govinfo:USCOURTS-ohsd-2_26-cv-00523-4

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
 
JUANITA HERRERA, individually 
and on behalf of all others 
similarly situated, 
 
Plaintiff, 
 
v. 
 
 
VICTORIA’S SECRET & CO., 
 
Defendant. 
: 
 
 
 
 
 
: 

Chief Judge Sarah D. Morrison 
Magistrate Judge Chelsey M. 
Vascura 
 
OPINION AND ORDER 
Juanita Herrera alleges Victoria’s Secret & Co.’s website is inaccessible to 
visually impaired and legally blind people who require screen reading software to 
read the website’s content. So she filed suit in the United States District Court for 
the Northern District of California seeking to represent a class of similarly situated 
people against Victoria’s Secret for violations of the Americans with Disabilities Act 
and California’s Unruh Civil Rights Act. The case was transferred to this Court 
under 28 U.S.C. § 1404(a). (ECF No. 89.) 
Before the case was transferred, Victoria’s Secret moved to strike Ms. 
Herrera’s class claims, to compel arbitration, and to stay the case pending 
arbitration proceedings. (ECF No. 70.) Victoria’s Secret’s Motion is fully briefed and 
now ripe for the Court’s decision. (See ECF Nos. 73 and 80.) 
For the reasons below, Victoria’s Secret’s Motion is GRANTED. 
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I. BACKGROUND 
The facts included here are drawn from the parties briefing and the Second 
Amended Complaint. Neither party disputes the facts. Instead, the dispute lies in 
whether Ms. Herrera was bound by the website’s Terms of Use, and that is a legal 
question. See Raasch v. NCR Corp., 254 F. Supp. 2d 847, 851 (S.D. Ohio 2003) (Rice, 
J.) (“In evaluating motions or petition to compel arbitration, courts treat the facts as 
they would in ruling on a summary judgment motion, construing all facts and 
reasonable inferences that can be drawn therefrom in a light most favorable to the 
non-moving party.”). 
This case was originally filed with Vivian Salazar as the named plaintiff. 
After a Second Amended Complaint was filed on July 11, 2025, Ms. Herrera became 
the named plaintiff. (See Second Am. Compl., ECF No. 52.) Ms. Herrera, a visually 
impaired and legally blind person, visited Victoria’s Secret’s website in 2022 with 
the help of a screen reader to purchase items for in-store pickup. (Id., ¶¶ 28, 30.) 
According to Ms. Herrera, there were several issues with the website that prevented 
her from using her screen reader to complete her purchase. (Id., ¶ 31.) 
Victoria’s Secret owns and operates retail stores and a website, all of which 
sell apparel, sleepwear, beauty products, and accessories. (Id., ¶ 5.) After some 
investigation, Victoria’s Secret discovered that Ms. Herrera was a member of its 
rewards program. (Mot., ECF No. 70, PAGEID # 857.) As a member of the rewards 
program, Ms. Herrera was required to login through the website to access her 
account, which she did on May 28, 2024. (Id., PAGEID # 859.) During log-in, she 
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clicked a “SECURE SIGN IN” button. (Id.) The following language was displayed 
above the “SECURE SIGN IN” button: 
Upon clicking “SECURE SIGN IN” I acknowledge that I am becoming 
a member of the VS & PINK Rewards program and accept the VS & 
PINK Rewards Terms, Terms of Use, Privacy Policy, Financial 
Incentive Notice (California), and agree to receive marketing emails 
during VS & PINK Rewards program registration. 
(Id.) The terms of use contains a “binding arbitration” provision which states: 
B. Binding Arbitration. If we cannot resolve a Dispute as set forth in 
Section 12(A) (or agree to arbitration in writing with respect to an 
Excluded Dispute) within sixty (60) days of receipt of the fully 
completed notice, then ANY AND ALL DISPUTES ARISING 
BETWEEN YOU AND VICTORIA’S SECRET (WHETHER BASED IN 
CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— 
INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER 
INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, 
CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, 
AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), 
WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE 
OF THESE TERMS, MUST BE RESOLVED BY FINAL AND 
BINDING ARBITRATION. THIS INCLUDES ANY AND ALL 
DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED 
THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR 
THROUGH THE SERVICE. Dispute shall be interpreted broadly. For 
U.S. residents, the Federal Arbitration Act (“FAA”), not state law, 
shall govern the arbitrability of all. Disputes, including the “No Class 
Action Matters” set forth in Section 12(D) below. If you reside in the 
U.S. (and as applicable to U.S. residents), you agree that this 
constitutes a transaction in interstate commerce and certain portions 
of this Section 12 are deemed to be a “written agreement to arbitrate” 
pursuant to the FAA. You and Victoria’s Secret agree that we intend 
that this Section 12 satisfies the “writing” requirement of the FAA. BY 
AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS 
RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A 
JUDGE OR JURY. TO THE FULLEST EXTENT PERMITTED BY 
LAW. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR 
BRING CLASS ACTIONS OR REPRESENTATIVE ACTIONS…. 
(Id., PAGEID # 865–66.) 
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II. PROCEDURAL HISTORY 
After Ms. Herrera filed the Second Amended Complaint, Victoria’s Secret 
moved to transfer venue (ECF No. 69) and to compel arbitration (ECF No. 70). The 
motion to transfer venue was granted when the United States District Court for the 
Northern District of California held that Ms. Herrera was bound by the website’s 
terms of use and found that the forum selection clause contained therein required 
the case be transferred to this Court. (See generally ECF No. 89.) 
III. MOTION TO COMPEL ARBITRATION 
The Federal Arbitration Act (“FAA”) is “a national policy favoring arbitration 
when the parties contract for that mode of dispute resolution.” Preston v. Ferrer, 552 
U.S. 346, 349 (2008) (citation modified). The FAA “reflects the basic principles that 
arbitration is a matter of contract and that contracts must be enforced according to 
their terms.” Blanton v. Domino’s Pizza Franchising LLC, 962 F.3d 842, 844 (6th 
Cir. 2020) (internal quotations and citation omitted). Under the FAA, an arbitration 
clause “shall be valid, irrevocable, and enforceable, save upon such grounds as exist 
at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. 
A party may petition a court to order that a dispute proceed in arbitration in 
accordance with an arbitration agreement. See 9 U.S.C. § 4. When presented with a 
motion to compel arbitration, courts consider: (1) whether a valid agreement to 
arbitrate exists; (2) whether the dispute falls within the scope of that agreement; 
(3) whether any federal statutory claims are asserted that Congress intended to be 
non-arbitrable; and (4) if some but not all claims are arbitrable, whether to stay 
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proceedings. Glazer v. Lehman Bros., Inc., 394 F.3d 444, 451 (6th Cir. 2005) 
(citation omitted). “[A]ny doubts regarding arbitrability must be resolved in favor of 
arbitration.” Id. at 450 (citation omitted). 
A. There is a valid agreement to arbitrate. 
Ms. Herrera complains that the same accessibility issues that prompted her 
lawsuit also prevented her from understanding the importance of clicking the 
“SECURE SIGN IN.” (See Resp., ECF No. 73, PAGEID # 1010–11.) Ms. Herrera 
often relied on her sister to assist with basic site navigation and product review. 
(Id., PAGEID # 1011.) And according to Ms. Herrera, her sister did not read or 
communicate the terms of use or the binding arbitration provision, nor did she 
express that signing in carried contractual consequences. (Id.) Accordingly, Ms. 
Herrera does not dispute the existence of the terms of use or its arbitration 
provision, but she does dispute that it applied to her. But the Northern District of 
California held Ms. Herrera “is bound by her sister’s agreement on her behalf to the 
Terms of Use[.]” (ECF No. 89, PAGEID # 1586.) So that is the law-of-the-case. 
“The defining feature of the law-of-the-case doctrine is that it applies only 
within the same case.” Edmonds v. Smith, 922 F.3d 737, 739 (6th Cir. 2019). “As the 
doctrine goes, ‘findings made at one stage in the litigation should not be 
reconsidered at subsequent stages of that same litigation.’” Id. (citing Burley v. 
Gagacki, 834 F.3d 606, 618 (6th Cir. 2016)). The doctrine recognizes “that for cases 
to reach resolution, issues cannot be argued and reargued without end.” Id. at 740. 
And it “applies with equal vigor to the decisions of a coordinate court in the same 
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case and to a court’s own decisions.” United States v. Todd, 920 F.2d 399, 403 (6th 
Cir. 1990). 
Ms. Herrera repeats the same arguments about not being bound by the terms 
of use here as she did in her opposition to Victoria’s Secret’s Motion to Transfer 
Venue. She even incorporated her opposition to the Motion to Compel into her 
opposition to the Motion to Transfer Venue. (See ECF No. 74, PAGEID # 1035.) Yet 
the Northern District of California was unpersuaded and held that Ms. Herrera was 
bound by the terms of use. The Court agrees and finds no reason to relitigate the 
issue here. 
 Accordingly, Ms. Herrera is bound by the website’s terms of use. 
B. Ms. Herrera’s claims fall under the arbitration provision. 
Ms. Herrera argues the arbitration provision does not apply to her California 
state-law claim seeking forward-looking public injunctive relief. But her state-law 
claim seeks injunctive relief on behalf of herself and a class of similarly situated 
persons – not the public. See Hodges v. Comcast Cable Commc’ns, LLC, 21 F.4th 
535, 542 (9th Cir. 2021) (“[W]hen the injunctive relief being sought is for the benefit 
of a discrete class of persons, or would require consideration of the private rights 
and obligations of individual non-parties, it has been held to be private injunctive 
relief.”). Thus, the general rule that an arbitration provision cannot waive one’s 
statutory right to seek public injunctive relief does not apply to her claim. See 
McGill v. Citibank, N.A., 393 P.3d 85 (Cal. 2017). 
Ms. Herrera offers no other argument to suggest her claims are outside the 
scope of the arbitration provision. Nor could she, as the provision applies to “any 
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and all disputes arising between [Ms. Herrera] and Victoria’s Secret[.]” (Mot., 
PAGEID # 865); see, e.g., AT&T Technologies, Inc. v. Commc’ns Workers of Am., 475 
U.S. 643, 650 (1986) (“[The presumption of arbitrability is] particularly applicable 
where the clause is as broad as the one employed in this case, which provides for 
arbitration of ‘any differences arising with respect to the interpretation of this 
contract or the performance of any obligation hereunder[.]’”). 
Accordingly, Ms. Herrera’s claims are subject to arbitration and this action 
must be stayed. See Smith v. Spizzirri, 601 U.S. 472, 478 (2024) (“When a district 
court finds that a lawsuit involves an arbitrable dispute, and a party requests a 
stay pending arbitration, § 3 of the FAA compels the court to stay the proceeding.”). 
IV. MOTION TO STRIKE CLASS CLAIMS 
When construing an arbitration provision or related clause, courts “must give 
effect to the contractual rights and expectations of the parties.” Stolt-Nielsen S.A. v. 
AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010) (citation omitted). “[I]t follows 
that a party may not be compelled under the FAA to submit to class arbitration 
unless there is a contractual basis for concluding that the party agreed to do so.” Id. 
at 684. 
Ms. Herrera’s agreement to arbitrate contains a class-action waiver: 
YOU AND VICTORIA’S SECRET AGREE THAT EACH MAY BRING 
CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS 
INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS 
MEMBER IN ANY PURPORTED CLASS, PRIVATE ATTORNEY 
GENERAL OR REPRESENTATIVE PROCEEDING OR AS AN 
ASSOCIATION. 
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(Mot., PAGEID # 866.) Like the arbitration provision, Ms. Herrera is bound by the 
class-action waiver. 
Accordingly, Ms. Herrera’s class allegations are STRICKEN. 
V. CONCLUSION 
Victoria’s Secret’s Motion (ECF No. 70) is GRANTED. Ms. Herrera’s class- 
allegations are STRICKEN. Ms. Herrera may proceed in her individual capacity in 
arbitration. This case is STAYED pending the outcome of arbitration. The parties 
are ORDERED to file a joint status report apprising the Court of the status of 
arbitration every six months or upon the conclusion of the arbitration proceedings, 
whichever is earlier. 
 
IT IS SO ORDERED. 
/s/ Sarah D. Morrison 
SARAH D. MORRISON, CHIEF JUDGE 
UNITED STATES DISTRICT COURT 
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