Ohanian et al v. Apple Inc. et al

Filing 97

FINDINGS OF FACT AND CONCLUSIONS OF LAW: It is hereby ORDERED that the motions to compel arbitration brought by T-Mobile and Apple Inc. are denied. It is further ORDERED that by October 22, 2021, the parties shall confer and submit a proposed Case Management Plan and Scheduling Order for the remainder of discovery as to both of Plaintiffs' claims and shall submit a joint letter providing (1) a proposed briefing schedule for any motion to dismiss Ohanian's claims, (2) a statement desc ribing the status of any settlement discussions and whether the parties would like a settlement conference with Magistrate Judge Cave, a court appointed mediator, or a private mediator retained by the parties and (3) any other information that the pa rties believe may assist the Court in this action. The parties shall mail or hand deliver to the Court a CD containing the five exhibits offered during the evidentiary hearing and the translation of Ohanian's Telegram post. The Clerk of Court i s respectfully directed to close the motions at Dkt. Nos. 79 and 81. Motions terminated: 79 MOTION to Compel Arbitration and Stay Claims filed by T-Mobile USA, Inc., 81 MOTION to Compel Arbitration as to Plaintiff Ohanian. filed by Apple Inc. (Signed by Judge Lorna G. Schofield on 10/14/2021) (mml)

Case 1:20-cv-05162-LGS Document 97 Filed 10/14/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
:
TIGRAN OHANIAN, et al.,
:
:
Plaintiffs,
:
:
-against:
:
APPLE INC., et al.,
:
:
Defendants. :
------------------------------------------------------------- X

20 Civ. 5162 (LGS)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

LORNA G. SCHOFIELD, District Judge:
WHEREAS, on July 15, 2021, Defendants T-Mobile USA, Inc., and Apple Inc. each filed
a renewed motion to compel arbitration of Plaintiff Ohanian’s claims following limited discovery
on the issue of arbitrability (Dkt. Nos. 79 & 81);
WHEREAS, following briefing on the motions, on August 30, 2021, the Court found that
“there is a triable issue of fact as to whether Ohanian received the Prepaid Confirmation Form
(‘Form’) containing notice of T-Mobile’s Terms and Conditions and the arbitration clause
therein” (Dkt. No. 90);
WHEREAS an evidentiary hearing was held on October 13, 2021, to determine whether a
valid agreement to arbitrate between Defendant T-Mobile and Plaintiff Ohanian exists. The
Court heard testimony from Brian Anderson, on behalf of T-Mobile, and from Ohanian on behalf
of himself. The parties offered, and the Court considered, five exhibits: (1) the receipt Ohanian
received when he activated his T-Mobile service on April 19, 2016, (2) the Form, which contains
the arbitration provision and which was generated in T-Mobile’s OpenText system in the course
of Ohanian’s transaction, (3) a different version of the prepaid confirmation form that T-Mobile
previously claimed to have provided Ohanian, (4) a screenshot of metadata from the OpenText
system and (5) a post in Russian made by Ohanian on Telegram.

Case 1:20-cv-05162-LGS Document 97 Filed 10/14/21 Page 2 of 3

WHEREAS, Under New York law, 1 the party seeking arbitration bears the burden of
proving that a valid agreement to arbitrate exists by a preponderance of evidence. See
Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 46 (2d
Cir. 1993) (applying New York law); Solis v. ZEP LLC, No. 19 Civ. 4230, 2020 WL 1439744, at
*4 (S.D.N.Y. Mar. 24, 2020). To be binding, a contract requires a “meeting of the minds” and “a
manifestation of mutual assent.” Starke v. SquareTrade, Inc., 913 F.3d 279, 288-89 (2d Cir.
2019) (quoting Express Indus. & Terminal Corp. v. N.Y. Dep’t of Transp., 715 N.E.2d 1050
(N.Y. 1999)). “The manifestation of mutual assent must be sufficiently definite to assure that the
parties are truly in agreement with respect to all material terms.” Id. at 289 (citing Joseph
Martin, Jr., Delicatessen, Inc. v. Schumacher, 417 N.E.2d 541 (N.Y. 1981)). To determine
whether there was an objective meeting of the minds, courts look to the elements of offer and
acceptance. See id. (citing Express Indus. & Terminal Corp., 715 N.E.2d at 1053). “Where an
offeree does not have actual notice of certain contract terms, he is nevertheless bound by such
terms if he is on inquiry notice of them and assents to them through conduct that a reasonable
person would understand to constitute assent.” Id.
WHEREAS, upon consideration of the evidence, including the credibility of the
witnesses, and the parties’ prior submissions, the Court finds that T-Mobile has not shown by a
preponderance of the evidence that it provided Ohanian the prepaid confirmation form, which
contains the arbitration agreement. This finding was further explained on the record at the
October 13, 2021, hearing. Accordingly, T-Mobile did not meet its burden of proving an
enforceable agreement between Ohanian and T-Mobile. It is hereby
ORDERED that the motions to compel arbitration brought by T-Mobile and Apple Inc.
1

The parties’ memoranda of law assume that New York substantive law governs the relationship
between Ohanian and T-Mobile, which is sufficient to establish the applicable choice of law, see
Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 39 (2d Cir. 2009); PetEdge, Inc. v. Garg, 234
F. Supp. 3d 477, 486 (S.D.N.Y. 2017).

Case 1:20-cv-05162-LGS Document 97 Filed 10/14/21 Page 3 of 3

are denied. It is further
ORDERED that by October 22, 2021, the parties shall confer and submit a proposed
Case Management Plan and Scheduling Order for the remainder of discovery as to both of
Plaintiffs’ claims and shall submit a joint letter providing (1) a proposed briefing schedule for any
motion to dismiss Ohanian’s claims, (2) a statement describing the status of any settlement
discussions and whether the parties would like a settlement conference with Magistrate Judge
Cave, a court appointed mediator, or a private mediator retained by the parties and (3) any other
information that the parties believe may assist the Court in this action. The parties shall mail or
hand deliver to the Court a CD containing the five exhibits offered during the evidentiary hearing
and the translation of Ohanian’s Telegram post.
The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 79 and 81.
Dated: October 14, 2021
New York, New York