Hernandez v. Experian Information Solutions Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Edward T. Hernandez,
Plaintiff,
v.
Experian Information Solutions,
Incorporated,
Defendant.
No. CV-25-00449-TUC-SHR (LCK)
REPORT AND
RECOMMENDATION
Defendant Experian Information Solutions, Inc. has filed a Motion to Compel
Arbitration. (Doc. 26.) Plaintiff Hernandez responded, and Defendant replied. (Docs. 32,
34.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate
Judge Kimmins for Report and Recommendation. The Magistrate Judge recommends the
District Court, after its independent review of the record, grant the motion.
BACKGROUND
Plaintiff filed this case in August 2025 alleging that Defendant violated the Fair
Credit Reporting Act. (Doc. 1.) In its Answer, Defendant pleaded a right to arbitration.
(Doc. 13 at 44.) The Court set a December 1, 2025, deadline for Defendant to file a motion
to compel arbitration. (Doc. 23 at 1.) Defendant filed its Motion to Compel Arbitration on
December 2, 2025. (Doc. 26.) Simultaneously, Defendant filed a Motion to Stay Discovery
pending resolution of the Motion to Compel Arbitration, which the Court granted. (Docs.
27, 35.)
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Defendant's motion is supported by a declaration from Dan Smith, the Senior
Director of Business Governance for ConsumerInfo.com, Inc. (CIC). (Doc. 26 at 17 ¶ 1.)
Smith explained that CIC also does business as Experian Consumer Services (ECS), and
that CIC/ECS is an affiliate of Defendant Experian Information Solutions, Inc. (Id. at 17-
18, 20 ¶¶ 1, 2, 6.) Smith declared:
My duties at CIC include supporting the consumer enrollment process into
CreditWorks and related services. These duties require that I be familiar with,
among other things, how consumers enroll, the forms they must complete to
enroll, as well as the Terms of Use governing such services. My duties also
require that I am familiar with Experian's electronic databases that store
consumer enrollment information, including the webpages a consumer
would have encountered to complete their enrollment into CreditWorks, the
personally identifiable information entered when enrolling, and date and time
of the consumer's acceptance of the Terms of Use. I am likewise familiar
with Experian's internal records that document consumers' ongoing use of
their CreditWorks account, including when a consumer logs into their
account or changes their account information, as well as any time a consumer
receives an email or alert through their Creditworks membership. Based on
my familiarity with the CreditWorks enrollment process and Experian's
databases that store consumer account information, I retrieved Plaintiff's
CreditWorks membership information upon receipt of that consumer's
personally identifiable information. . . . The facts stated in this Declaration
are of my own personal knowledge, including knowledge acquired in the
course and scope of my job responsibilities and through the review of
pertinent documents maintained as business records by CIC in the course and
scope of CIC's business, including Experian's internal records that store
CreditWorks account information.
(Id. at 17-18 ¶ 1.)
Based on his review of company data, Smith stated that Plaintiff successfully
enrolled in CreditWorks on September 3, 2019. (Id. at 18 ¶ 3.) For Plaintiff to complete
enrollment, Smith explained that he would have needed to complete two webforms. (Id.)
First, Plaintiff had to submit his personally identifying information, name, address, phone
number, and email, then click "Submit and Continue." (Id.; Doc. 26 at 23 (Smith Decl., Ex.
1).) Then a second webform would have appeared asking for his social security number,
date of birth, a username, and password. (Doc. 26 at 19 ¶ 4; Doc. 26 at 25 (Smith Decl.,
Ex. 2).) The form provides, "By clicking 'Submit Secure Order': I accept and agree to your
Terms of Use Agreement, as well as acknowledging receipt of your Privacy Policy and Ad
Targeting Policy." (Doc. 26 at 19 ¶ 4; Doc. 26 at 25 (Smith Decl., Ex. 2).) Smith explained
that the phrase "Terms of Use Agreement" was provided in blue and was a hyperlink that,
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if clicked, would have opened a separate window containing the full terms of the
Agreement. (Doc. 26 at 19 ¶ 4.) After Plaintiff filled out the second form, to complete his
enrollment, he would have clicked on the button at the bottom of the form that said,
"Submit Secure Order." (Id.; Doc. 26 at 25 (Smith Decl., Ex. 2).) Plaintiff must have
clicked that button to enroll in CreditWorks.
The Terms of Use in effect when Plaintiff enrolled in CreditWorks contained an
Arbitration Agreement. (Doc. 26 at 19-20 ¶¶ 5-6; Doc. 26 at 29 (Smith Decl., Ex. 3).) It
also had a section labeled Amendments, which stated that the Terms of Use might be
updated periodically. (Doc. 26 at 28 (Smith Decl., Ex. 3).) It provided that: “Each time you
order, access or use any of the Services or Websites, you signify your acceptance and
agreement . . . to be bound by the then current Agreement." (Id.) The Terms of Use
Agreement was updated as of December 5, 2024. (Doc. 26 at 45 (Smith Decl., Ex. 4).)
Smith declared that Plaintiff continued to use the CreditWorks service after December 5,
2024. (Doc. 26 at 19-21 ¶¶ 5, 7.)
The 	December 	2024 	Terms 	of 	Use 	Agreement 	stated 	that 	"'ECS' 	means
ConsumerInfo.com, Inc., an Experian ® company (also known as Experian Consumer
Services) and referred to as "Experian" on the Websites, its predecessors in interest,
successors and assigns, affiliates (including, but not limited to Experian Information
Solutions, Inc.), agents, employees, and any of its third party service providers[.]" (Doc.
26 at 45 (Smith Decl., Ex. 4).) The arbitration provision in that Agreement stated:
ECS 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 . . .. For purposes of this Arbitration
Agreement, the term "Information" means any credit, personal, financial or
other information delivered to you as part of, or in conjunction with, the
Services . . .. This agreement to arbitrate is intended to be broadly interpreted
and to make all disputes and claims between us relating to, or arising out of,
this Agreement, any Service and/or Website, including any Information you
obtained through the Services or Websites, subject to arbitration to the fullest
extent permitted by law.
. . . .
the Federal Arbitration Act governs the interpretation and enforcement of
this arbitration provision.
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(Doc. 26 at 52 (Smith Decl., Ex. 4).) Smith declared that Defendant Experian "contributed
to the services that CreditWorks subscribers received by providing regular access to how
information appears in their EIS credit files[.]" (Doc. 26 at 21 ¶ 8.) He also stated that the
Services 	covered 	by 	the 	Terms 	of 	Use 	included 	Defendant's 	provision 	of 	credit
information. (Id.)
Plaintiff did not submit any evidence contradicting that submitted by Defendant.
ANALYSIS
Defendant seeks to compel arbitration under the Federal Arbitration Act (FAA). In
its motion, Defendant contends that Plaintiff agreed to arbitrate this dispute, and Defendant
elects to have this matter resolved in arbitration. Plaintiff argues that the motion should be
denied because Defendant did not provide admissible evidence to establish that this case is
subject to arbitration; Defendant cannot prove that Plaintiff assented to an arbitration
agreement; and Defendant's motion was not timely filed. Plaintiff does not dispute that
Defendant Experian is an affiliate of CIC/ECS with the right to enforce the Arbitration
Agreement or that the Agreement delegates the issue of arbitrability to the arbitrator.
Federal Arbitration Act
Defendant requests that the Court refer this matter to arbitration pursuant to the
FAA. The FAA provides that written agreements to arbitrate controversies arising out of a
contract "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract." 9 U.S.C. § 2. That Act further provides:
If any suit or proceeding be brought in any of the courts of the United States
upon any issue referable to arbitration under an agreement in writing for such
arbitration, the court in which such suit is pending, upon being satisfied that
the issue involved in such suit or proceeding is referable to arbitration under
such an agreement, shall on application of one of the parties stay the trial of
the action until such arbitration has been had in accordance with the terms of
the agreement
9 U.S.C. § 3. Further:
upon being satisfied that the making of the agreement for arbitration or the
failure to comply therewith is not in issue, the court shall make an order
directing the parties to proceed to arbitration in accordance with the terms of
the agreement. . . . If the making of the arbitration agreement or the failure,
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neglect, or refusal to perform the same be in issue, the court shall proceed
summarily to the trial thereof.
9 U.S.C. § 4. "[T]he Act leaves no place for the exercise of discretion by a district court,
but instead mandates that district courts shall direct the parties to proceed to arbitration on
issues as to which an arbitration agreement has been signed." Dean Witter Reynolds, Inc.
v. Byrd, 470 U.S. 213, 218 (1985) (citing 9 U.S.C. §§ 3, 4). A district court must enforce
an arbitration agreement if it determines there is a valid agreement to arbitrate, and the
dispute comes within that arbitration agreement. See Chiron Corp. v. Ortho Diagnostic
Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000).
It is Defendant's burden, as the movant seeking to compel arbitration, to demonstrate
a valid agreement to arbitrate. Ashbey v. Archstone Prop. Mgmt., Inc., 785 F.3d 1320, 1323
(9th Cir. 2015) (citing Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119 (9th Cir.
2008)). Motions to compel arbitration are decided based on Rule 56 summary judgment
standards. Coup v. Scottsdale Plaza Resort, LLC, 823 F. Supp. 2d 931, 939 (D. Ariz. 2011).
Rule 56 directs that "[t]he court shall grant summary judgment if the movant shows 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). In particular, the summary judgment standards
should be applied when a court considers evidence outside the pleadings. Willams v.
Experian Info. Sols. Inc., No. CV-23-01076-PHX-DWL, 2024 WL 3876171, at *7 (D.
Ariz. Aug. 20, 2024) (citing Scott-Ortiz v. CBRE Inc., 501 F. Supp. 3d 717, 721 (D. Ariz.
2020)). To support an argument that there is, or is not, a genuine issue of fact, a party must
cite materials in the record, demonstrate that materials cited by the other party "do not
establish the absence or presence of a genuine dispute, or [show] that an adverse party
cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A) & (B).
Admissibility of Defendant's Evidence of an Arbitration Agreement
Plaintiff argues that Defendant has not presented admissible evidence that the
parties entered into a binding arbitration agreement. Specifically, Plaintiff contends that
Smith's declaration is not based on personal knowledge. Pursuant to the rules for summary
judgment: "An affidavit or declaration used to support or oppose a motion must be made
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on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P.
56(c)(4).
Plaintiff's dispute centers on the following statements of Smith: Plaintiff enrolled
in CreditWorks; Plaintiff provided his personal information to complete two webforms;
and Plaintiff clicked a button to accept Experian's Terms of Use agreement. Plaintiff argues
that Smith failed to identify any documents substantiating his allegations and that his
statements about what Plaintiff "would have had to do" are speculative and unsupported
by evidence. Because Smith was not present on the date that he states Plaintiff enrolled in
CreditWorks, Plaintiff contends that Smith does not have personal knowledge of the
information to which he attested.
The burden of establishing personal knowledge is a minimal one. Strong v. Valdez
Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013) (citing 1 McCormick on Evidence § 10
(Kenneth S. Broun, ed., 7th ed. rev. 2013)). And "[p]ersonal knowledge may be inferred
from a declarant's position." In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000). Smith's
role included supporting consumer enrollment in CreditWorks, which required familiarity
with the online process for enrollment and the terms governing the program. (Doc. 26 at
17 ¶ 1.) He also reviewed relevant business documents in preparing his declaration. (Id.)
As found by another court, "Mr. Smith is not speculating as to what Plaintiff 'accessed,
saw, or clicked on [September 13, 2019],' but is rather asserting what was necessary to
enroll in CreditWorks." Scribner v. Trans Union LLC, 738 F. Supp. 3d 1301, 1305 (E.D.
Cal. 2024).
As cited in Defendant's motion papers, numerous courts have rejected Plaintiff's
argument that an employee is unable to offer "personal knowledge" about a consumer's
enrollment in CreditWorks. (Doc. 34 at 4-5.) Plaintiff has not cited a single case in which
Smith's declaration was rejected for lack of personal knowledge. Two circuit courts
examined a declaration from David Williams, a vice president of Business Governance (the
unit in which Smith worked) at ECS, who provided information like that provided by Smith
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about the consumer enrollment process in CreditWorks. Both of those courts determined
that Williams's declaration was based on personal knowledge and constituted admissible
evidence. Lamonaco v. Experian Info. Sols., Inc., 141 F.4th 1343, 1348 (11th Cir. 2025)
("A declaration that sets forth specific facts based on personal knowledge, describes the
enrollment process, and appends the operative contract is competent evidence sufficient to
satisfy Experian's initial burden."); Austin v. Experian Info. Sols., Inc., 148 F.4th 194, 204-
05 (4th Cir. 2025) ("the operative finding is whether and when Austin enrolled in
CreditWorks, and if so, what terms of use, if any, did he agree to. And nothing in the record
before us suggests that Williams . . . lacked personal knowledge of whether someone signed
up for a free product offered by the company, the date that they did so, and the terms of
use in effect at that time.").
The record supports finding, by a preponderance of the evidence, that Smith had
personal knowledge regarding: the date and fact of Plaintiff's enrollment in CreditWorks,
Plaintiff's submission of his personal information on two webpages for enrollment, Plaintiff
clicking on the button accepting the applicable Terms of Use, and the relevant terms of the
contract. This Court has reached the same conclusion in the past. See Myers v. Experian
Info. Sols., Inc., 734 F. Supp. 3d 912, 918-19 (D. Ariz. 2024); Wang v. Experian Info. Sols.,
Inc., No. CV-24-00250-TUC-AMM (EJM), 2025 WL 2267749, at *6 (D. Ariz. Aug. 6,
2025) ("Mr. Smith's position as Director of Product Operations for CIC, knowledge of the
procedures surrounding enrollment in CreditWorks, as well as knowledge regarding and
access to ECS's internal documents and databases, are sufficient to establish personal
knowledge of the steps a consumer must take and the webpages encountered when signing
up for a CreditWorks account."), report and recommendation adopted, 2025 WL 2420371
(D. Ariz. Aug. 21, 2025); Williams, 2024 WL 3876171, at *8-9 ("Smith's job title and
description of his duties are sufficient to establish his personal knowledge of the steps a
customer must take (and the webpages a customer must encounter) when signing up for a
CreditWorks account."). Plaintiff offered no evidence to contradict Smith's declaration.
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Therefore, the Court finds that Defendant has established the admissibility of the facts
presented in Smith's declaration.
Plaintiff's Assent to Arbitration
Plaintiff 	argues 	that 	the 	online 	agreement 	upon 	which 	Defendant 	relies 	is
insufficient to establish Plaintiff assented to be bound under Arizona law. In determining
whether a valid agreement exists, the Court looks to the state law of Arizona on formation
of contracts. Cir. City Stores, Inc. v. Adams, 279 F.3d 889, 892 (9th Cir. 2002); Taleb v.
AutoNation USA Corp., No. CV-06-02013-PHX-NVW, 2006 WL 3716922, at *2 (D. Ariz.
Nov. 13, 2006). In Arizona, for a valid contract to exist, the contract must "manifest mutual
assent, i.e., the parties' intent to be bound." Myers, 734 F. Supp. 3d at 919 (citing Valdiviezo
v. Phelps Dodge Hidalgo Smelter, Inc., 995 F. Supp. 1060, 1064 (D. Ariz. 1997)). In
evaluating assent, the Court looks at the objective evidence, including acts as well as
written and spoken words. Id. (citing Silva v. Butori Corp., No. CV-19-04904-PHX-MTL,
2020 WL 2308528, at *4 (D. Ariz. May 8, 2020); Johnson v. Earnhardt's Gilbert Dodge,
Inc., 32 P.3d 825, 828, 212 Ariz. 381, 384 (2006)).
Plaintiff's argument—that he did not assent to be bound to the Terms of Use
Agreement—is based almost entirely on a case from another circuit involving a different
defendant with a different online agreement process, Sgouros v. TransUnion Corp., 817
F.3d 1029 (7th Cir. 2016). In Sgouros, the Seventh Circuit acknowledged that "[c]ourts
around the country have recognized that this type of electronic 'click' can suffice to signify
the acceptance of a contract. . . . as long as the layout and language of the site give the user
reasonable notice that a click will manifest assent to an agreement." Id. at 1033-34.
However, that court found TransUnion's online agreement did not provide reasonable
notice. That case is not controlling in this District, and the agreement is distinguishable
from the one at issue here. The TransUnion form provided a text box containing a "Service
Agreement," which disclosed only the first two lines in full without scrolling. Id. at 1032-
33. Below the scroll box was the following statement:
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You understand that by clicking on the "I Accept & Continue to Step 3"
button below, you are providing "written instructions" to TransUnion
Interactive, 	Inc. 	authorizing 	TransUnion 	Interactive, 	Inc. 	to 	obtain
information from your personal credit profile from Experian, Equifax and/or
TransUnion. You authorize TransUnion Interactive, Inc. to obtain such
information solely to confirm your identity and display your credit data to
you.
Id. at 1033. The Seventh Circuit found the form was misleading because the text below the
scrollable Service Agreement did not reference the Service Agreement, suggest the person
assented to the agreement, or mention contractual terms. Id. at 1035.
The Fourth Circuit distinguished Sgouros and the TransUnion Service Agreement
from the one at issue in this case, finding that the CreditWorks enrollment agreement put
a reasonable user on notice of the contract terms and that he was accepting the Terms of
Use Agreement when he clicked on the Submit Secure Order button. Austin, 148 F.4th at
207-08. This Court agrees. After the Sgouros decision, "the Seventh Circuit [] upheld the
validity of an enrollment process similar to CreditWorks." Oatway v. Experian Info. Sols.,
Inc., No. 2:24-CV-00523-LK, 2024 WL 4879822, at *6 (W.D. Wash. Nov. 25, 2024)
(citing Domer v. Menard, Inc., 116 F.4th 686, 692, 699-700 (7th Cir. 2024)). Despite
relying on Sgouros, Plaintiff did not acknowledge the Seventh Circuit's subsequent
decision in Domer. The Court finds that Sgouros is not applicable or persuasive.
Other judges of this Court have found that clicking on the Submit Secure Order
Button when signing up for CreditWorks manifested a consumer's assent under Arizona
law to be bound by the Terms of Use including the Arbitration Agreement. Wang, 2025
WL 2267749, at *9 (finding assent despite the plaintiff asserting he was unaware that he
was agreeing to arbitrate any disputes when he signed up for CreditWorks); Williams, 2024
WL 3876171, at *14 (same). As cited by Defendant, and not refuted by Plaintiff, all other
courts to consider this issue have reached the same conclusion. (Doc. 34 at 1-2, 4-5.) To
counter Defendant's submission of admissible evidence that Plaintiff assented to the
Arbitration Agreement, Plaintiff needed to "unequivocally deny that there was an
arbitration agreement and produce evidence to substantiate the denial." Dillon v. BMO
Harris Bank, N.A., 173 F. Supp. 3d 258, 264 (M.D.N.C. 2016) (citing Drews Distrib., Inc.
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v. Silicon Gaming, Inc., 245 F.3d 347, 352 n.3 (4th Cir. 2001); 9 U.S.C. § 4)), dismissed
sub nom. Dillon v. Bay Cities Bank, No. 16-1373, 2017 WL 11773670 (4th Cir. Apr. 6,
2017)). He has not done so. The Court finds there is no genuine issue of material fact, and,
as a matter of law, Defendant has established by a preponderance of the evidence that
Plaintiff assented to the Arbitration Agreement in the Terms of Use.
Timeliness of the Motion
Plaintiff argues that the Motion to Compel Arbitration should be denied because
Defendant filed it one day past the Court's deadline. Plaintiff argues the untimeliness is
particularly egregious because the motion is a boilerplate one; Defendant was obligated to
file it on time because the company relied on its intention to seek arbitration as a basis to
avoid discovery obligations; and Defendant was given a month's notice of the deadline.
(Doc. 32 at 14-15.) Defendant failed to file a motion for a one-day extension of the
deadline. However, counsel explained that she provided her client a draft of the motion for
review prior to the deadline, but it was not finalized on time because Defendant's declarant,
Dan Smith, was unavailable over the Thanksgiving holiday. (Doc. 26 at 95 ¶¶ 3, 4.)
Although Defendant did not file a motion to extend the deadline, it did provide an
explanation for the late filing. And Plaintiff has not suggested that he was prejudiced by
the untimeliness of the motion. Given the extremely short delay, the Court does not believe
a procedural dismissal of a meritorious motion is warranted.
CONCLUSION AND RECOMMENDATION
The Court finds Defendant has presented admissible evidence that Plaintiff entered
a contract with Defendant and gave his assent to the online Arbitration Agreement. Plaintiff
has offered no evidence in contradiction; therefore, there is no genuine issue of material
fact, and the Arbitration Agreement should be enforced. Additionally, the Court does not
believe dismissal of the Motion to Compel Arbitration is warranted due to it being filed
one day late. Based on the foregoing, the Magistrate Judge recommends that the District
Court enter an order granting Defendant's Motion to Compel Arbitration (Doc. 26) and stay
the case while the parties engage in arbitration.
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Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file
written objections within fourteen days of being served with a copy of the Report and
Recommendation. A party may respond to the other party's objections within fourteen days.
No reply brief shall be filed on objections unless leave is granted by the District Court. If
objections are not timely filed, they may be deemed waived.
Dated this 23rd day of March, 2026.
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