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Consumer opens account A with a business in 2010 and signs contract A, which does not include an arbitration clause. Consumer opens account B in 2015 and signs contract A. Business amends contract A in 2020, now A2, and adds the following:

All claims or disputes between you and us about or relating in any way to your account, any prior account, your agreement with us (including any future amendments), any prior cardmember agreement, or our relationship are referred to as "Claims" for purposes of this agreement to arbitrate.

Is consumer bound to arbitrate claims concerning account A? In other words, is "prior" relative to the signing of the original contract in 2010, or to the amendment in 2020?


EDIT: Real-world scenario below.

As part of a 2009 settlement, Chase agreed to remove arbitration clauses from credit card agreements for few years. If a consumer opened a credit card during this period, they did not consent to arbitration. In 2019, Chase sent letters to cardholders letting them know that their agreements were being amended to include an arbitration clause.

The scenario is this:

  1. 2010: Customer opens account A. Cardmember agreement does not contains an arbitration clause.
  2. 2012: Customer opens account B. Cardmember agreement does not contains an arbitration clause.
  3. 2018: Customer closes account B.
  4. 2019: Chase sends customer letter stating that cardmember agreement for account A is being amended to include arbitration clause.
  5. 2020: Customer discovers that they have a legal claim concerning account B.

Is customer bound to arbitrate the claim concerning account B? Account B was not opened prior to account A. But it was opened prior to the amendment.

A more complete excerpt of the arbitration clause added in 2019:

For purposes of this agreement to arbitrate, “you” includes any co-applicant or authorized user on your account, or anyone else connected with you or claiming through you; and “we” or “us” includes JPMorgan Chase Bank, N.A. and Chase Bank USA, N.A., all of their parents, subsidiaries, affiliates, successors, predecessors, employees, and related persons or entities and all third parties who are regarded as agents or representatives of us in connection with the account, or the subject matter of the claim or dispute at issue.

All claims or disputes between you and us about or relating in any way to your account, any prior account, your Cardmember Agreement with us (including any future amendments), any prior Cardmember Agreement, or our relationship are referred to as “Claims” for purposes of this agreement to arbitrate. Claims include, for example, claims or disputes arising from or relating in any way to transactions involving your account; any interest, charges, or fees assessed on your account; any service(s) or programs related to your account; any communications related to your account; and any collection or credit reporting of your account. Claims also include claims or disputes arising from or relating in any way to advertising and solicitations, or the application for, approval, or establishment of your account. Claims are subject to arbitration regardless of whether they are based on contract, tort, statute, regulation, common law or equity, or whether they seek legal or equitable remedies. All Claims are subject to arbitration whether they arose in the past, may currently exist, or may arise in the future. Arbitration will apply even if your account is closed, sold, or assigned; you pay us in full any outstanding debt you owe; or you file for bankruptcy. In the event that your account is sold and/or assigned, we retain our right to elect arbitration of Claims by you and you retain your right to elect arbitration of Claims by us.

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Is consumer bound to arbitrate claims concerning account A?

That excerpt of A2 is inconclusive. Either the draftsman was sloppy or you did not include all relevant portions of the amended contract.

The quoted paragraph only defines the term "Claims". In and of itself, it does not indicate that everything within that definition shall undergo arbitration.

is "prior" relative to the signing of the original contract in 2010, or to the amendment in 2020?

This question is somewhat unclear, but the paragraph encompasses everything between the parties. The reference to "our relation" reinforces this interpretation, since the relation might pre-exist the signing of the initial contract.

Although a customer might opt to litigate a matter that ensued prior to signing the contract in 2010, chances are that the matter is superseded by the contract and/or the statute of limitations has expired.

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  • I edited to include a more full excerpt and a more concrete scenario. Later down is "All Claims are subject to arbitration whether they arose in the past, may currently exist, or may arise in the future." I do see your point about "our relationship". I wonder, for sake of argument, what the answer would be if that phrase was not present? Jul 10 at 0:25
  • @JoshJohnson "Later down is "All Claims are subject to arbitration whether they arose in the past". Then this means that customer's matter regarding account B is also subject to arbitration because the definition of "Claims" includes "any prior account", and account B is customer's prior account. "what the answer would be if that phrase was not present?" Regarding account B, the answer is the same. The term "our relationship" encompasses other matters short of --or other than-- contractual, such as quasi-contract issues, torts, or matters of equity. Jul 10 at 12:14
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A contract cannot be unilaterally modified, though at times it seems that way. The business can propose a modification of the contract, and the customer can accept or reject the proposal. If they accept the proposal, the contract continues under the new terms, otherwise the contract terminates. But in the case of contract B, the contract is already terminated, and the customer has no option of accepting or rejecting the amendment. The business cannot forcefully resuscitate a dead contract to force an accept / reject choice on a customer. The contract, in its state as of the termination, is what governs subsequent litigation.

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