Comcast Customer Must Arbitrate Data Privacy Fight

Feb. 28, 2019, 2:59 PM

Comcast Corp. is entitled to arbitration in a dispute about whether the company adequately protects its customers’ information, a federal court ruled Feb. 27.

Elizabeth O’Neil brought a putative class action, saying Comcast’s failure to protect her information led to identity theft. But under the subscriber agreement she signed, O’Neil must bring her claims in individual arbitration, the U.S. District Court for the Northern District of Illinois ruled.

O’Neil had an Xfinity account for wireless internet at her home. In November 2017, she was alerted that several cell phones she didn’t purchase had been charged to her Xfinity account and shipped to various addresses in the U.S.

O’Neil claims Comcast used existing cable and internet subscribers’ personal information, including their payment information, to open Xfinity Mobile accounts without their knowledge or consent. Due to a lack of security measures, unauthorized users could easily access these accounts and fraudulently buy cell phones, she said.

She brought suit against Comcast and Comcast Cable Communications for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of an implied contract to reasonably safeguard subscribers’ personal information, and unjust enrichment. She also asked the court to certify her case as a class action on behalf of other Comcast subscribers who had cell phones fraudulently purchased in their name.

But Comcast’s standard subscriber agreement requires O’Neil to bring her claims in individual arbitration, the court said. It rejected O’Neil’s argument that the agreement’s arbitration provision only applied to disputes over Internet services.

The court also held the arbitration provision wasn’t unconscionable, in part because O’Neil could have opted out of the arbitration requirement within 30 days of her Xfinity service activation, with no repercussions.

O’Neil was represented by Sweetnam LLC. Comcast was represented by Neal & McDevitt and Akin Gump Strauss Hauer & Feld LLP.

The case is O’Neil v. Comcast Corp., N.D. Ill., No. 18-04249, 2/27/19.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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