In Arnaud v. Doctor’s Associates Inc., d/b/a Subway, the Second Circuit affirmed a lower court’s denial of a motion to compel arbitration of claims of violation of the Telephone Consumer Protection Act. Plaintiff filed a putative class action predicated upon alleged unsolicited text messages he received from the Subway franchise following his attempt to pursue a free sandwich offer by entering his phone number on a promotional page of the Subway website.

As the Second Circuit explained, “[a]ccording to Subway, such an action constituted assent to the terms and conditions contained on a separate webpage that was accessible via a hyperlink on the promotional page—terms and conditions that included an agreement to arbitrate. Nevertheless, the District Court denied Subway’s Motion, finding that no arbitration agreement existed between the parties since the terms and conditions were not reasonably clear and conspicuous on the promotional page itself. As a result, Arnaud was not on notice of the arbitration provision.”

The Second Circuit affirmed, noting that “[a] reasonable user would not find the terms and
conditions link contained on the page to be conspicuous, since the link was at the bottom of the page, in relatively small font, and was introduced by no language other than the shorthand “T & Cs.” A reasonable user would therefore not recognize that by clicking “I’M IN” he agreed to be bound by those terms and conditions.”

In SCI Texas Funeral Services, L.L.C. v. Montoya, a Texas court of appeals addressed a funeral home’s motion to compel arbitration of claims brought against it arising out of the following alleged facts:

“Orlando [Odell Montoya] passed away and his remains were taken to Garcia & Trevino Funeral Home of Mercedes, Texas. After visitation and a memorial service, the parties and mourners proceeded to Restlawn Memorial Cemetery in La Feria, Texas, for a graveside ceremony. There, while the family was placing flowers on Orlando’s coffin, the lowering device for the coffin failed and the coffin fell and flipped into the grave. The maintenance workers attempted to raise the coffin, however, it fell a second time and cracked open. After the mourners departed, the workers removed the casket and Orlando’s remains, placed Orlando’s remains in a ‘shed,’ and ultimately placed his remains in a second casket.”

Reversing the lower court, the court of appeals held that an arbitration agreement signed by the decedent’s widow bound their children. Even though the children were not signatories to the agreement, they were third party beneficiaries, and thus their claims were required to be arbitrated.

Stanley Martin of Commonsense Construction Law LLC has published this article in Lexology, discussing the Third Circuit’s decision in MZM Constr. Co. v. N.J. Bldg. Laborers Statewide Benefit Funds.

This article by Daniel Wiessner, published by Reuters Legal, discusses the Tenth Circuit’s decision in Fedor v. United Healthcare Inc, No. 19-2066, in which the court “said the judge was wrong to leave it to an arbitrator to decide whether a 2016 agreement properly superseded older pacts that had been signed by the workers involved in the case.”

“[C]ourts sometimes decline to enforce arbitration clauses despite federal public policy favoring arbitration. The United States District Court for the Middle District of Florida recently continued this trend in a consumer dispute over the repossession of a Jeep Wrangler.”

So begins this article in Lexology by Brent Owen of Squire Patton Boggs, discussing the court’s decision in Johnson v. Westlake Portfolio Mgmt., LLC, No. 8:20-cv-749, 2020 U.S. Dist. LEXIS 168538 (M.D. Fla. Sept. 15, 2020).

Jonathan Nirenberg of Rabner Baumgart Ben-Asher & Nirenberg has authored this article discussing the New Jersey’s recent Flanzman decision.

Kenneth Turnbull, Leni Battaglia and Michael Fleming of Morgan, Lewis and Bockius have authored this article, published in Lexology, discussing the court’s decision in Seltzer v. Clark Associates, LLC , which they suggest “serves as a reminder for employers who are implementing or renewing arbitration agreements to ensure that they do so in a manner that will meet the minimum standards of contract formation.”

This article in AdvisorHub discusses a recent Massachusetts court decision “refus[ing] to modify or vacate a Finra arbitration panel’s award of $1.6 million in compensatory damages, more than $83,000 in costs and almost $411,000 in attorneys’ fees to four Boston brokers who joined UBS five years ago.”

As the article explains, “Credit Suisse has lost another attempt to overturn an arbitration decision awarding millions of dollars in deferred compensation and fees to brokers who defied its plan to have them join Wells Fargo Advisors after the Swiss bank’s 2015 decision to close its U.S. brokerage business.”

An article entitled “Trump Judge Requires Individual Arbitration of Complaint Against Corporation for Making Illegal Telemarketing Calls and Prevents Class Action: Confirmed Judges, Confirmed Fears,” authored by Elliot Mincberg and posted by People for the American Way, argues that the Fourth Circuit’s recent 2-1 decision in Mey v. DIRECTV, LLC “accelerates the trend, begun by the Roberts Court, of harming consumers by forcing individual arbitration of complaints about corporate misconduct and preventing effective methods like class actions to seek relief.”

Thomas Howley and Robert Szyba of Seyfarth Shaw LLP have this article in Lexology, discussing the New Jersey Supreme Court’s recent decision in Flanzman v. Jenny Craig, Inc.

And an article by Annmarie Simeone of Norris McLaughlin P.A., discussing Flanzman, published in The National Law Review, can be found here.