Google Pixel User Didn't Opt Out of Agreement, Is Compelled to Arbitrate, Says Judge

U.S. Magistrate Judge Reid Neureiter recommended that Google’s motion to compel arbitration in a fraud case be granted, said a Tuesday filing (docket 1:23-cv-01022) in U.S. District Court for Colorado in Denver. The court heard argument from the parties July 27. Plaintiff Steven Nichols alleged Google advertises that Pixel 4a, 5 and 5a phones are capable of accessing 5G networks but that a recent software update renders the phone unable to access 5G networks, said Neureiter’s report and recommendation. Nichols sued for breach of contract, breach of express and implied warranties, negligent misrepresentation, fraud and unjust enrichment. Google argued that Nichols agreed in the phone’s setup process to arbitrate all disputes and that the case can’t proceed in federal court. Nichols accepted the arbitration agreement during setup of his first Pixel 5 in 2020, then again in 2022 when setting up second and third Pixel 5 phones, and he did not opt out of the arbitration agreement, said the report. Nichols contended that the legal terms contained ambiguous language, making it unclear whether he was opting in or out of arbitration by hitting “I accept” and that opt-out instructions were buried deep within the arbitration agreement; Neureiter called his arguments “unpersuasive.” Nichols assented to the arbitration agreement twice, the judge said: when he clicked “I accept” and when he did not timely opt out. Neureiter called the arbitration agreement “relatively short, with only eleven paragraphs over three pages,” saying it “plainly sets forth the opt-out procedure.” The court found that Google’s arbitration agreement is “valid and enforceable,” and because Nichols’ claims are within the scope of the agreement, he must be compelled to arbitrate.