.2d at 1342). Despite this presumption, he must still allege facts that are based on
his knowledge and experience, not merely “information and belief.” Pace, 283 F.3d at 1278.
The Fourth Circuit and district courts within this circuit have recognized that testimony based
on “day-to-day work responsibilities” and “the review of pertinent documents maintained as
business records” can constitute personal knowledge. Austin, 148 F.4th at 204 (internal
quotation marks omitted); see also Wells v. Trans Union, LLC, 2025 WL 475846, at *3–4 (E.D.
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Va. Feb. 12, 2025) (finding personal knowledge because affiant’s description of the
“institutional processes” for subscription are based on his professional experience and review
of relevant documents, neither of which “rid him of personal knowledge of the documents’
contents” or of “Plaintiff’s particular engagement”); Jenkins v. Experian Info. Sols., Inc., 2024 WL
4100258, at *2 (E.D. Va. Sep. 6, 2024) (finding personal knowledge because affiant’s testimony
was based on his experience and job responsibilities as “Director of Product Operations for
[CIC]”). As explained below, Mr. Smith’s declaration satisfies Experian’s evidentiary burden
in this case.
Mr. Smith frames his declaration around the “knowledge [he has] acquired in the course
and scope of [his] job responsibilities” as the “Director of Product Operations,” especially
including his review of “internal records that store CreditWorks account information.” (ECF
No. 28-2 at 1–2.) He states that (1) Ms. Rivas “would not have been able to successfully enroll
in CreditWorks unless she clicked [the ‘Create Your Account’] button;” (2) by “click[ing] the
‘Create Your Account’ button, [she] accept[ed] and agree[d] to the Terms of Use Agreement,”
including its arbitration provision; and (3) she was preliminarily required to “enter[] her
personal information” into the webform prior to her enrollment in CreditWorks. (ECF No.
28-2 at 3–4); see also (ECF No. 28-2 Ex. 1 (asking for the subscriber’s name, current street
address, and email address)). Moreover, Mr. Smith explains that, because he is the “Director
of Product Operations for [CIC],” he possesses “familiarity with the CreditWorks enrollment
process and [CIC]’s databases that store consumer account information” and has the ability
to retrieve this information. (ECF No. 28-2 at 1.) By searching the database using Ms. Rivas’s
“personally identifiable information”—the information that Mr. Smith avers she submitted
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when first enrolling in CreditWorks—he can retrieve her membership details, including “the
date and time of enrollment, and the version of the Terms of Use [she] agreed to.” (Id.) Based
on his review of “CIC’s membership enrollment data,” Mr. Smith specifically avers that Ms.
Rivas enrolled in CreditWorks on March 28, 2024, and cancelled her CreditWorks membership
on April 10, 2024. (Id. at 2, 3 n.1.)
Mr. Smith’s description of the CreditWorks enrollment process is rooted in his
professional experience and entitled to a presumption of personal knowledge. See George v.
Experian Info. Sols., Civ. No. LKG-23-2303, 2024 U.S. Dist. LEXIS 105824, at *20–21 (D. Md.
June 14, 2024) (presuming Mr. Smith to have personal knowledge of “[t]he process for creating
a CreditWorks account” in identical circumstances because he is “personally familiar with the
process for establishing a CreditWorks account via the CIC website”); Bryant, 288 F.3d at 135
n.9 (finding personal knowledge where affidavits contained sufficient information and “a
description of the affiants’ job titles and duties”). Although Mr. Smith testifies to the ordinary
enrollment process encountered by all CreditWorks subscribers, his assertions about what
“‘would have appeared’ on a user’s screen” still satisfy the personal knowledge requirement.
Melo, 439 F. Supp. 3d at 694; see also George, 2024 U.S. Dist. LEXIS 105824, at *22–24 (finding
sufficient evidence based on testimony that the online form containing the arbitration
agreement was the only way to enroll in credit reporting services); Wells, 2025 WL 475846, at
*4–6 (finding sufficient evidence based on testimony that “all new CreditWorks members”
used the same subscription process and that relied upon “external documents” of consumers’
information (emphasis in original)); Cordas v. Uber Techs., Inc., 228 F. Supp. 3d 985, 988–89
(N.D. Cal. 2017) (finding personal knowledge where affiant testified that the plaintiff “would
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have been presented” with a disclaimer about the Terms & Conditions and Privacy Policy
because “no account could be created” unless the plaintiff completed the same procedures as
all other users).
Finally, Mr. Smith’s declaration also references sufficient facts that identify Ms. Rivas.
All subscribers must complete the same procedure, and Mr. Smith states that Ms. Rivas
“entered her personal information . . . [and] click[ed] the ‘Create Your Account’ button the
webform,” enrolling her in CreditWorks and creating an internal record with CIC
corresponding with her identifiable information. (ECF No. 28-2 at 1–2.) Mr. Smith is not
required to state more particular evidence about Ms. Rivas’s enrollment process, nor is he
required to personally supervise what appeared on her screen. See Melo, 439 F. Supp. 3d at 694
(finding sufficient evidence based on testimony relying upon defendant’s “internal records of
all account information and creation,” including browser and device type, and “screenshots
depicting what Plaintiff would have seen”); George, 2024 U.S. Dist. LEXIS 105824, at *22–24;
Wells, 2025 WL 475846, at *4–6; see also Meyer v. Uber Techs., Inc., 868 F.3d 66, 70–72 (2d Cir.
2017) (finding sufficient evidence based on screenshots of the registration screen and
testimony that defendant maintained consumer account records).
While Ms. Rivas suggests that Mr. Smith must include more specific evidence such as
the IP address of the device used to enroll, such evidence is not required when defendants
supply sufficient alternative evidence, including a summary of application information with an
explanation of how that information was compiled. See Castillo v. Cava Mezze Grill, LLC, 2018
U.S. Dist. LEXIS 222887, at *8–9 (C.D. Cal. Dec. 21, 2018) (evidence of plaintiff’s IP address
is unnecessary when defendant provides electronically signed employment forms that correlate
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with asserted timestamps). In circumstances nearly identical to this case, courts have rejected
plaintiffs’ assertions of a genuine factual dispute based on the assertion that a corporate
declarant must validate what appeared on the plaintiff’s specific electronic device during
enrollment. See, e.g., Wells, 2025 WL 475846, at *4 (plaintiff fails to dispute “that he became a
CreditWorks member” and “that he became a CreditWorks member in the manner that Mr. Smith
describes” (emphasis added)); Jenkins, 2024 WL 4100258, at *3 (plaintiff’s argument fails to
“unequivocal[ly] den[y] . . . that the arbitration agreement exists”); Williams v. Experian Info.
Sols. Inc., 2024 U.S. Dist. LEXIS 148445, at *27–28 (D. Ariz. Aug. 20, 2024) (plaintiff’s
argument “imposes a far greater burden for personal knowledge than what is required”); Buelna
v. Experian Info. Sol., Inc., 2024 U.S. Dist. LEXIS 150934, at *7 (N.D. Ind. Aug. 20, 2024) (Mr.
Smith does not have to be “in the room with [Plaintiff] when she enrolled” because his general
“knowledge of the enrollment process” is sufficient). In this case, therefore, Mr. Smith’s
personal knowledge of the required enrollment process for all users is sufficient, and he is not
required to have personal knowledge of what appeared on Ms. Rivas’s specific device during
her enrollment.
Ms. Rivas also asserts that Experian must “provide the documents explicitly relied upon
by [Mr.] Smith in obtaining his ‘personal knowledge’ of what allegedly occurred” during the
enrollment process. (ECF No. 33 at 13.) To support this assertion, she cites a recently
reversed decision from the Eastern District of Virginia that required a corporate declarant to
specifically “identify the documents on which he based his asserted personal knowledge.”
Austin v. Equifax Info. Servs., LLC, 2023 U.S. Dist. LEXIS 223258, at *12 (E.D. Va. Dec. 13,
2023), rev’d, 148 F.4th 194 (4th Cir. 2025). In reversing that decision for abuse of discretion,
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however, the Fourth Circuit stated that the affiant possessed personal knowledge from his
“day-to-day working responsibilities” and “review of pertinent documents” such that he was
capable of “describ[ing] the appearance of the CreditWorks enrollment page, [and] what a user
does on that page[.]” Austin, 148 F.4th at 204. The Fourth Circuit did not require additional
technical documents to be submitted because the affidavit adequately demonstrated that
“[Plaintiff] agreed to the terms of use . . . and [identified] the content of those terms of use
when he did so.”9 Id.
As Director of Product Operations at CIC, Mr. Smith may have personal knowledge
without producing the exact documents he reviewed or observing exactly “what appeared on
[the plaintiff’s] unknown electronic device.” (ECF No. 33 at 10.) He is “presumed to have
personal knowledge of matters related to the CIC website,” George, 2024 U.S. Dist. LEXIS
105824, at *26, holds a professional title that requires his familiarity with the CreditWorks
enrollment process, and alleges sufficient facts to identify Ms. Rivas and the only available
enrollment process. See Austin, 148 F.4th at 204–205. Having determined that Mr. Smith’s
Declaration constitutes admissible evidence, the Court turns to whether Experian has met its
burden to show the existence of a valid arbitration agreement.
9 Ms. Rivas also references decisions from the Southern District of Georgia and from the Middle District of
Florida, which the U.S. Court of Appeals for the Eleventh Circuit reversed. The Eleventh Circuit concluded
that, where the plaintiff did “not deny enrolling, . . . dispute the interface’s description, . . . [or] claim that the
terms were concealed or misleading,” an unrebutted declaration based on “internal business records,” a
description of the enrollment process, and screenshots of enrollment pages was sufficient to establish an
agreement to arbitrate. Lamonaco v. Experian Info. Sols., Inc., 141 F.4th 1343, 1348 (11th Cir. 2025); see Lamonaco
v. Experian Info. Sols., Inc., 2024 U.S. Dist. LEXIS 71551, at *11 (M.D. Fla. Apr. 19, 2024), rev’d, 141 F.4th 1343
(11th Cir. 2025); see also Newton v. Experian Info. Sols., Inc., 2024 WL 3451895 (S.D. Ga. July 18, 2024), rev’d 2025
WL 2102084 (11th Cir. July 28, 2025).
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B. There exists a valid agreement to arbitrate.
Experian has sufficiently established the existence of a valid arbitration agreement with
Ms. Rivas. “The presumption favoring arbitration does not apply to th[e] preliminary question
of [an] Arbitration Agreement’s validity.” Coady v. Nationwide Motor Sales Corp., 32 F.4th 288,
291 (4th Cir. 2022). Instead, state contract law governs the formation of arbitration
agreements. Hill v. Peoplesoft USA, Inc., 412 F.3d 540, 543 (4th Cir. 2005); see also Johnson v.
Cont’l Fin. Co., LLC, 131 F.4th 169, 178 (4th Cir. 2025) (“Whether an arbitration agreement
was properly formed is ‘a question of ordinary state contract law principles.’” (quoting Rowland
v. Sandy Morris Fin’l & Est. Planning Servs., LLC, 993 F.3d 253, 258 (4th Cir. 2021))). An
agreement to arbitrate disputes is enforceable under Maryland law if it is a valid contract. Hill,
412 F.3d at 543; Cheek v. United Healthcare of Mid-Atlantic, Inc., 835 A.2d 656, 660–62 (Md. 2003).
“Under Maryland law, the formation of a contract requires mutual assent (offer and
acceptance), an agreement definite in its terms, and sufficient consideration.” Ford v. Genesis
Fin. Sols., Inc., 726 F. Supp. 3d 441, 450 (D. Md. 2024) aff’d 2025 WL 1540933 (4th Cir. May
30, 2025) (internal quotation marks omitted) (quoting Spaulding v. Wells Fargo Bank, N.A., 714
F.3d 769, 777 (4th Cir. 2013)).
In this case, Ms. Rivas argues that, even if this Court accepts Mr. Smith’s Declaration,
Experian still fails to establish mutual assent to the contract. (ECF No. 33 at 17.) According
to Ms. Rivas, the CreditWorks web portal was “deliberately misleading” because it did not
require the consumer to view the agreement or check an “I agree” box even though the Terms
of Use Agreement was hyperlinked. (Id. at 18–19.) Moreover, she argues that the agreement
was confusing because, below the Terms of Use Agreement, it contained fine print that a
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consumer would reasonably conclude is a summary of terms. (Id. at 19–20.) She asserts that
Experian failed to provide adequate notice of contractual terms and cannot demonstrate
mutual assent because the fine print summary omitted mention of an arbitration agreement.
(Id. at 20.)
The “fundamental principles of contract law” still apply to online contracts even
though “the digital age has changed the nature of contract formation.” Dhruva, 131 F.4th at
151 (quoting Marshall, v. Georgetown Mem’l Hosp., 112 F.4th 211, 218 (4th Cir. 2024)). As such,
the party asserting the existence of a contract must demonstrate that the other party “(1) had
‘reasonable notice of an offer’ to enter into the contract[;] and (2) ‘manifested’ assent to it.”
Naimoli v. Pro-Football, Inc., 120 F.4th 380, 389 (4th Cir. 2024) (quoting Marshall, 112 F.4th at
218). Nevertheless, courts traditionally evaluate online contracts by sorting them into
categories depending on whether they are browsewrap agreements or clickwrap agreements.
“A clickwrap agreement is a dialogue box that appears on a webpage and requires that a user
agree to certain terms before allowing the user to continue to use the website.” Hosseini v.
Upstart Network, Inc., 2020 WL 573126, at *4 (E.D. Va. Feb. 5, 2020). Clickwrap agreements
require a customer to affirmatively click a box on the website acknowledging receipt of and
assent to the contract terms before he or she is allowed to proceed using the website. CoStar
Realty Info., Inc. v. Field, 612 F. Supp. 2d 660, 669 (D. Md. 2009)). This Court has upheld a
clickwrap agreement so long as it reasonably communicates the existence of the contract
terms. Lyles v. Chegg, Inc., Civ. No. RDB-19-3235, 2020 WL 1985043, at *3 (D. Md. Apr. 27,
2020) (citing Meyer, 868 F.3d at 76 (collecting cases)). A “[m]odified or hybrid clickwrap
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agreement[]” exists “where the user must affirmatively manifest assent to agreements that are
provided via hyperlink . . . .” Hosseini, 2020 WL 573126, at *4.
“A clickwrap agreement differs from a ‘browsewrap agreement,’ which does not
require a user to click a box or button indicating that he or she agrees to certain terms to use
the website, but instead attempts to bind the user to hyperlinked terms simply through using
the website.” Gordon v. Zeroed-In Tech., LLC, Civ. No. BAH-23-3284, 2025 WL 941365, at *9
(quoting Am. Eagle Motors, LLC v. Copart of Conn., Inc., 2023 WL 123503, at *3 (E.D. Va. Jan.
5, 2023) (citation omitted)). In this case, the CreditWorks enrollment process constitutes a
modified or hybrid clickwrap agreement that requires the subscriber to indicate assent to the
linked Terms of Use by clicking the “Create Your Account” button. See (ECF No. 28-2 at 1–
4, Ex. 1). Accordingly, the parties in this case formed an agreement to arbitrate if the Terms
of Use clickwrap agreement reasonably communicated the existence of the contract’s terms.
See, e.g., Lyles, 2020 WL 1985043, at *3.
Mr. Smith’s Declaration and the CreditWorks enrollment page provided by Experian
establish that Ms. Rivas had reasonable notice of the Terms of Use Agreement containing the
arbitration agreement. See generally (ECF No. 28-2). As explained above, CIC’s web portal
provided a warning to users in bold text that “By clicking ‘Create Your Account’: I accept and
agree to your Terms of Use Agreement, as well as acknowledge receipt of you Privacy Policy.”
(Id. Ex. 2.) The language, “Terms of Use Agreement,” is set off from the rest of the text in a
blue hyperlink that opens the full agreement if clicked. (Id.) Below this warning, the web
portal provides in bold text additional information that is significant for the subscriber to
know when using CIC’s services. (Id.) The web portal specifically informs the subscriber that,
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by creating an account, the subscriber authorizes CIC to provide a credit report, notify the
subscriber of related products and services, and alert the subscriber about “credit
opportunities and advertised credit offers.” (Id.) The Fourth Circuit, in reviewing the
CreditWorks web portal, determined that such bold text, blue hyperlink, and uncluttered
background would all place a reasonably prudent user on notice of CreditWorks’s contractual
offer. Austin, 148 F.4th at 206–207.10
Mr. Smith’s Declaration also establishes mutual assent between the parties to the
arbitration agreement. Although CIC’s web portal presented a “hybrid clickwrap,” a
“clickwrap” agreement may be enforceable even where it does not demand a user’s up-front
assent to terms of use that appear automatically without a hyperlink. See id. at 208. Rather, a
modified or hybrid clickwrap agreement may be enforceable where it sufficiently
communicates that “completing the subscription process . . . constitute[s] assent to the
proposed contract.” Dhruva, 131 F.4th at 153. In this case, CIC’s website “provides clear and
reasonably conspicuous notice” of contract terms that were accessible to the user by scrolling
down or clicking a hyperlink, and the user accepts those terms by completing enrollment and
pressing “Create Your Account.” Id. Experian is not required to provide an explicit “I accept”
or “I agree” button. See id. at 155 (quoting Marshall, 112 F.4th at 222). It is only required to
place the user on notice that “the act of clicking will constitute assent to the terms and
10 Although the Fourth Circuit in Austin evaluated mutual assent under North Carolina law, it analyzed notice
under a clickwrap agreement by citing caselaw reviewing decisions discussing Maryland law. See, e.g., Austin,
148 F.4th at 206 (citing Dhruva, 131 F.4th at 152). Moreover, this Court has recognized some similarities
between North Carolina’s law of mutual assent and Maryland’s law of mutual assent. See, e.g., MJ Enter. Holdings,
Inc. v. Spiffy Franchising, LLC, Civ. No. RDB-24-3194, 2025 WL 2163052, at *8 (D. Md. July 30, 2025) (“Under
Maryland law, mutual assent requires ‘(1) intent to be bound, and (2) definiteness of terms.’ Quite similarly,
North Carolina provides that mutual assent exists where the parties ‘manifest intent to be bound’ such that
‘there has been a meeting of the minds as to all essential terms of the agreement.’” (internal citations omitted)).
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conditions of an agreement” that the user possesses knowledge of and is able to access. Id.
(quoting Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 857 (9th Cir. 2022)). Thus, Ms.
Rivas manifested assent to the arbitration agreement with Experian.
Finally, Ms. Rivas does not dispute that she made an account with CIC to request a
credit report through Experian’s service. As Judge Griggsby on this Court has previously
explained, “Plaintiff’s lack of recollection” about the CreditWorks Terms of Use Agreement,
“without more, is not sufficient to rebut the evidence” demonstrating Plaintiff’s assent to the
arbitration agreement through the enrollment process. George, 2024 U.S. Dist. LEXIS 105824,
at *3; see also Jenkins, 2024 WL 4100258, at *3 (finding valid arbitration agreement because
plaintiff failed to “‘unequivocally’ den[y] that the arbitration agreement exists,” thereby failing
to establish a genuine dispute of material fact); Roach v. Navient Sols., Inc., 165 F. Supp. 3d 343,
348 (D. Md. 2015) (on summary judgment standard, parties cannot rely on “mere allegations
or denials” but must “set out specific facts showing a genuine dispute for trial” (citing FED.
R. CIV. P. 56(c)(1))). In this case, Ms. Rivas asserts in her declaration that, if she saw “any . . .
indication” “that [she] agreed to waive [her] right to a jury trial with Experian,” she “would
not have signed up for an online Experian account.” (ECF No. 33-2 at 1.) Ms. Rivas claims
that she was “unaware” that, “by signing up for such an account,” she “agreed to arbitrate any
claims against Experian.” (Id.) These statements implicitly acknowledge that Ms. Rivas made
an Experian account.
Nor does she dispute that the CreditWorks enrollment process detailed by Mr. Smith
is, in fact, the process that she used to make her account. See (ECF No. 33 at 10 (Mr. Smith
“does not and cannot validate what appeared on Plaintiff’s unknown electronic device on
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March 28, 2024, when Plaintiff allegedly signed up for a CreditWorks account.”); id. at 11–12
(“[A]ll of Smith’s statements . . . boil down to [his] speculations about what Plaintiff must have
done.”)). While Ms. Rivas asserts that she has “never heard of CreditWorks” and never
assented to an arbitration agreement “[t]o the best of [her] knowledge,” her statements do not
provide facts that rebut Mr. Smith’s description of the CreditWorks enrollment process. (ECF
No. 33-2 at 1); see George, 2024 U.S. Dist. LEXIS 105824, at *3; Jenkins, 2024 WL 4100258, at
*3.
By setting forth sufficient facts to demonstrate that Ms. Rivas created an account with
CIC, enrolled in CreditWorks, and agreed to a Terms of Use Agreement containing an
arbitration provision, Experian has met its burden to demonstrate the existence of a valid
arbitration agreement between the parties. In Opposition, Ms. Rivas presents only a general
argument that she did not mutually assent to the Terms of Use Agreement during Experian’s
enrollment process. See (ECF No. 33 at 17–21). She provides no evidence denying the
existence of an arbitration agreement or detailing an alternative enrollment process different
from that described by Mr. Smith. Accordingly, she has not established a genuine dispute of
material fact, and this Court must grant Experian’s Motion to Compel Arbitration. See
Galloway v. Santander USA, Inc., 819 F.3d 79, 85 (4th Cir. 2016); Adkins v. Labor Ready, Inc., 303
F.3d 496, 500 (4th Cir. 2002).
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CONCLUSION
For the foregoing reasons, Defendant’s Motion to Compel Arbitration (ECF No. 28)
is GRANTED.
A separate Order follows.
Date: January 15, 2026
Richard D. Bennett
United States Senior District Judge
/s/
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