The plaintiff Monica Garcia, an employee at the Montegna Law Office, received a customer service phone call from Dell Financial Services (DFS), a company that Montegna had a business account with. During the call, the DFS representative asked to speak to someone about a business matter. Garcia told the representative that no one was available and then asked the representative if the call was being recorded. The DFS representative answered affirmative.

Garcia subsequently sued DFS on April 17, 2012, alleging common law and statutory invasion of privacy, negligence, and unlawful business practices, and seeking statutory and punitive damages.

The defendant moved to compel arbitration. When Montegna Law Office created an account with DFS, it provided contact information, including a telephone number and signed a Consumer Agreement. The agreement contained an arbitration clause which stated “[A]ny claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute;

common law; or equity . . . ) . . . arising from or relating to the Credit Agreement or the relationships which result from this Credit Agreement, including the validity or enforceability of this arbitration provision, any part thereof or the entire Credit Agreement (’Claim’) shall be decided, upon the election of you or us, by binding arbitration pursuant to this arbitration provision and the applicable rules and procedures of the arbitration administrator.”

Garcia argued that the arbitration clause did not apply to her because she was a non-signatory.

Garcia also argued that the contract was unenforceable because it is ambiguous in the term “you.”

What do you think of Garcia’s arguments? What elements must the judge consider to decide whether to compel arbitration?