Seventh Circuit Throws Out TransUnion's Clickwrap Agreement And Incorporated Class Waiver

In recent years, and in particular since decisions like AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), a powerful defense to consumer class actions has been arbitration agreements that include class waivers. The Supreme Court's recent decision in DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) reinforces that defense, and assures that the use of arbitration agreements and class waivers will continue to be a powerful tool to use against consumer class actions.

But before Concepcion and Imburgia can apply, the consumer must be bound to an arbitration agreement—a task that is not necessarily straightforward. In Sgouros v. TransUnion Corp., — F.3d —, 2016 WL 1169411 (7th Cir. Mar. 25, 2016), the Court held that the plaintiff-consumer did not agree to arbitrate his claims when he purchased his credit score on TransUnion's website.