Plaintiff ‘Affirmatively Acknowledged’ Arbitration Agreement on Her Galaxy Phone: Samsung

Plaintiff Tiffany McDougall’s May 2 opposition to Samsung’s motion to compel her fraud claims to arbitration (see 2305030031) “concedes the relevant facts and law applicable to contract formation,” said Samsung’s reply memorandum Wednesday (docket 1:23-cv-00168) in U.S. District Court for Southern New York in Manhattan in further support of its motion to compel. Yet McDougall’s opposition “ignores precedents applying the same facts and law” to enforce “virtually identical” arbitration agreements, said the memorandum. McDougall alleges Samsung misrepresented the storage capacity of her Galaxy S21 Ultra 5G smartphone, and Samsung asserts her claims “must be resolved through arbitration” under the terms and conditions she agreed to when she bought and kept the device. It’s “undisputed” that contract formation “requires no more than inquiry notice of the contract terms and a mutual manifestation of assent,” said Samsung’s reply. McDougall doesn’t contest that she “affirmatively acknowledged” the arbitration agreement when activating her device, “and then declined to opt out thereafter,” it said. Her opposition “resorts to unsworn statements” that she didn’t actually view the arbitration agreement. She also offers “vague suggestions” that some, but not all, of the arbitration notices she received “were insufficient to place her on inquiry,” it said. Even if her unsworn statements “carried evidentiary weight,” and they don’t, her opposition concedes that actual notice isn’t required, said Samsung. As for inquiry notice, McDougall received “clear and conspicuous notice” of the arbitration agreement “everywhere a reasonable consumer could be expected to look,” it said. Those notices said “in plain language” that setting up, using and keeping the device, without opting out of the arbitration agreement, “constituted acceptance,” it said. McDougall doesn’t dispute “she engaged in all such conduct,” it said. “She must therefore arbitrate her claims.” McDougall can’t “avoid the outcome by ignoring “on-point precedents, attacking strawmen” or labeling the arbitration agreement “unconscionable” without factual or legal support, it said. The court should compel arbitration and dismiss the matter, it said.