Google Attorney Seeks to Compel Arbitration in Pixel 6 Fraud Lawsuit

Attorneys for Google requested a pre-motion conference to seek leave to move under the Federal Arbitration Act (FAA) an order to compel arbitration and stay litigation pending the outcome of arbitration in a fraud case brought by a Pixel 6 smartphone owner in U.S. District Court for Eastern New York in Brooklyn.

Mayer Brown attorney Edward Johnson requested a 14-day extension to answer plaintiff Esther Klang’s first amended complaint, in a Tuesday letter (docket 1:23-cv-01316) to U.S. District Judge Nicholas Garaufis. Klang’s counsel plans to oppose the motion to compel arbitration, Johnson said.

Klang sued Google in February (see 2302230004), asserting it didn’t disclose that its claim of a phone charging speed of 50% in 30 minutes requires buying its $25 30-watt USB-C charger. She claims violation of the New York General Business Law, multiple states’ consumer fraud acts, breach of warranty and unjust enrichment.

The plaintiff doesn’t have “viable claims on the merits,” Johnson said, but as a “threshold matter,” the claims can’t be litigated in court because Klang agreed to resolve her dispute with Google through individual arbitration. The FAA requires enforcement of the agreement because a valid agreement to arbitrate exists and Klang’s claims are within the scope of the agreement, Johnson said.

Klang agreed to Google’s device arbitration agreement when she electronically activated her Pixel 6, said Johnson. During that process, she agreed to resolve all disputes regarding the device through binding arbitration “on an individual, non-class basis,” unless she opted out by following instructions in the agreement, he said. She couldn’t have activated the device without accepting the terms, Johnson said, and Google has no record of her opting out.

Klang also assented to the device arbitration agreement by continuing to use her phone after receiving notice of the agreement through its product packaging, which states that acceptance of an arbitration agreement would be required and that the agreement was in a printed booklet in the box. The agreement informed her she had the right to return the phone or opt out of the arbitration terms if she didn’t agree with them, he said.

When an enforceable arbitration agreement covers a plaintiff’s claims, section 3 of the FAA requires both arbitration and a stay of the lawsuit, said Johnson, citing U.S. Code Title 3. Johnson also cited a 2nd Circuit U.S. Court of Appeals ruling in Katz v. Cellco Partnership ruling that a stay is mandatory under section 3.