W. W. v. ALLEGHENY HEALTH NETWORK

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA W. W., 2:23-CV-01163-CCW Plaintiff, v. ALLEGHENY HEALTH NETWORK, Defendant. OPINION On June 23, 2023, Plaintiff W.W.1 filed a putative class action against Defendant Allegheny Health Network (“AHN”). ECF No. 1. Plaintiff contends that AHN unlawfully collected confidential health information from users who visited the AHN website, and then disclosed their information to third parties, in violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2511(1), and several Pennsylvania state laws. See generally ECF No. 1. In response, AHN moved to compel arbitration pursuant to an arbitration agreement appearing in AHN’s Terms of Service, a link to which appears on AHN’s website. ECF No. 15. On May 16, 2024, the Court denied without prejudice AHN’s motion to compel arbitration and ordered the parties to proceed to limited fact discovery on the issue of arbitrability. ECF No. 28. Following fact discovery, AHN renewed its Motion to Compel Arbitration, which Plaintiff opposes. ECF Nos. 29, 36. Having been fully briefed, the matter is now ripe for disposition.2 ECF Nos. 29–32, 36, 39–42. 1 Plaintiff W.W. filed his Complaint pseudonymously to protect his private health information. 2 This Court has federal question jurisdiction over Plaintiff’s federal claims under 28 U.S.C. § 1331 and supplemental jurisdiction over his state-law claims pursuant to 28 U.S.C. § 1367. I. Material Facts The following facts are drawn from the parties’ consolidated factual statements, ECF Nos. 30, 39, 42, and are undisputed unless otherwise noted. Plaintiff has been AHN’s patient for several years and, since 2015, has frequently and regularly used AHN’s website (www.ahn.org) and the specific “Find a Doctor” page to obtain treatment and services. ECF No. 39 ¶¶ 1–3. On December 19, 2022, AHN added Terms of Service to its website. Id. ¶ 7. The Terms of Service state: Anyone using this Site agrees to be bound by the terms of use. . . . If you do not accept these terms and conditions, you must not access or use the Site. By accessing and using the Website, you are indicating your acceptance to be bound by these Terms of Service. Id. ¶ 18; ECF No. 32-2 at 1. These Terms of Service also contain a Pennsylvania choice-of-law provision and include an arbitration provision. ECF No. 39 ¶¶ 7, 22. This arbitration provision states: Any dispute, cause of action, controversy or claim . . . by either party, arising out of or relating to: i) these Terms of Service, ii) Any additional Terms and Conditions contained on the Site (including but not limited to the Privacy Policy and GDPR Policy), iii) your use of this Site, and iv) any products and/or services accessed within or through the Site, shall be resolved by a single impartial arbitrator. Id. ¶ 20; ECF No. 32-2 at 5. A link to the Terms of Service appears on the homepage of AHN’s website and on the “Find a Doctor” page.3 ECF No. 39 ¶¶ 8, 15. On AHN’s homepage, the Terms of Service link is located at the very bottom of the page, requiring the user to first scroll through several sections of content. Id.; see also AHN, Homepage, available at https://www.ahn.org (last visited February 20, 2025) (requiring user to scroll through several sections of content before reaching bottom of page). The bottom of the homepage contains a large, dark blue footer with the 3 The appearance of AHN’s “Find a Doctor” page and the footer of every other webpage containing the Terms of Service link have remained consistent since the Terms were added on December 19, 2022. ECF No. 39 ¶ 17. AHN logo, phone number, and social media icons as well as over forty different links displayed in white font. ECF No. 39 § 15 Among these links is the Terms of Service link. /d. ee yal eri uiee: at AUC) cenit Clit □□ Ne || iat | jinn A> | (+) CHLPs)sleluarsig a eu ints] A Reese er Rm U Rent] bariate = Plexo: ce meal Celta tter=1 i Marly DTieetre nile drsre] □□ ere slut peer hd [E4y2) plelegre)°t> Piette Melee) efor aleiarem xe (0 elie Lea} (elVig R-tle(oecil|) (CbPaKivecler es Dero Mele Lelie ere) Loreal t-te a Os} a Pa Le Mave Eien Leet RO (ct Liste a] (een □□□ Ccre Vero MY CorelCers] Ea ccrere ce) Test iale) (ofeys[-Mo) a siti -cecm elie Nome) ail eRe Perea Cleo efeR oN elm ace) (dear (OF 1¢-t ig ea] INCE BT eetcol □□□ meUALe| Seba ool perr Merete ae eter elec ts ere at a cot pots se awa ants darts ec) Leiter larss l-lif (efeh oe Neleiae-Ual)| aad CoM Ut ue Ber s)s)i (com lela OE reat) AHN, Homepage, available at (last visited February 20, 2025). The link to the Terms of Service also appears on AHN’s “Find a Doctor” page. ECF No. 39 48; see also AHN, Find a Doctor page, available at (last visited February 20, 2025). This webpage contains a mint green background with a search bar in the middle of the screen. /d. At the bottom of the page, there is a dark blue footer containing the AHN logo and phone number in bright-white font. /d. Below this, there is a second, much thinner footer, in dark navy with four links displayed in a grayish-white font. /d. One of these links is the Terms of Service. Jd. & AHN Provider Directory Edit Provider Profle □□□ Find Care Q specialty, location, name. PY ah