Courts Reach Different Results Re Agreements To Arbitrate

An Alabama federal court, in Carusone v. Nintendo of America, stayed a putative class action alleging a defect in a joystick controller, holding that the clickwrap agreement accepted by the plaintiff contained an enforceable arbitration provision. The court noted that the End-User License Agreement provided for a purchaser to opt-out of the agreement’s arbitration requirement by providing written notice with 30 days of purchase, an opportunity which, unsurprisingly, the plaintiff failed to pursue.

Meanwhile, on the other coast, a California federal court has denied without prejudice a defendant’s motion to compel arbitration of claimed violations of California’s consumer protection and lending and credit services laws. In Belyea v. Greensky, Inc., 20-cv-01693-JSC, the court rejected a lender’s argument that a borrower, by utilizing a loan facility to pay for certain home repairs had, by her conduct and the posting of the arbitration provisions on the lender’s website, had evidenced her acceptance of the arbitration requirement, leaving open the possibility of reconsidering the issue once certain discovery occurs.

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