Bolling v. Bobs Discount Furniture, LLC

Filing 21

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION: For the reasons stated in the attached memorandum and order, Magistrate Judge James M. Wicks' Report and Recommendation 18 is ADOPTED in part as the opinion of the Court. Defendant 9;s motion to compel arbitration and stay the proceedings 12 is GRANTED. The Court orders this matter STAYED pending arbitration. The parties shall submit a status letter on or before April 26, 2024. Ordered by Judge LaShann DeArcy Hall on 3/27/2024. (CG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BETTY BOLLING, individually and on behalf of
all others similarly situated,
Plaintiff,
v.

MEMORANDUM AND ORDER
ADOPTING REPORT AND
RECOMMENDATION
22-cv-6312 (LDH) (JMW)

BOBS DISCOUNT FURNITURE, LLC,
Defendant.
LASHANN DEARCY HALL, United States District Judge:

Betty Bolling, individually and on behalf of all others similarly situated (“Plaintiff”)
commenced this action against Bobs Discount Furniture, LLC (“Defendant”), alleging violations
of New York General Business Law §§ 349 and 350, the Magnuson Moss Warranty Act, 15
U.S.C. §§ 2301, et seq., state consumer fraud acts, and breaches of warranties. Defendant moves
to compel arbitration and stay this proceeding. (Mot. to Compel, ECF No. 12.)
BACKGROUND
On February 24, 2022, Plaintiff purchased a sofa and accompanying “Goof Proof”
protection plan from Defendant’s website. (Compl. ¶ 26, ECF No. 1.) That August, Plaintiff
submitted a claim for her sofa under the protection plan because a cushion had suffered an
accidental tear. (Id. ¶ 27.) Defendant denied the claim, stating the protection plan does not
cover “[s]eam separation, stress tears.” (Id. ¶ 28.) Plaintiff contends the tear should be classified
under “[a]ccidental rips, cuts and punctures,” which the protection plan expressly covers. (Id. ¶¶
28–29.) Accordingly, Plaintiff brought this putative class action, alleging that Defendant denies
claims brought under the “Goof Proof” protection plan “based on customer misuse, even where
that misuse may have occurred unintentionally, and is unexpected or unforeseen, which is the
definition of an accident.” (Id. ¶ 8.) In addition, Plaintiff claims the “lengthy list” of exclusions
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under the protection plan “is only disclosed to consumers after purchasing Goof Proof, when
they receive the full agreement by mail or email.” (Id. ¶ 12.) On August 16, 2023, Defendant
filed a motion to compel arbitration and stay this proceeding, which the Court referred to
Magistrate Judge James M. Wicks.
On November 29, 2023, Judge Wicks issued a report and recommendation (the “R&R”)
recommending that the motion to compel be granted. (ECF No. 18.) The terms and conditions
of the Goof Proof contract includes an arbitration clause that reads in relevant part:
ARBITRATION: If We cannot resolve any disputes with You related to the Plan,
including claims, YOU AND WE AGREE TO RESOLVE THOSE DISPUTES
THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT
INSTEAD OF THROUGH COURTS OF GENERAL JURISDICTION.
FURTHER, YOU AND WE AGREE TO WAIVE OUR RIGHTS TO A
TRIAL BY JURY AND NOT TO PARTICIPATE IN ANY CLASS
ARBITRATIONS OR CLASS ACTIONS. This Plan is evidence of a transaction
in interstate commerce and the Federal Arbitration Act applies to and governs the
enforcement of any arbitration hereunder. The provisions of this Arbitration section
shall survive the termination of this Plan. YOU AND WE UNDERSTAND AND
AGREE THAT, BECAUSE OF THIS PROVISION, NEITHER YOU NOR
WE WILL HAVE THE RIGHT TO GO TO COURT EXCEPT AS
PROVIDED ABOVE OR TO HAVE A JURY TRIAL OR TO PARTICIPATE
AS ANY MEMBER OF A CLASS OF CLAIMANTS PERTAINING TO ANY
CLAIM.
(R&R at 4.) And once users purchase the “Goof Proof” protection plan, they are emailed the
following clause regarding compulsory arbitration and waiver of class actions:
Any controversy or claim between you and Bob’s arising out of, or relating to, this
agreement or any products or services purchased from Bob’s shall be resolved by
arbitration administered by the American Arbitration Association pursuant to its
Consumer Arbitration Rules, and judgment on the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof. You agree to waive your
right to have a judge or jury decide your claim. You and Bob’s further agree to
bring any claim on an individual basis only. Neither you nor Bob’s will serve as a
class representative, join as a class member, or otherwise participate as a plaintiff
in any class, mass, consolidated, or private attorney general action or arbitration.

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(Id.) Judge Wicks found that prior to purchasing the “Goof Proof” protection plan, customers
are “permitted,” but not required, to review the terms and conditions in the “Goof Proof”
contract. (Id. at 3.) Accordingly, Judge Wicks concluded that the arbitration clause created a
binding agreement to arbitrate because Plaintiff had adequate notice of its terms, the terms were
reasonably conspicuous, and Plaintiff manifested assent by having access to the terms but
nonetheless completing the transaction. (Id. at 8–17.) In so finding, Judge Wicks rejected
Plaintiff’s argument that the terms failed to incorporate by reference the arbitration agreement,
because the “Goof Proof” contract and sales receipt already had their own arbitration provisions.
(Id. at 17–18.) Judge Wicks next rejected the argument that the arbitration agreement was
unconscionable, finding that Plaintiff failed to present facts indicating she was incapable of
understanding the terms, and that she assented to them online outside the presence of any
pressuring employees. (Id. at 19–20.) Finally, Judge Wicks found the present dispute to fall
within the arbitration provision. (Id. at 21.) Plaintiff timely objected on December 13, 2023.
(Pl.’s Objs. To R&R (“Pl.’s Objs.”), ECF No. 19.)
STANDARD OF REVIEW
When deciding whether to adopt a report and recommendation, a district court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). The Court conducts a de novo review of those
portions of a report and recommendation to which a party submits a timely objection. Id. Where
there are no objections to portions of the report, the district court “‘need only satisfy itself that
there is no clear error on the face of the record.’” Estate of Ellington ex rel. Ellington v.
Harbrew Imports Ltd., 812 F. Supp. 2d 186, 189 (E.D.N.Y. 2011) (quoting Urena v. New York,
160 F. Supp. 2d 606, 609–10 (S.D.N.Y. 2001)).

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DISCUSSION
Plaintiff objects to the R&R finding that Plaintiff was placed on notice of the arbitration
agreement and that she manifested assented thereto. (Pl.’s Objs. at 3–7.) The Court disagrees.
As Judge Wicks found, Plaintiff had ample notice of the arbitration provision. (R&R at
10.) Before purchasing the “Goof Proof” protection plan, customers are presented with a table of
pricing options that includes—centered and in large font at the bottom of the screen—a hyperlink
that reads “See Terms and & Conditions”:

See (id. at 3.) Though parties are not required to click the hyperlink to proceed, doing so reveals
the full terms and conditions. (Id. at 3–4.) Because Plaintiff easily could have reviewed the full
terms by clicking “See Terms and & Conditions,” displayed conspicuously at the bottom of the
purchase page, she received sufficient notice of the arbitration clause. See (id. at 3, 10);
Edmundson v. Klarna, Inc., 85 F.4th 695, 707 (2d Cir. 2023) (website provided reasonably
conspicuous notice of terms, including mandatory arbitration provision, where the interface was
“uncluttered” and provided “only one button to click”). That Plaintiff failed to review the terms
does not unbind her from them because, as Judge Wicks found, “[t]he onus was on Plaintiff to
review the terms and conditions before purchasing to ensure she agreed with them before
completing the transaction.” (R&R at 12); Edmundson, 85 F.4th at 706 (acknowledging that “a

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reasonably prudent internet or smartphone user would expect terms of service to be presented
when the user has navigated to the” purchase screen and “understand that the terms presented on
the interface govern the user's future relationship with” the seller”); Nicosia v. Amazon.com, Inc.,
No. 14 CV 4513 (SLT) (LB), 2017 WL 10111078, at *10 (E.D.N.Y. Aug. 18, 2017) (purchaser
“was not required to click on the hyperlink to the Conditions of Use in order to be bound by the
terms contained therein”), report and recommendation adopted, 384 F. Supp. 3d 254 (E.D.N.Y.
2019), aff’d, 815 F. App’x 612 (2d Cir. 2020).
Plaintiff also objects to the R&R finding that Plaintiff manifested assent to the “Goof
Proof” terms because, according to Plaintiff, she “never actually viewed the terms” and they
were not “presented in a clear and conspicuous manner.” (Pl.’s Objs. at 5) (internal quotation
marks omitted). Here again, the Court disagrees. A company does not need to “explicitly advise
the user” that completing a transaction constitutes assent to its terms and conditions. (R&R at
15) (quoting Edmundson, 85 F.4th at 708); see also Abuda v. Strongblock, No. 22-CV-10869,
2023 WL 6294205, at *5 (S.D.N.Y. Sept. 27, 2023) (noting there is no “requirement that a
separate checkbox signifying the customer’s separate agreement” be provided). In any event,
Plaintiff ratified the arbitration clause here based on her conduct after purchasing the sofa. After
discovering the purported defect, Plaintiff never made a product defect claim under the product
defect warranty, nor attempted to identify the cause of the seam separation to support her theory
that it was an “accidental” tear under the “Goof Proof” policy. (R&R at 15.) Thus, as Judge
Wicks found, Plaintiff ratified the terms based on her continued use of the sofa, failure to return
the sofa, or otherwise submit a defect claim.1

Although the Court finds that Plaintiff received notice of the arbitration clause before its purchase, the Court
disagrees with the R&R finding that Plaintiff was also placed on notice by receiving an email receipt. After
purchasing the sofa, Defendant emailed Plaintiff a receipt that independently contained an arbitration clause. (R&R
at 4.) Judge Wicks found that the receipt separately placed Plaintiff on notice of the arbitration clause, citing a
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CONCLUSION
For the foregoing reasons, Magistrate Judge James M. Wicks’ R&R is ADOPTED in part,
and Defendant’s motion to compel is GRANTED.
SO ORDERED.
Dated: Brooklyn, New York
March 27, 2024

/s/ LDH
LASHANN DEARCY HALL
United States District Judge

similar case where Defendant was found to provide notice based on giving the customer a physical receipt. See
Glover v. Bob's Disc. Furniture, LLC, 621 F. Supp. 3d 442, 449 (S.D.N.Y. 2022) (stating that notice of the arbitration
clause on the sales receipt was “sufficient to alert the customer of the terms present on the reverse”). Here, Plaintiff
was provided the receipt through email, rather than being handed a physical receipt like in Glover. Though Plaintiff
maintains she does not “pore over” each receipt she receives, that does not establish whether Plaintiff actually
received and read the receipt. (Pl.’s Mem. at 4.) Accordingly, the Court declines ruling that Plaintiff was placed on
notice simply by Defendant having sent her an email that she may or may not have been read. See Schnabel v.
Trilegiant Corp., 697 F.3d 110, 126 (2d Cir. 2012) (post-purchase email with arbitration provision “does not without
more establish that [plaintiff] should know that the terms disclosed in the email relate to a service in which he [] had
previously enrolled and that a failure affirmatively to opt out of the service amounts to assent to those terms”); Cox
v. Spirit Airlines, Inc., 341 F.R.D. 349, 361 (E.D.N.Y. 2022), amended on reconsideration in part, No. 17-CV5172(EK)(VMS), 2023 WL 1994201 (E.D.N.Y. Feb. 14, 2023) (post-purchase emails containing baggage fee links
“did not, without more, become part of the contract already entered”). Although the Court declines to adopt this
portion of the R&R, as discussed above, Plaintiff nonetheless received notice at the time of purchase.

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