DocketNumber: Case No: 8:18-cv-176-T-36JSS
Citation Numbers: 360 F. Supp. 3d 1289
Judges: Honeywell
Filed Date: 12/27/2018
Status: Precedential
Modified Date: 7/25/2022
This cause comes before the Court upon Defendant Best Rate Holdings, LLC's ("Best Rate") Motion to Compel Arbitration (Doc. 18), Plaintiff John Temple's ("Plaintiff") response in opposition (Doc. 25), Best Rate's reply in support of its motion (Doc. 30), Defendant Lending Tree, LLC's
In its motion, Best Rate argues that it and Plaintiff agreed to submit all issues, including gateway questions of arbitrability, to arbitration. Alternatively, Best Rate argues, if the Court determines that gateway questions of arbitrability are for the Court to decide instead of the arbitrator, then the Court should hold that arbitration is required pursuant to the agreement between Best Rate and Plaintiff. In response, Plaintiff argues that the agreement is not enforceable and that, even if it were, his claim falls outside the scope of arbitration.
In its motion, Lending Tree argues that it can also enforce Best Rate's and Plaintiff's agreement and compel arbitration because it is an intended third-party beneficiary. Alternatively, Lending Tree argues, Plaintiff should be estopped from avoiding arbitration with Lending Tree because Plaintiff's claim against Lending Tree is combined with his claim against Best Rate. Plaintiff disagrees with both contentions. The Court, having considered the motions and being fully advised in the premises, will grant the motions.
I. BACKGROUND
Plaintiff filed a single-count putative class action complaint against Best Rate and Lending Tree (collectively, "Defendants"), alleging violations of the Telephone Consumer Protection Act ("TCPA"), *1296
Plaintiff began receiving the text messages at issue in February 2017, after signing up to obtain information about a one-percent mortgage loan for military veterans advertised in an e-mail message from Defendants. Doc. 1 at ¶¶ 25, 27. To obtain more information about the one-percent offer, Plaintiff clicked on the link in the e-mail message. Doc. 1 at ¶¶ 25-26; Doc. 25 at p. 3. Plaintiff was taken to Best Rate's website, www.veteransvaloans.com. Doc. 18-1 at ¶ 6. Plaintiff followed various prompts on the website directing him to enter financial and contact information. Doc. 1 at ¶ 25-26; Doc. 25 at p. 3; Doc. 25-1 at pp. 2-7; Doc. 18-1 at ¶ 6. The website contained the following two paragraphs:
We take your privacy seriously. By clicking "GET A QUOTE", you agree to share your information with up to 4 participating lenders (potentially including Quicken Loans & Loan Depot), which may include the following lenders and partners regarding financial services and credit related offers and for them to contact you (including through automated means; e.g. autodialing, text and pre-recorded messaging) via telephone, mobile device (including SMS and MMS) and/or email, even if you are charged for the call or your telephone number is currently listed on any state, federal or corporate Do Not Call list. You agree that this consent is not a condition of purchase. That this is not a loan application and you are under no obligations.
By clicking "Get A Quote" you are accepting our Privacy Policy and Terms and Conditions.
Doc. 18-1 at p. 3. Clicking on the Terms and Conditions hyperlink (the "Terms and Conditions Hyperlink") would bring the website user to another page containing an agreement (the "Agreement") comprised of several paragraphs, including paragraph 19, the dispute resolution provision (the "Arbitration Provision"). Doc. 18-1 at pp. 2-3, 7, 14.
The Agreement provided, in pertinent part:
The following Terms and Conditions are inclusive of the Best Rate Referrals Privacy Policy ("Privacy Policy"), the Best Rate Referrals Disclosures, Disclaimers and Licenses ("Disclosures, Disclaimers and Licenses") and any and all other applicable operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the "Agreement").
...
THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
...
19. Dispute Resolution Provisions . The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the *1297laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York, New York, in accordance with the then current Commercial Arbitration rules of the American Arbitration Association; and (b) you agree to fist commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice ("Final Settlement Offer"). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in your county of residence, by filing a separate Demand for Arbitration, which is available Here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys' fees that your attorney accrued. ... Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys' fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Company and/or its employees, officers, directors, members, representatives and/or assigns.
Doc. 18-1 at pp. 7, 14-15 (emphasis in original).
After visiting the website
Plaintiff continued to receive identical or nearly identical text messages approximately once per week. Doc. 1 at ¶ 28. Plaintiff decided to opt out of receiving the text messages, and replied to the text messages *1298with the word "STOP" or "Stop" multiple times. Doc. 1 at ¶¶ 31-33. Defendants continued to send Plaintiff text messages despite Plaintiff's efforts. Doc. 1 at ¶¶ 32-33.
On January 22, 2018, Plaintiff filed the instant putative class action complaint against Defendants. Doc. 1 at ¶¶ 47-51. In response, Defendants each filed motions to compel arbitration.
II. LEGAL STANDARD
The Federal Arbitration Act ("FAA") provides that written agreements to arbitrate "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
Section 4 of the FAA provides that:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any... district court which, save for such agreement, would have jurisdiction... for an order directing that such arbitration proceed in the manner provided for in such agreement.
III. DISCUSSION
A. Delegation
In its motion, Best Rate contends that the Arbitration Provision includes a delegation clause, which gives the arbitrator-not the Court-the power to determine whether the instant dispute is subject to arbitration in the first instance. The Court disagrees.
Gateway questions of arbitrability, such as whether the parties have agreed to arbitrate or whether their agreement to arbitrate covers a particular controversy, may, themselves, be subject to arbitration. Rent-A-Ctr., W., Inc. v. Jackson ,
With respect to delegation clauses, the United States Supreme Court has qualified that courts "should not assume that the parties agreed to arbitrate arbitrability unless there is 'clear and unmistakable' evidence that they did so." First Options ,
Utilizing these principles, courts applying New York law
However, under New York law, simple reference to the American Arbitration Association ("AAA") rules is insufficient to constitute "clear and unmistakable" language evincing an intent to have an arbitrator decide arbitrability where the arbitration provision is "narrow" rather than "broad." Zachariou v. Manios ,
A broad arbitration provision is one that, "taken as a whole, evidences the parties' intent to have arbitration serve as the primary recourse for disputes connected to the agreement containing the clause." Arshad v. Transp. Sys., Inc. ,
A narrow arbitration provision, on the other hand, includes language that suggests "arbitration was designed to play a more limited role in any future disputes." Arshad ,
Here, the parties do not dispute that the Arbitration Provision references AAA rules, which, in turn, provide the arbitrator with the power to determine arbitrability.
Best Rate points to two sentences in the Agreement in an effort to bolster its argument that the Arbitration Provision is broad and, therefore, that a valid delegation clause exists. First, Best Rate reproduces a portion of the Arbitration Provision itself, stating: "Should a dispute arise concerning the... terms and conditions of the Agreement or the breach of same by any party hereto... the parties agree to submit their dispute for resolution by arbitration before the [AAA]." Doc. 18 at pp. 5-6 (bold emphasis deleted, italic emphasis added).
Rather than support Best Rate's argument, however, careful reading of the Arbitration Provision, as reproduced by Best Rate, requires the conclusion that the Arbitration Provision is narrow. The Arbitration Provision applies to a specific part of the Agreement-the terms and conditions-not the entirety of the Agreement. Unlike the broad arbitration provisions discussed supra , the Arbitration Provision here does not provide sweeping language, for example, that the parties are subject to arbitration based on any dispute or controversy "arising with respect to this agreement," Contec ,
*1301Moreover, Best Rate's reproduction of the Arbitration Provision omits additional limiting language. Read more fully, the Arbitration Provision provides that the parties agree to submit their claims for arbitration "[s]hould a dispute arise concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto." Doc. 18-1 at p. 14 (bold emphasis deleted, italic emphasis added). Read in context, the Arbitration Provision limits arbitration to disputes concerning a list of specific items-the Site Offerings, the terms and conditions of the Agreement, or the breach of same-lending further weight to the conclusion that the Arbitration Provision is narrow rather than broad.
Further review of the Arbitration Provision also supports the conclusion that it is narrow rather than broad. In the same paragraph, the Arbitration Provision states: "Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration." Doc. 18-1 at p. 15. Accordingly, the Arbitration Provision, "taken as a whole," does not evidence "the parties' intent to have arbitration serve as the primary recourse for disputes." Arshad ,
The other sentence in the Agreement that Best Rate points to in support of its contention that the Arbitration Provision is broad and presents a valid delegation clause is located on the first page of the Agreement and is set apart from the Arbitration Provision. It states: "The Agreement contains...the requirement to arbitrate any and all claims that may arise hereunder." Doc. 18-1 at p. 7 (emphasis deleted). Indeed, this sentence (the "introductory sentence") is more like the broad arbitration provisions found in Contec and New Avex. But the introductory sentence is also set apart from the Arbitration Provision by more than twenty paragraphs. See Doc. 18-1 at pp. 7-16. Rather than set forth any specific rules regarding arbitration, the introductory sentence merely foreshadows the Agreement's contents.
Even if the introductory sentence was relevant, however, its consideration would not change the finding here that the Agreement does not contain a valid delegation clause. The Second Circuit previously had the opportunity to analyze the effect of two inconsistent arbitration provisions in one agreement. Katz v. Feinberg ,
[W]e cannot conclude that in this case where a single agreement contains both a broadly worded arbitration clause and a specific clause... that the parties' intention to arbitrate questions of arbitrability under the broad clause remains clear. We find the presence of both these clauses creates an ambiguity, which, under First Options , requires us to assign questions of arbitrability to the district court, not the arbitrator.
When the introductory sentence is considered here, the result is the same: one part of the Agreement suggests the scope of arbitration is broad, while another part specifically limits arbitration to certain topics. Applying the reasoning in Katz , the Court could conclude only that the *1302Agreement is ambiguous with respect to arbitration and, therefore, that there is not evidence of the parties' clear and unmistakable intent to designate the question of arbitrability to the arbitrator.
Because the Arbitration Provision is narrow, or, alternatively, because it is ambiguous, there is not clear and unmistakable evidence that the parties agreed to arbitrate arbitrability. First Options ,
B. Enforcement
Having determined that the Court must decide issues of arbitrability, the Court turns to the parties' other arguments. Plaintiff argues that the Arbitration Provision is unenforceable, and that he cannot be compelled to arbitrate his claim, for two reasons: first, because the Agreement is a browsewrap agreement and second, because the Agreement is unconscionable. The Court addresses each of Plaintiff's contentions in turn below.
1. Browsewrap
Where one party offers terms of a contract to another, "unequivocal acceptance of the terms by the receiving party is required." Berkson v. Gogo LLC ,
Contracts available on the internet come in different forms. Two such forms include "clickwrap" agreements and "browsewrap" agreements. Berkson ,
In contrast, browsewrap agreements require a less active role by the website user.
To be valid, a browsewrap agreement must give at least reasonable, constructive, or inquiry notice of the website's terms to the user, and the user must exhibit "unambiguous assent" to the terms.
Courts will not enforce browsewrap agreements where the link to the website's terms are "buried at the bottom of the page or tucked away in obscure corners of the website where users are unlikely to see it."
But, courts have enforced browsewrap agreements where hyperlinks to terms are conspicuous. Nguyen ,
The Southern District of New York upheld such a "hybrid" agreement in Fteja v. Facebook, Inc .,
Holding that Facebook's sign-up procedure gave the user reasonable notice of the terms of service, the court explained that the agreement was "somewhat like a browsewrap agreement in that the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else-click 'Sign Up'-to assent to the hyperlinked terms."
Plaintiff argues that the Arbitration Provision here is unenforceable because it is part of a browsewrap agreement that could be found only by clicking on the Terms and Conditions Hyperlink located below the "Get a Quote" button. Plaintiff submits that-like in Specht and Herman -a user could enter all of the required information and click the "Get a Quote" button without ever seeing the Terms and Conditions Hyperlink to the Agreement. In support, Plaintiff attaches to its response various undated screenshots of the website, showing the Terms and Conditions Hyperlink located below the "Get a Quote" button.
Best Rate disputes that the Terms and Conditions Hyperlink was located below the "Get a Quote" button, as Plaintiff describes, at the time Plaintiff visited the website. Best Rate offers evidence that the website was revised on March 21, 2018, after Plaintiff visited it. Although the Terms and Conditions Hyperlink now appears below the "Get a Quote" button, as Plaintiff describes, the website setup was different on the date Plaintiff visited the website and entered his information. Doc. 30-1 at ¶¶ 5-7. In support, Best Rate attaches the declarations of Zach South, Senior Vice President of Mortgage Operations for Best Rate. Doc. 18-1; Doc. 30-1. South avers that on the date Plaintiff visited the website, October 30, 2016, the Terms and Conditions Hyperlink was "prominently displayed and located directly above the 'Get a Quote' button that a user clicks to complete his/her registration." Doc. 30-1 at ¶ 5. The declarations provide an image of a "regenerated HMTL representation" of what the webpage looked like at the time Plaintiff registered. Doc. 30-1 at ¶ 6. That image, in turn, shows that the Terms and Conditions Hyperlink was located above the "Get a Quote" button. Doc. 30-1 at ¶ 6.
Upon careful review of Best Rate's evidence concerning the placement of the Terms and Conditions Hyperlink,
Moreover, given Best Rate's evidence, the issues present in Specht and Herman concerning submerged or hidden text are not present here. Here, the Terms and Conditions Hyperlink was located above the "Get a Quote" button-thus, Plaintiff must have brought the Terms and Conditions Hyperlink within his line of vision *1305before viewing and proceeding to click the "Get a Quote" button.
The Terms and Conditions Hyperlink was placed in a manner conspicuous enough to provide reasonable notice to a prudent user, thereby requiring the user to affirmatively acknowledge the Terms and Conditions Hyperlink to the Agreement before proceeding. Because the website provided reasonable notice of the Agreement, it is enforceable.
2. Unconscionability
The doctrine of unconscionability is an equitable doctrine "intended to be sensitive to the realities and nuances of the bargaining process." Gillman v. Chase Manhattan Bank, N.A. ,
a. Procedural Unconscionability
"The procedural element of unconscionability requires an examination of the contract formation process and the alleged lack of meaningful choice."
Plaintiff's argument that he had no bargaining power in the formation of the Agreement, and that the terms were presented to him on an impermissible take-it-or-leave-it basis, is unavailing. "[T]he fact [that] an arbitration agreement is presented on a take-it-or-leave-it basis is not sufficient under New York law to render the [arbitration] provision procedurally unconscionable." Epstein Becker & Green, P.C. v. Brown , No. 10 Civ. 4784 (LTS)(JCF),
b. Substantive Unconscionability
It is only in "exceptional cases where a provision of [a] contract is so outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone." Gillman ,
Determining whether a contract is substantively unconscionable requires review of the contract's content. See
Plaintiff argues the Agreement is substantively unconscionable because the provisions are drawn in favor of Best Rate. Plaintiff points to the following: (1) the class action waiver, which prohibits only plaintiff, but not Best Rate, from filing or participating in a class action lawsuit; (2) the provision allowing Best Rate to recover attorney's fees it incurs in seeking injunctive relief against consumers who attempt to participate in class action lawsuits; and (3) the provision allowing Best Rate to seek attorney's fees from consumers if the arbitrator determines the consumer's claim was frivolous.
Plaintiff does not cite any case law in support of his argument that the class action waiver is procedurally unconscionable. To the extent Plaintiff argues the class action waiver is procedurally unconscionable solely because it is a class action waiver, his argument fails. Tsadilas ,
Moreover, the fact that an arbitration provision may not be entirely reciprocal does not equate to a finding of unconscionability. In re Conifer Realty LLC ,
Plaintiff's attempt to draw factual distinctions between this case and AT & T Mobility LLC v. Concepcion also fails. Concepcion , which held that the FAA preempted a California law that allowed consumers to demand classwide arbitration, dealt with a cellular telephone contract that prohibited classwide arbitration.
C. Scope
1. Generally
Having determined that the Arbitration Provision is enforceable, the Court turns *1307to Plaintiff's argument that he should not be compelled to arbitrate because his claim does not fit within the scope of the Arbitration Provision.
Courts apply general principles of contract interpretation to assess whether a particular claim fits within the scope of an arbitration provision. Centocor, Inc. v. Kennedy Inst. of Rheumatology , No. 08 Civ. 8824 (DC),
Pursuant to the Arbitration Provision, the parties agreed to arbitrate: "[s]hould a dispute arise concerning the Site Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto." Doc. 18-1 at p. 14 (emphasis deleted). "Site Offerings" is defined in the Agreement as the " 'Contact Services'... together with the Site, Content, and Interactive Services." Doc. 18-1 at p. 7. "Contact Services" includes a website user's utilization of "the various contact forms and/or contact information made available on the Site as a means to contact directly, or request to be contacted by, Company and/or Company's third-party mortgage and/or home loan-related product and/or service providers." Doc. 18-1 at p. 7.
Plaintiff argues that his claim does not fit within the intended scope of arbitration because it does not concern the "Contact Services." Rather, Plaintiff argues, his claim-Defendants' failure to stop sending him text messages after he replied "stop"-occurred months after Plaintiff visited the website and does not "concern his use of the website at all." Doc. 25 at p. 11. Plaintiff's argument is strained, at best. Plaintiff's Complaint states that he entered his contact information in the fields on the website to "learn more" about mortgage products. Doc. 1 at ¶ 26. Plaintiff received the alleged contact from Defendants as a result of providing his information and assenting to the terms of the Agreement. Indeed, the text on the website above the "Get a Quote" button informed Plaintiff that entering his contact information and clicking "Get a Quote" would mean he agreed to share his information with lenders and agreed to be contacted by them. Doc. 18-1 at p. 3. Defendants' alleged text messages to Plaintiff were clearly precipitated by Plaintiff's utilization of a contact form on the website, a feature described in the Agreement as part of the "Contact Services." Plaintiff offers no other explanation for why he would receive such contact. The "Contact Services," which are part of the "Site Offerings," are subject to arbitration pursuant to the Arbitration Provision.
2. Injunctive relief
Plaintiff contends that even if the Court sends this action to arbitration, it should maintain jurisdiction to adjudicate his claim for injunctive relief. In support, Plaintiff points to the part of the Arbitration Provision stating: "Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration." Doc. 18-1 at p. 15.
Best Rate argues that Plaintiff is not entitled to injunctive relief because it has not sent any text messages to Plaintiff since becoming aware of the Complaint. Accordingly, Best Rate argues, Plaintiff lacks standing to pursue injunctive relief because there is no real or immediate threat of receiving another text message. But whether Plaintiff has standing to bring or would prevail on a claim for injunctive relief is not before the Court at this time.
*1308Instead, the only issue before the Court is whether, and to what extent, this action should be referred to arbitration.
Notably, there are no injunction motions pending before the Court in this case. And, although the Arbitration Provision preserves the parties' rights to seek injunctive relief, it does not specify how a party may seek injunctive relief. That is, the Arbitration Provision does not specify that a party has a right to seek injunctive relief from a court. And, the Commercial Arbitration rules of the AAA, referenced in the Arbitration Provision, specifically empower the arbitrator to "take whatever interim measure he or she deems necessary, including injunctive relief." Am. Arbitration Ass'n, Commercial Arbitration Rules, at p. 24 (2013), https://adr.org/sites/default/files/CommercialRules_Web.pdf. Thus, there is no basis for the Court to decide that it is better suited to adjudicate a claim for injunctive relief than the arbitrator.
Given the lack of any pending motions for injunctive relief before the Court, that Plaintiff's claim fits within the scope of arbitration, and the federal presumption in favor of arbitrability, the Court finds it appropriate for the arbitrator to determine the imposition of injunctive relief.
D. Non-Signatory
Lending Tree also seeks to compel arbitration. Lending Tree argues it has authority to do so, despite not being a signatory to the Agreement, for two reasons. First, Lending Tree argues, it may enforce the Arbitration Provision because it is a third-party beneficiary of the Agreement. Second, Lending Tree argues, it may enforce the Arbitration Provision under an estoppel theory.
Lending Tree cites to a number of cases
Courts in the Second Circuit that have permitted non-signatories to compel signatories to arbitrate generally do so under an estoppel theory. Ross v. Am. Exp. Co. ,
We have held that, in addition to estoppel, the common law principles of incorporation by reference, assumption, agency, and veil-piercing/alter ego may be utilized when a signatory moves to compel arbitration with a non-signatory to a contract containing an arbitration agreement. Where, however, as here, a non-signatory moves to compel arbitration with a signatory, it remains an open question in this Circuit whether the non-signatory may proceed upon any theory other than estoppel.
Ross ,
Thus, it is Lending Tree's second argument-that it, a non-signatory, may enforce the Arbitration Provision against Plaintiff, a signatory, under an estoppel theory-that is the primary focus of the Court's analysis. Moreover, because the Court finds that Plaintiff may be compelled to arbitrate with Lending Tree on the basis of estoppel, the Court need not consider whether Lending Tree's third-party beneficiary argument has merit. Moss ,
A non-signatory may enforce an arbitration provision against a signatory under an estoppel theory when "the relationship among the parties, the contracts they signed..., and the issues that had arisen among them discloses that the issues the non[-]signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed." Denney v. BDO Seidman LLP ,
Both circumstances must exist for a non-signatory to successfully compel arbitration under an estoppel theory. Ross ,
1. The Subject Matter of the Underlying Agreement
Determining whether a signatory's claims arise under the subject matter of the underlying agreement necessarily requires a review of the content of the underlying agreement. In re A2P SMS Antitrust Litigation ,
Here, Plaintiff's claim clearly arises under the subject matter of the Arbitration Provision. As discussed supra , the Arbitration Provision includes the requirement to arbitrate disputes concerning a website user's utilization of the Contact Services-"the various contact forms and/or contact information made available on the Site as a means to contact directly, or request to be contacted by, Company and/or Company's third-party mortgage and/or home loan-related product and/or service providers." Doc. 18-1 at p. 7. Plaintiff's claim against Lending Tree concerns Lending Tree's contact of Plaintiff, which occurred as a result of Plaintiff utilizing the website's Contact Services.
Moreover, the Second Circuit has held that where the dispute (1) between the signatories and (2) between a signatory and a non-signatory are the same, the first prong may be satisfied. See Ragone v. Atl. Video at Manhattan Ctr. ,
2. The Relationship Among the Parties
The second prong of the "intertwined-ness test" requires a court to "carefully scrutinize the relationship between the non-signatory seeking enforcement... and the actual signatories to the agreement." Centocor ,
Courts have held that relationships are sufficiently intertwined where the non-signatory party is "linked textually" to the underlying contract, Choctaw Generation Ltd. P'ship v. Am. Home Asur. Co. ,
Here, it may be said that Lending Tree was "linked textually" to the Arbitration Provision. The Arbitration Provision concerns a website user's utilization of forms to contact, or request to be contacted by, Best Rate's "third-party mortgage and/or home loan-related product and/or service providers" (the "Third Party Mortgage Service Providers"). Doc. 18-1 at p. 7. Throughout the Agreement, including the paragraph describing the Contact Services, Best Rate advises that it "does not itself provide any underlying mortgage and/or home loan-related products and/or services." Doc. 18-1 at p. 9. Rather, such potential services are offered by Best Rate's Third Party Mortgage Service Providers. Doc. 18-1 at p. 9. Accordingly, Plaintiff was on notice that his utilization of the website contact forms and simultaneous consent to the Agreement would not merely create a relationship between Plaintiff and Best Rate, but would also subject Plaintiff to potential relationships with a defined group of third parties, including, resultantly, Lending Tree.
Even if Lending Tree was not "linked textually" to the Arbitration Provision because it was not specifically named, Plaintiff reasonably should have known the potential involvement of the defined group of third parties. See Ragone ,
This conclusion that Plaintiff should be estopped from avoiding arbitration with Lending Tree comports with the general principle of estoppel theory, in the context of compelling arbitration, as articulated by the Second Circuit.
In each case [employing the estoppel theory], the promise to arbitrate by [signatory 1], the entity opposing arbitration, was reasonably seen on the basis of the relationships among the parties as extending not only to [signatory 2], its contractual counterparty, but also to [the non-signatory], an entity that was, or would predictably become, with [signatory 1's] knowledge and consent, affiliated or associated with [signatory 2] in such a manner as to make it unfair to allow [signatory 1] to avoid its commitment to arbitrate on the ground that [the non-signatory] was not the very entity with which [signatory 1] had a contract. The estoppel did not flow merely from [signatory 1's] agreement to arbitrate with someone [signatory 2] in disputes relating to the agreement. It flowed rather from the conclusion that the relationships among the parties developed in a manner that made it unfair for [signatory 1] to claim that its agreement to arbitrate ran only to [signatory 2] and not to [the non-signatory].
Centocor ,
*1312In short, this is not a case where a non-signatory is a "complete stranger" to a contract. Ross ,
As a final matter, the Second Circuit has held in at least one case that a plaintiff who alleges that a signatory and non-signatory acted in concert cannot then claim a lack of the requisite close relationship. Denney ,
E. Stay
Best Rate and Lending Tree request that the Court stay this action pending the conclusion of arbitration. Pursuant to § 3 of the FAA,
If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.
The Court will stay this proceeding pending the arbitration of Plaintiff's claim.
IV. CONCLUSION
Because the Arbitration Provision does not contain a valid delegation clause under New York law, the Court decides issues of arbitrability. After careful review, the Court holds that the Agreement and Arbitration Provision are enforceable and that Plaintiff's claim fits within the scope of the Arbitration Provision. Therefore, Plaintiff's claim is subject to arbitration. Moreover, given the relationship among the three parties, Plaintiff is also compelled to arbitrate his claim with Lending Tree. Therefore, Best Rate's and Lending Tree's motions will be granted.
*1313Accordingly, it is hereby ORDERED that:
1. Defendant Best Rate's Motion to Compel Arbitration (Doc. 18) is GRANTED .
2. Defendant Lending Tree's Motion to Compel Arbitration and Stay Proceedings (Doc. 20) is GRANTED.
3. Plaintiff is compelled to arbitrate his claims against Defendants Best Rate and Lending Tree as asserted herein.
4. This action is STAYED pending the completion of arbitration. The parties shall file a notice informing the Court that the arbitration has been concluded, or that their dispute has otherwise been resolved, within FOURTEEN (14) DAYS of either of such event and immediately dismiss this case, if appropriate.
5. The Clerk is directed to terminate all pending motions and deadlines and administratively close this case.
DONE and ORDERED in Tampa, Florida on December 27, 2018.
Lending Tree suggests that Plaintiff intended to name Lending Tree, LLC rather than Lending Tree, Inc. Doc. 20.
Best Rate avers that Plaintiff visited the website and registered to receive information on October 30, 2016. Doc. 18-1 at ¶ 6.
The Agreement states that it "shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles)." Although the parties alternatively cite to Florida law, see doc. 18 and doc. 20, they do not attempt to explain why the Court should consider Florida law.
The Arbitration Provision provides that the parties "agree to submit their dispute for resolution by arbitration before the [AAA] in New York, New York, in accordance with the then current Commercial Arbitration rules of the [AAA]." Doc. 18-1 at pp. 7, 14 (emphasis deleted). The Commercial Arbitration Rules of the AAA in effect on the date Plaintiff visited the website, in turn, provide that: "The arbitrator shall have the power to rule on his or her own jurisdiction, including... the arbitrability of any claim or counterclaim." Am. Arbitration Ass'n, Commercial Arbitration Rules, at p. 13 (2013), https://adr.org/sites/default/files/CommercialRules_Web.pdf.
"[C]ourts have consistently enforced browsewrap agreements where the user had actual notice of the agreement." Nguyen ,
Other than the allegations in his response, Plaintiff does not provide any evidence regarding the placement of the Terms and Conditions Hyperlink on the date he visited the website. Best Rate, on the other hand, has provided evidence of the placement of the Terms and Conditions Hyperlink in the form of declarations. See Plazza ,
Lending Tree agrees that New York law applies to this dispute, yet cites both New York and Florida law throughout its motion and reply "to demonstrate that New York and Florida law are consistent." Doc. 20 at p. 6. Because New York law applies, the Court does not weigh Lending Tree's citations to Florida law.