February 24, 2020

February 24, 2020

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Reasonable Notice to Consumer Required for Enforcement of Arbitration Clause

Addressing an important contract-formation issue that has divided federal courts, the U.S. District Court for the Western District of Pennsylvania recently denied a company's motion to compel arbitration because the consumer was not given "reasonable notice" of the arbitration clause.

The court in Jones v. Samsung Electronics America, Inc. declined to enforce the arbitration clause because it was located in the "Manufacturer's Warranty" section of a 64-page "Important Information Booklet" contained in the phone's sales box. None of the Booklet's section headings referred to arbitration.

In Jones, the plaintiff, Brittany Jones, filed a class action against Samsung after her cell phone allegedly exploded and caught fire. Samsung moved to compel arbitration, relying in part on the U.S. Court of Appeals for the Seventh Circuit's 1997 decision in Hill v. Gateway 2000, Inc., which enforced an arbitration clause contained in the shipping box that stated purchasers had 30 days to return the computer if they did not want to arbitrate.

According to the Seventh Circuit, "[a] contract need not be read to be effective." Ms. Jones said she was unaware of the arbitration clause and its 30-day opt-out period at the time she bought the phone because the arbitration clause was inconspicuous and contained in a section of the Booklet dealing with warranties. She relied on the U.S. Court of Appeals for the Ninth Circuit's 2017 decision in Norcia v. Samsung Telecommunications America, Inc., which held that Samsung's arbitration clause was ineffective because the plaintiff did not receive adequate notice of its existence.

After reviewing these decisions and precedent of the U.S. Court of Appeals for the Third Circuit, the Jones court concluded that "[p]urchasers may be bound by what they have not read, but they may not be bound by what they cannot find, or what has been (negligently or by connivance) buried in the verbal underbrush."

The court emphasized that the arbitration agreement was never cited in the Booklet's section headings and was "tucked away in the section misleadingly titled 'Manufacturer's Warranty.'" According to the court, "[i]f Samsung had actually desired to make its customers aware of the Arbitration Agreement, it would have been simple to bring the point home more clearly."

The Jones court found the Seventh Circuit's Gateway decision was no longer the leading authority in this area, having been eclipsed by more recent decisions that "focus not on whether consumers had read waiver language, but on whether they received reasonable notice of the existence of the language."

Jones illustrates that even the best-drafted arbitration clause will not be enforced if the court perceives it to have been presented in a manner that would make it unlikely consumers would actually notice it.

Copyright © by Ballard Spahr LLP


About this Author

Kaplinksy, partner, New York, finance

Alan S. Kaplinsky is Co-Practice Leader of the firm's Consumer Financial Services Group, which has more than 115 lawyers. Mr. Kaplinsky devotes his practice exclusively to counseling financial institutions on bank regulatory and transactional matters, particularly consumer financial services law, and defending financial institutions that have been sued by consumers in individual and class action lawsuits and by government enforcement agencies. Visit Mr. Kaplinsky's profile in Wikipedia.

Mark Levin, Ballard Spahr Law Firm, Litigation Attorney

Mark J. Levin is known for his work in complex commercial, insurance, and class-action litigation, with particular experience in consumer finance litigation, the structuring and enforcement of consumer arbitration clauses, and the defense of insurance companies in class actions. He testified in 2007 for the lending industry before a subcommittee of the U.S. House Judiciary Committee at an oversight hearing on whether mandatory arbitration in consumer contracts is fair to consumers.

Mr. Levin has represented banks in defending against the first private class-action lawsuits under the Federal Trust Indenture Act, nuclear power plant owners in a year-long arbitration against an international insurance consortium, and school districts in a major funding lawsuit to recover state funds. He is currently involved in defending banks, other lending companies, and insurance companies in a wide variety of consumer class actions, including numerous class actions brought under the Pennsylvania Unfair Trade Practices and Consumer Protection Law.