Getz v. Verizon Communications, Inc.
Filing
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OPINION AND ORDER.....Verizons July 23, 2018 motion to compel arbitration is granted. The action is stayed pending the outcome of arbitration proceedings. (Signed by Judge Denise L. Cote on 10/24/2018) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DANIEL GETZ, individually and on
:
behalf of all others similarly
:
situated,
:
:
Plaintiff,
:
-v:
:
VERIZON COMMUNICATIONS, INC., a
:
Delaware corporation,
:
:
Defendant.
:
:
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18cv4652(DLC)
OPINION AND ORDER
APPEARANCES:
For the plaintiff:
Ross H. Schmierer
315 Madison Avenue, 3rd Floor
New York, New York 10017
Avi R. Kaufman
Kaufman P.A.
400 NW 26th Street
Miami, Florida 33127
Andrew J. Shamis
Shamis & Gentile, P.A.
14 NE 1st Ave, Suite 400
Miami, Florida 33132
For the defendant:
Gavin J. Rooney
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
DENISE COTE, District Judge:
This case is a putative class action brought by plaintiff
Daniel Getz (“Getz”), individually and on behalf of all others
similarly situated, against defendant Verizon Communications
Inc. (“Verizon”), alleging violations of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227.
Verizon has moved to
stay the action and compel arbitration pursuant to the terms of
the Customer Agreement between it and Getz (“the Customer
Agreement”).
Background
The following facts are taken from the complaint and the
evidence that was submitted in connection with Verizon’s motion
to compel arbitration.
This Opinion summarizes only those facts
relevant to the instant motion.
On October 19, 2016, Getz visited a Verizon Wireless retail
store in Coral Gables, Florida, where he purchased a new Apple
iPhone SE and subscribed to a Verizon plan for data, talk, and
text services for that iPhone.
Getz signed a receipt which
confirmed that he consented to the Verizon Customer Agreement,
including the settlement of disputes by arbitration instead of
jury trial.
He had the opportunity to view the Customer
Agreement by clicking a button on the tablet on which he signed
the receipt.
The Customer Agreement contained the following agreement to
arbitrate disputes (“the Arbitration Clause”):
The Federal Arbitration Act Applies to this Agreement.
Except for small claims court cases that qualify, any
dispute that in any way relates to or arises out of
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this agreement or from any equipment, products and
services you receive from us (or from any advertising
for any such products or services), including any
disputes you have with our employees or agents, will
be resolved by one or more neutral arbitrators . . . .
On October 27, 2017, Getz received two text messages from
Verizon on his Verizon cell phone, advertising a promotion for
the new iPhone X.
Getz alleges that Verizon used an automatic
telephone dialing system to send the unsolicited text messages
to large numbers of consumers.
On May 25, 2018, Getz commenced this putative class action
asserting that Verizon’s actions violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227.
Specifically, he alleges that
Verizon sent text messages to his cell phone and those of other
class members using automated telephone equipment without the
recipients’ consent, in violation of 47 U.S.C. §
227(b)(1)(A)(iii).
This section generally prohibits using an
automatic telephone dialing system to make a call to a cellular
telephone.
On July 23, 2018, Verizon moved to compel arbitration and
stay the action pursuant to the Arbitration Clause and the
Federal Arbitration Act, 9 U.S.C. § 3.
The motion became fully
submitted on August 31.
Getz concedes that he consented to arbitration when he
signed the Customer Agreement.
The only disputed issue is the
scope of the Arbitration Clause.
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Discussion
When deciding motions to compel arbitration, courts apply a
standard “similar to that applicable for a motion for summary
judgment.”
Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir.
2017) (citation omitted).
On a motion for summary judgment,
courts consider “all relevant, admissible evidence submitted by
the parties and contained in pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits,” and draw all reasonable inferences in favor of the
non-moving party.
Id. (citation omitted).
“Where the
undisputed facts in the record require the matter of
arbitrability to be decided against one side or the other as a
matter of law, [courts] may rule on the basis of that legal
issue and avoid the need for further court proceedings.”
(citation omitted).
Id.
Courts must decide whether parties have
agreed to arbitrate “unless the parties clearly and unmistakably
provide otherwise.”
Nicosia v. Amazon.com, Inc., 834 F.3d 220,
229 (2d Cir. 2016).
Under Section 2 of the Federal Arbitration Act (“FAA”)
a written provision in . . . a contract evidencing a
transaction involving commerce to settle by
arbitration a controversy thereafter arising out of
such contract or transaction . . . shall be valid,
irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any
contract.
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9 U.S.C. § 2.
The FAA was enacted in response to “widespread
judicial hostility to arbitration.”
Am. Express Co. v. Italian
Colors Rest., 133 S. Ct. 2304, 2308–09 (2013).
The Supreme
Court has emphasized that the FAA declares a national policy
favoring arbitration and courts must “rigorously enforce
arbitration agreements according to their terms.”
Id. at 2309
(citation omitted); see also Nitro–Lift Technologies, L.L.C. v.
Howard, 568 U.S. 17, 20 (2012); Citigroup, Inc. v. Abu Dhabi
Inv. Auth., 776 F.3d 126, 129 (2d Cir. 2015).
Consistent with
this policy, “[a] party to an arbitration agreement seeking to
avoid arbitration generally bears the burden of showing the
agreement to be inapplicable or invalid.”
Harrington v.
Atlantic Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir. 2010).
Courts routinely enforce agreements to arbitrate within the
context of putative class actions.
See, e.g., AT&T Mobility LLC
v. Concepcion, 563 U.S. 333 (2011); Italian Colors, 133 S. Ct.
at 2311; Meyer, 868 F.3d at 70.
Here, both parties concede that they have agreed to
arbitrate claims arising from the Customer Agreement.
They
disagree over whether the scope of the Arbitration Clause
extends to the TCPA claims that Getz advances.
In light of the strong federal policy in favor of
arbitration, the existence of a broad agreement to
arbitrate creates a presumption of arbitrability which
is only overcome if it may be said with positive
assurance that the arbitration clause is not
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susceptible of an interpretation that covers the
asserted dispute. Doubts should be resolved in favor
of coverage.
Holick v. Cellular Sales of N.Y., LLC, 802 F.3d 391, 395 (2d
Cir. 2015) (citation omitted).
The first step in this analysis is to classify the
Arbitration Clause as either narrow or broad.
In doing so,
a court must determine whether, on the one hand, the
language of the clause, 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 or if, on the other
hand, arbitration was designed to play a more limited
role in any future dispute.
Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc.,
252 F.3d 218, 225 (2d Cir. 2001).
The language of the Arbitration Clause is broad.
The
Arbitration Clause covers, in part, “any dispute that in any way
relates to or arises . . . from any equipment, products and
services you receive from [Verizon] (or from any advertising for
any such products or services) . . . .”
This is sufficiently
broad to create a strong presumption of arbitrability.
See,
Collins & Aikman Products Co. v. Building Systems, Inc., 58 F.3d
16, 20 (2d Cir. 1995) (the phrase “any claim or controversy
arising out of or relating to the agreement” is “the paradigm of
a broad clause”).
Getz contends that the phrase “advertising for any such
products or services” refers to products or services that the
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customer has already received.
Because he did not purchase the
iPhone X that was advertised to him, he contends that the
advertising was not for a product he has received, and therefore
it is outside the scope of the Arbitration Clause.
This
construction is insufficient to escape the broad reach of the
Arbitration Clause.
This dispute “relates to or arises from”
the “services” Getz received.
The text messages in question
were received on a Verizon phone and sent using Verizon’s
wireless service.
Moreover, the purpose of the advertising was
to make Getz aware of an available upgrade to his existing
Verizon phone, to be used with his existing Verizon wireless
service.
Because the parties have consented to a broad
agreement to arbitrate and Getz has failed to overcome the
strong presumption of arbitrability that attaches to such
agreements, Verizon’s motion to compel arbitration is granted.
Conclusion
Verizon’s July 23, 2018 motion to compel arbitration is
granted.
The action is stayed pending the outcome of
arbitration proceedings.
Dated:
New York, New York
October 24, 2018
__________________________________
DENISE COTE
United States District Judge
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