Glikin v. Major Energy Elec. Servs. LLC ( 2022 )

21-3097-cv
Glikin v. Major Energy Elec. Servs. LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 2nd day of December, two thousand twenty-two.
4
5 Present:
6 GERARD E. LYNCH,
7 EUNICE C. LEE,
8 BETH ROBINSON,
9 Circuit Judges.
10 _____________________________________
11
12 ANGELA GLIKIN, on behalf of herself and all others
13 similarly situated,
14
15 Plaintiff-Appellee,
16
17 v. 21-3097-cv
18
19 MAJOR ENERGY ELECTRIC SERVICES LLC,
20
21 Defendant-Appellant.
22 _______________________________
23
24 For Plaintiff-Appellee: D. GREGORY BLANKINSHIP, Finkelstein, Blankinship,
25 Frei-Pearson & Garber, LLP, White Plains, New York
26 (J. Burkett McInturff, Wittels McInturff Palikovic,
27 Armonk, New York, on the brief).
28
29 For Defendant-Appellant: Kevin P. Allen and Thomas E. Sanchez, on the brief,
30 Duane Morris LLP, Pittsburgh, Pennsylvania.
1
1 Appeal from the United States District Court for the Southern District of New York
2 (Briccetti, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the order of the district court is AFFIRMED.
5 Plaintiff-Appellee Angela Glikin brought this putative class action alleging that Defendant-
6 Appellant Major Energy Electric Services LLC (“Major”) deceived its customers and overcharged
7 them for electricity. Major now appeals the district court’s order denying its motion to stay the
8 action pending arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 3. See Glikin v.
9 Major Energy Elec. Servs., LLC, 2021 WL 5909138 (S.D.N.Y. Dec. 13, 2021). We assume the
10 parties’ familiarity with the underlying facts, procedural history, and issues and arguments on
11 appeal.
12 This Court applies de novo review to a district court’s denial of a motion to stay an action
13 pending arbitration. Adams v. Suozzi, 433 F.3d 220, 226 (2d Cir. 2005). Section 3 of the FAA
14 requires a district court to stay proceedings “when all of the claims in an action have been referred
15 to arbitration and a stay requested.” Katz v. Cellco P’ship, 794 F.3d 341, 346 (2d Cir. 2015). To
16 determine whether a valid agreement to arbitrate exists, courts look to ordinary state-law
17 principles. Zachman v. Hudson Valley Fed. Credit Union, 49 F.4th 95, 101 (2d Cir. 2022). The
18 parties and the district court agree that Maryland law applies.
19 Major argues that the district court erred in concluding that Glikin did not receive sufficient
20 and effective notice of a purported contractual modification, which included an arbitration
21 provision and class action waiver. We disagree. Glikin’s original contract stated that she would
22 receive “written notification of the renewal terms at least 45 days prior to the renewal date” and
23 “30 days advance written notice of any material change to the Agreement.” App’x at 78. The July
2
1 21, 2016 mailing, which Major claims modified Glikin’s original contract, consisted of a letter
2 stating that Glikin’s contract would expire on September 7, 2016, and informing her that she could
3 (1) choose a new electricity rate online, (2) select a new plan by phone, or (3) “Do Nothing!”—in
4 which case her account would “automatically renew on a month to month variable rate plan.”
5 App’x at 88. The mailing also included a four-page, fine-print document titled “Maryland
6 Residential and Small Commercial Disclosure Statement and Terms of Service,” which included
7 an arbitration provision and class action waiver. App’x at 90–94. The letter made no reference to
8 those enclosed terms of service.
9 Under Maryland law, “where a party voluntarily included a notice of changes provision in
10 a customer agreement it authored and had unilateral authority to amend,” the authoring party’s
11 failure to comply with the notice provision cannot establish a valid contractual modification.
12 DIRECTV, Inc. v. Mattingly, 829 A.2d 626, 636–37 (Md. 2003). In DIRECTV, Maryland’s highest
13 court specifically rejected the argument advanced by Major that merely enclosing a copy of the
14 text of the new agreement was sufficient to comply with the notice provision. Major argues that
15 DIRECTV is distinguishable because the contract in DIRECTV required “written notice describing
16 the change,” DIRECTV, 829 A.2d at 628 (emphasis in original), whereas Glikin’s contract required
17 simply “written notice of any material change,” App’x at 78 (emphasis added). We need not
18 address whether Major was required to provide a detailed description of the changes in the contract
19 because Major failed to provide any notice of a material change in the first place. Relying on the
20 dictionary definitions of “notice” and “describe,” the DIRECTV court concluded that the contract
21 there required, “in writing, information or a warning [notice] that would convey an image or
22 impression in words designed to reveal [describe] the content of the new modifications . . . that
23 w[ere] different from what the initial . . . agreement stated.” DIRECTV, 829 A.2d at 634 (internal
3
1 quotation marks omitted). In other words, DIRECTV agreed to let the customer “know when a
2 change occurred and what that changed entailed.” Id. (emphasis omitted). Here, Major’s letter
3 neither informed Glikin that the attached contract was modified nor warned her to review the
4 contract for changes. Regardless of any potential need for a detailed description, Major failed to
5 let Glikin “know when a changed occurred.” Id. Because the Maryland Court of Appeals has
6 explained that merely attaching a contract is insufficient written notice, accepting Major’s position
7 “would be the practical equivalent of writing the notice [of any material change] provision out of
8 the customer agreement.” Id. at 637. Since the July 21, 2016 mailing did not effect a valid
9 contractual modification so as to subject Glikin to the mandatory arbitration clause or class waiver
10 provision, the district court did not err in denying Major’s motion to stay the action pending
11 arbitration.
12 We have considered Major’s remaining arguments and find them to be without merit.
13 Accordingly, we AFFIRM the order of the district court.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
4