Google's Arbitration Agreement Not Enforceable, Says Fraud Plaintiff

Google’s arbitration agreement isn't enforceable, said plaintiff Steve Nichols’ Wednesday memorandum of law (docket 1:23-cv-01022) in opposition to defendant’s motion to compel arbitration in U.S. District Court for Colorado in Denver. Nichols sued Google in April (see 2304240055) in a fraud complaint over 5G service on his Pixel 5 and 5a phones. Google asserts Nichols agreed to arbitrate when he accepted “all applicable agreements” when registering the phones. The court should decline to compel arbitration because Google’s arbitration agreement “fraudulently induced” Nichols’ acceptance, said the memorandum. One misrepresentation was that arbitration is the “quickest and most cost-effective way” to resolve disputes, even though it's a “myth” that arbitration is cheaper and faster than litigation, the memorandum said, citing CellInfo v. American Tower. The agreement is also misleading in saying arbitration uses a “neutral arbitrator” instead of a judge or jury and that arbitrators can award “the same damages and remedies that a court can award,” it said. “This mischaracterizes the role of a judge and jury, which are by definition 'neutral,' enshrined by the Constitution to render equal justice under the law.” That the agreement precludes class actions also makes it “false to assert” arbitration is equivalent to litigation, it said. The 10th U.S. Circuit Court of Appeals has declined to compel arbitration in similar circumstances where the agreements were “ambiguous” and “fundamentally incompatible,” said the memorandum, noting Google’s “additional legal terms” that simultaneously “bind” users to arbitration yet subsequently allow them to “opt out.” To accept that Nichols consented to the additional legal terms by clicking “’I accept’ ignores that it's unclear whether he accepted to opt out or to agree to arbitrate, the memorandum said. He was agreeing to either arbitration or to opt out of arbitration, “rendering the action of pressing the ‘I accept’ button ambiguous and confusing,” he said. Because the parties dispute the existence of a valid arbitration agreement, said the memorandum, “the presumption in favor of arbitration ‘in interpreting the scope of an arbitration agreement … disappears,’” it said, citing Parrish v. Valero Retail Holdings.