text:
Asia, Australia, Digital Economy, Halal Integrity, Halal Trade, Oceania, Partner Events, Research
Malaysia: Digital platform CoreHalal to empower the Halal industry
Posted on 24/08/2022 24/08/2022 by salama
KOTA KINABALU: Sabah's CoreHalal digital platform will soon be promoted overseas via a Memorandum of Understanding (MoU) to be inked with the Halal Development Corporation (HDC) this Sept 1.
"The halal industry in Sabah will continue to expand to the international level with the development of a digital platform, CoreHalal, to further empower the State's halal management system," said Science, Technology and Innovation Minister Datuk Yakub Khan.
It will take place during the World Halal Business Circuit in Melbourne, Australia and the document will be signed with Kota Kinabalu-based application development company, Synxsoft Sdn Bhd, which developed the technology, so they can become strategic industry partners.
The tech focuses on risk management, audit and training developed based on guidelines issued by the Malaysian Islamic Development Department (Jakim).
"With the CoreHalal digital platform, it will provide guidance to entrepreneurs on the process of obtaining halal recognition and help improve the efficiency of their halal business digitally.
"The use of the digital platform in business will not only improve the halal industry development in Sabah but also ensure residents in the State are not left behind in grabbing the opportunities through technology expansion.
"This is because this platform is not only focused on the food and beverage sector but also includes all sectors listed under the halal industry such as pharmaceuticals, consumer goods and cosmetics," stated Datuk Yakub Khan.
He said this to reporters after welcoming the visit by Synxsoft led by its Chief Executive Officer Mazrie Mahat.
Yakub said the State Government will continue to support CoreHalal to enable it to cooperate with strategic partners not only in Malaysia but also overseas such as Australia, Japan, South Korea and Brunei.
Meanwhile, Mazrie said the ministry plans to expand the CoreHalal platform market to Australia in September and Japan in October.
"Hopefully, such an initiative would give inspiration to the local technology start-ups in Sabah to progress and expand their market to the global level.
Synxsoft chief executive officer and CoreHalal co-founder Mazrie Mahat, meanwhile, said they have been receiving full support from the state since the beginning of the platform development, and want to move forward by expanding the CoreHalal platform market to Japan in October, after Australia.
"It is hoped that with an initiative like this, it can inspire local technology start-ups in Sabah to move forward and expand their market globally," added Mazrie.
Meanwhile, Sabah Creative Economy and Innovation Centre (Scenic) general manager Viviantie Sarjuni said the MoU will pave the way to promoting Malaysian digital halal products globally, where they expect a minimum of RM500,000 worth of annual revenue derived following the MoU signing.
Yakub added that the state government will continue to support CoreHalal to work with strategic partners, not only in the country but abroad such as in South Korea, Brunei and Dubai, besides Australia and Japan.
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This entry was posted in Asia, Australia, Digital Economy, Halal Integrity, Halal Trade, Oceania, Partner Events, Research and tagged CoreHalal, digital halal platform, HDC.


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Windsor on cutting edge of cancer treatment research
Identifying specific types of cancer allows for more targeted, less harmful treatments
A Windsor biomedical company is rolling out cutting-edge cancer-fighting technology that uses DNA sequencing to precisely identify and combat the disease in individual patients.
Leading the research is Dr. Raj Atikukke, the founder of ITOS Oncology, who uses molecular diagnostic technology to study cancer biopsies looking for DNA mutations.
Those mutations in a person's genetic road map tell Atikukke the specific form of cancer he's looking at, which then allows for a more precise, less harmful treatment.
"You don't have to use a cocktail of different chemotherapy, you can use one targeted drug in a patient," Atikukke said during a presentation of his work Wednesday morning.
The million-dollar Next Generation Sequencing, which finds its home at Hôtel-Dieu Grace Healthcare, is the only technology of its kind in southwestern Ontario, according to hospital officials.
There is similar, but less advanced equipment being used in London, said Atikukke, who works with a couple of students to provide the commercial testing.
His tests are not covered by the Ontario Health Insurance Plan, which means each test costs about $1,000. His research is funded by grants, but patients pay for the service.
Atikukke can process 30 samples in about two days. He says his work can also identify if someone is susceptible to cancer, which means they can be proactive in protecting themselves.
"It's always about staying one step ahead of this game of cancer," he said.

redpajama_set_name: RedPajamaCommonCrawl


Pinceau correcteur Beige: WATER (AQUA). CYCLOPENTASILOXANE. TITANIUM DIOXIDE (CI 77891). PHENYL TRIMETHICONE. PROPYLENE GLYCOL. ETHYLHEXYL METHOXYCINNAMATE. METHYL METHACRYLATE CROSSPOLYMER. ISONONYL ISONONANOATE. SODIUM CHLORIDE. PEG/PPG-18/18 DIMETHICONE. IRON OXIDES (CI 77492). ALUMINUM HYDROXIDE. BHT. CAPRYLYL GLYCOL. CHLORPHENESIN. DISODIUM EDTA. DISTEARDIMONIUM HECTORITE. IRON OXIDES (CI 77491). IRON OXIDES (CI 77499). MICA. PEG-10 DIMETHICONE. POLYGLYCERYL-4 ISOSTEARATE. POTASSIUM SORBATE. SD ALCOHOL 39-C (ALCOHOL DENAT). SILICA. SODIUM STEAROYL GLUTAMATE. STEARIC ACID. TITANIUM DIOXIDE. TOCOPHERYL ACETATE. TRIETHOXYCAPRYLYLSILANE. ZINC OXIDE. Pinceau correctaur Beige ambré: WATER (AQUA). CYCLOPENTASILOXANE. TITANIUM DIOXIDE (CI 77891). PHENYL TRIMETHICONE. PROPYLENE GLYCOL. ETHYLHEXYL METHOXYCINNAMATE. METHYL METHACRYLATE CROSSPOLYMER. ISONONYL ISONONANOATE. SODIUM CHLORIDE. IRON OXIDES (CI 77492). PEG/PPG-18/18 DIMETHICONE. ALUMINUM HYDROXIDE. BHT. CAPRYLYL GLYCOL. CHLORPHENESIN. DISODIUM EDTA. DISTEARDIMONIUM HECTORITE. IRON OXIDES (CI 77491). IRON OXIDES (CI 77499). MICA. PEG-10 DIMETHICONE. POLYGLYCERYL-4 ISOSTEARATE. POTASSIUM SORBATE. SD ALCOHOL 39-C (ALCOHOL DENAT). SILICA. SODIUM STEAROYL GLUTAMATE. STEARIC ACID. TITANIUM DIOXIDE. TOCOPHERYL ACETATE. TRIETHOXYCAPRYLYLSILANE. ZINC OXIDE.


Voted Best Online Weight Loss Coach, Shelley's Process and her client's success get featured in the news!
Shelley Johnson is featured in numerous media outlets.
Can you tell me about how your journey began, starting with your personal weight loss and how that turned into a business?
I had struggled with my weight my entire life. After surviving quite a bit of medical trauma as a young woman and mother, including 2 emergency c-sections giving birth to premature babies, 2 near death experiences, and a hysterectomy at 34 years old in 2004, my weight sky-rocketed to 220 lbs. I was miserable both physically and emotionally. Out of pure desperation to save my health and my life, in January 2006, I cried out to God to help me lose weight. I decided I had to do it for real this time, without buying into any gimmicks, so I started to respect the science of weight loss by eating a little less and a little healthier. I started exercising in the privacy of my own home and tracking what I was eating, all while removing judgment and making all my own decisions about everything. I decided to keep it private, very, very private and not speak of what I was doing to anyone, nor allow anyone else to tell me what I should do. I successfully lost 90 lbs by October 2007.
One day I was at my talent agency to audition for a commercial. There was my friend, Michelle, who was also a model and the director of the Mrs. Ohio Pageant. She asked me to compete in the 2010 Mrs. Ohio Pageant. I actually wanted to be a judge for the pageant, but she wanted me to compete. So I asked another friend, "What should I do? Judge or compete?" He immediately replied "You're beautiful! Compete!" So I followed his advice and competed. I was delegated "Mrs. Dublin 2010" and was a finalist in the Mrs. Ohio pageant. At the pageant, I won the Mrs. Ohio 2010 Career Achievement Award. My interview question and platform was about bringing health and wellness to women in Ohio. So for the first time, I shared my story publicly on stage.
It was after that that women started coming to me asking me to help them lose weight. This is when and how I began Losing Coach, in the summer of 2010. I started with helping just one woman. I started sharing my before photo more publicly and as soon as women saw it, they gravitated towards me. I even tried to explain that I was really "nothing", I don't have any kind of license, I'm not a personal trainer, no initials after my name, really I'm not anything. They didn't care. They saw my before picture and they saw me now, and women everywhere were literally begging me to help them.
So I started helping them. And one client at a time kept having real weight loss success. One after another, they lost weight. Literally, every client I coached, lost weight. My business grew rapidly. I went from private coaching, to holding workshops around the country, to now I have an online course and weight loss support group, where women world-wide can sign up for. My program has reached women all over the world including USA, Canada, Mexico, Singapore, India, Ireland, Greece, England, Portugal, Brazil, and others! It's a program ANY woman anywhere can use because you can eat any kind of food you like or prefer; there is no specific menu to follow. It is about making decisions that work for your lifestyle. It's an international business now.
How has your life changed since you started Losing Coach?
More than I can explain!!! I have had the privilege and honor to know and help so many women! Thousands I have reached, and hundreds of them I have coached personally. The window into a woman's heart is truly AMAZING. There is so much love and so much beauty, it has changed me. Women have trusted me with their truest desires, their deepest wounds, and their real, raw feelings. The removal of judgment and restoration of love they experience as I coach them opens up the most beautiful thing one can see – the inside of a woman's heart. It's beautiful. It has changed who I am as a person. The privilege to experience and see their weight loss success is amazing!! Truly nothing makes me happier than to see the successful weight loss of my clients!!
Can you tell me a little about how your coaching system works? Can you go over the 7-step process (as much as you can since it's obviously proprietary information)?
Through truth, humor, dignity and love, I teach women the process I created that helped me lose 90 lbs. The Seven Step Process to Weight Loss Mastery trains the brains and heals the heart. It's about making your own decisions to bring about the desires of your heart (weight loss). The bottom line is, and everyone really knows this, when it comes to real and permanent weight loss success, it comes down to the accumulation of decisions you make over time. Therefore, I help equip women to make these decisions in the midst of the lives, without putting their lives on hold, to lose weight.
Why do you think so many people, especially women struggle with mental and emotional obstacles when it comes to weight loss?
For women, there is an inherent connection emotionally and mentally with their bodies and their weight. It's literally the way we are wired, the way we were created. Our purpose is to manifest beauty (beauty being internal). It pains women so deeply, as they have told me, in their words, that "their outsides don't match their insides." Because of this deep inherent emotional connection, the brain literally floods the temporal lobe with emotions and blocks a woman to be able to make decisions with their weight loss and body logically and rationally. At the same time, the brain increases the appetite from its complex neurological system, with the hypothalamus, which is triggered by emotions and memories.
That is why I focus on healing the heart so much, as we train the brain to approach weight loss with truth and logic. Women have absorbed a lot of judgment throughout life, and so I teach them how to remove the judgment and restore love. They begin to separate their emotions from the science. Their emotions are respected and valued, just separated from the truth and science of weight loss. This experience is so powerful for women, it's unlike anything they have ever experienced. Through the process, gradually over time, the brain decreases and regulates the appetite, and allows for easier and easier permanent weight loss.
It seems to me that a lot of time people are embarrassed to admit that they are out of shape, and therefore don't want to go to the gym and be surrounded by fit people. Does Losing Coach tackle this obstacle?
Absolutely, yes! But it's not necessarily about "Overcoming" this obstacle. It's about a woman respecting her own dignity and if subjecting herself to public embarrassment does not protect her dignity, then I will advise her to protect her dignity and work out in the privacy of her own home or to do something else that protects her dignity, like the Seven Step Process to Weight Loss Mastery.
If there is anything that we haven't touched on that you would like to share?
The Losing Coach® 7 Step Process to Weight Loss Mastery is not a religious program, but it is very holistic. When it comes to weight loss, it respects both the science and the art. The truth and the love. It's like the yin and yang, the law and the grace, the faith and the works, for one is dead without the other. It's so holistic and when all 7 steps are put into practice, weight loss is guaranteed. It's so simple and yet, so holistically complete. I'm very passionate about what I do and I have LOVED every minute of creating and building my business. I have loved every client, every workshop participant and every woman who has ever contacted me. I TRULY TRULY LOVE what I do. It has been finding my true calling and purpose in life!!


text:
Nicosia v Amazon
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magistrate's order, August 18, 2017
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Case 1:14-cv-04513-SLT-LB Document 156 Filed 08/18/17 Page 1 of 33 PageID #: 6202
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
DEAN NICOSIA, on behalf of himself and all
others similarly situated,
Plaintiff,
REPORT AND RECOMMENDATION
-against- 14 CV 4513 (SLT)(LB)
AMAZON.COM, INC.,
Defendant.
BLOOM, United States Magistrate Judge:
Plaintiff Dean Nicosia (Nicosia) brings this putative class action against defendant
Amazon.com, Inc. (Amazon) asserting claims under the Consumer Product Safety Act (the
CPSA), 15 U.S.C. 2051 et seq, and state law. Specifically, Nicosia alleges that Amazon
repeatedly sold weight loss supplements containing sibutramine[,] a Schedule IV controlled
substance. Complaint, ECF No. 1, 2. After moving to dismiss the complaint, as well as
conducting limited discovery upon remand, Amazon now moves to compel arbitration pursuant to
the Federal Arbitration Act (the FAA), 9 U.S.C. 1 et seq. The Honorable Sandra L. Townes
referred defendants motion to compel arbitration to me. 1 For the following reasons, it is
respectfully recommended that defendants motion should be granted.
Although the Second Circuit has not yet addressed the issue, a number of well-reasoned District Court decisions
within this Circuit have concluded that a motion to compel arbitration is non-dispositive, and therefore that a
Magistrate Judge may decide the motion pursuant to 28 U.S.C. 636(b)(1)(A) and Fed. R. Civ. P. 72(a) rather than
issue a report and recommendation pursuant to 28 U.S.C. 636(b)(1)(B) and Fed. R. Civ. P. 72(b). Marcus v. Collins,
No. 16 CV 4221 (GBD) (BCM), 2016 WL 8201629, at *1 n.1 (S.D.N.Y. Dec. 30, 2016) (collecting cases). However,
in light of Judge Townes referral, I issue this Report & Recommendation.
I. Procedural History
A. The Parties Initial Motions 2
Nicosia filed this action on July 28, 2014. ECF No. 1. On September 23, 2014, Amazon
requested a pre-motion conference on the ground that the Court should enforce the arbitration
clause and dismiss the case in favor of an arbitral forum[.] ECF No. 13. In the alternative,
Amazon also argued that the complaint should be dismissed for failure to state a claim. Id. On
September 26, 2014, Amazon sought a protective order and a stay of discovery. ECF No. 15. In
light of Amazons intended motion to dismiss, Judge Townes stayed discovery. ECF No. 18.
On December 19, 2014, Nicosia moved for a preliminary injunction seeking to enjoin
Amazon from sell[ing] and distrbut[ing] products that contain sibutramine. Nicosias
Memorandum in Support of Plaintiffs Motion for a Preliminary Injunction, ECF No. 36-1, at 2-
3. On December 24, 2017, Amazon moved to dismiss. ECF No. 52. Notably, Amazon did not
move to compel arbitration, but instead argued that the complaint should be dismissed in favor of
individual arbitration for failure to state a claim because Nicosia had agreed to arbitration.
Nicosia, 834 F.3d at 228 (internal quotations omitted).
On February 2, 2015, Judge Townes granted Amazons motion to dismiss finding that all
of [Nicosias] claims are subject to mandatory arbitration. Nicosia v. Amazon, Inc., 84 F. Supp.
3d 142, 161 (E.D.N.Y. 2015). As stated by the Second Circuit, [t]he district court [] concluded
that Nicosia was given reasonable notice of the conditions of use given: (1) the conspicuousness
of the hyperlink to the 2012 conditions of Use on the Order Page; and (2) the fact that Nicosia
signed up for an Amazon account via the Registration page in 2008, which required assent to the
The procedural history of the parties initial motions is set forth in Nicosia v. Amazon.com, Inc., 834 F.3d 220, 227-
228 (2d Cir. 2016). I include a brief recitation of the procedural history in the interest of completeness.
2008 Conditions of Use that named King County as the forum for suit but provided that the
conditions were subject to change. Nicosia, 834 F.3d at 228. Judge Townes also denied Nicosias
motion for a preliminary injunction for lack of standing and for failure to demonstrate that he is
likely to prevail on the merits of his CPSA claim. Nicosia, 84 F. Supp. 3d at 160.
B. The Second Circuits Decision
Nicosia appealed Judge Townes decision to the Second Circuit, ECF No. 81, and on
September 20, 2016, the Second Circuit affirmed Judge Townes decision in part and vacated it in
part. Nicosia, 834 F.3d 220.
At the outset, the Second Circuit agreed with Judge Townes and found that Amazons
motion to dismiss neither sought an order compelling arbitration nor indicated that Amazon would
seek to force Nicosia to arbitrate in the future[.] Id. at 230. However, because Judge Townes
decision was on a motion to dismiss pursuant to Rule 12(b)(6) rather than a motion to compel
arbitration, the Circuit found that the district court erred in considering certain factual materials
extrinsic to the complaint. Id. at 234. As to the allegations of the complaint as well as the
documents integral to the complaint, the Court found that Nicosia plausibly stated a claim for relief
as Amazon failed to show that Nicosia was on notice and had agreed to arbitration. Id. at 235, 238.
The Circuit stated that it is not convinced that [Amazons] notice was sufficient and that
reasonable minds could disagree. Id. at 236-37. The Court made clear that it did not hold that
there was no objective manifestation of mutual assent here as a matter of law. Id. at 238. Rather,
the Court held that reasonable minds could disagree on the reasonableness of notice. Id.
(citations omitted). The Second Circuit also explained that factual questions remain as to the
formation of the agreement to arbitrate. Id. at 238 n. 7. Therefore, the matter was remanded for
further proceedings. 3
C. Arbitration Related Discovery
The Court held a conference and set November 15, 2016 as the deadline to complete all
arbitration-related discovery. 4 See Docket Entry, dated Sept. 29, 2016. On November 23, 2016,
the matter was reassigned to me. On December 15, 2016, I extended the deadline to complete all
arbitration-related discovery until February 15, 2017.
By letter dated February 27, 2017, Amazon requested a pre-motion conference in advance
of moving to compel arbitration. ECF No. 98. By the same letter, Amazon requested a stay of fact
discovery while the motion was pending. Id. On March 30, 2017, the Court granted Amazons
requests. On June 14, 2017, Amazon filed its fully-briefed motion to compel arbitration. Plaintiff
opposes the motion. Both parties submitted supplemental authority in support of their positions.5
ECF Nos. 150, 151, 154, 155. On July 25, 2017, the Court heard oral argument on the motion.
Although the Circuit held that plaintiff had plausibly stated a claim for relief, it affirmed Judge Townes decision on
Nicosias motion for a preliminary injunction. Id. at 239.
The Honorable Marilyn D. Go was originally assigned this case until she took recall status, at which time the case
was reassigned to me. See Docket Entry, dated Nov. 23, 2016.
By letter dated August 16, 2017, Nicosia, in support of his opposition to Amazons motion, brought Judge Garaufis
decision in Starke v. Squaretrade, Inc., No. 16 CV 7036 (NGG), 2017 WL 3328236 (E.D.N.Y. Aug. 3, 2017.), to the
Courts attention. ECF No. 154. In denying defendants motion to compel arbitration, Judge Garaufis relied on the
fact that plaintiff did not receive a hyperlink to the contract terms until 24 hours after his purchase and that the e-mail
containing the hyperlink was inconspicuously placed in small font at the very bottom of the email and made it easy
to miss, even for a consumer who was looking for it. Id. at **6-8. As the arbitration provision appeared for the first
time in a set of post-sale terms and conditions[,] id. at *1, it is clear that Starke does not control here.
II. Facts 6
A. Amazon Accounts and Programs
Amazon.com is an online retail website through which consumers may purchase hundreds
of millions of unique products. Amazons 56.1 1. In order to purchase any product on
Amazon.com, a customer must create an Amazon account or use an existing account. Id. 3. Prior
to making any purchase, a customer must sign-in to an Amazon account. Id. 4-7. Depending
on the individual browser and software settings of an Amazon customer, the customer will either
manually sign-in to the account using their username and password or the customer may elect to
save their username and password on their computer in order to sign-on. Id. 5-9.
i. Amazon Prime and Amazon Mom 7
Amazon Prime (Prime) is an Amazon program that offers Amazon customers additional
benefits for an annual membership fee. Id. 12-14. Although there are a number of ways by
which an Amazon user may sign-up for Prime, all customers who sign-up must accept the Amazon
Prime Terms and Conditions (Prime Terms & Conditions). 8 Id. 16.
The Court has carefully reviewed the record which includes: Amazons Rule 56.1 Statement of Undisputed Material
Facts in Support of its Motion to Compel Arbitration (Amazons 56.1), ECF No. 115; the Declaration of Gregory
T. Parks in Support of Defendant Amazon.com, Inc.s Motion to Compel Arbitration (Parks Decl.), ECF No. 118,
and the exhibits attached thereto; the Declaration of Karen Ressmeyer in Support of Defendant Amazon.com, Inc.s
Motion to Compel Arbitration (Ressmeyer Decl.), ECF No. 116, and the exhibits attached thereto; the Declaration
of Jonathan Lin in Support of Defendant Amazon.com, Inc.s Motion to Compel Arbitration (Lin Decl.), ECF No.
117, and the exhibits attached thereto; Plaintiffs Responses and Objections to Amazons Local Rule 56.1 Statement
of Material Facts (Nicosias 56.1 Opp.), ECF No. 119; Plaintiffs Local Rule 56.1 Counter Statement of Undisputed
Material Facts (Nicosias Counter 56.1), ECF No. 127; Declaration of Dean Nicosia (Nicosia Decl.), ECF No.
120; Declaration of Joseph S. Tusa in Support of Plaintiffs Opposition to Amazon.com, Inc.s Motion to Compel
Arbitration (Tusa Decl.), ECF No. 122, and the exhibits attached thereto; Defendant Amazon.com, Inc.s Responses
and Objections to Plaintiffs Local Rule 56.1 Statement of Undisputed Facts (Amazons 56.1 Reply), ECF No. 124;
and the Declaration of Regina Schaffer-Goldman in Further Support of Defendant Amazon.com, Inc.s Motion to
Compel Arbitration (Schaffer-Goldman Decl.), ECF No. 125, and the exhibits attached thereto. Unless otherwise
noted, the facts are undisputed and are supported by record evidence.
For the most part, Nicosia does not dispute the facts set forth by Amazon regarding the substantive details of the
Amazon Prime and Amazon Mom programs. However, Nicosia maintains that Amazon Prime and the Amazon Mom
terms and conditions are inapplicable and irrelevant to Plaintiffs purchases of 1 Day Diet from Amazon.com.
Nicosias 56.1 Opp. 14. Nicosia further disputes that he was provided the notice of, or assent[ed] to, any version
of the Amazon Prime terms and conditions. Id. 16.
The Prime Terms & Conditions in effect on September 30, 2011 stated:
Amazon Mom is an Amazon program that offers Amazon customers additional benefits
and exclusive deals on Amazon.com. Amazons 56.1 21. Customers who sign up for Amazon
Mom are required to accept the Amazon Mom Terms and Conditions (Mom Terms &
Conditions) as well as the Prime Terms and Conditions. 9 Id. 22.
ii. Amazons Conditions of Use 10
Since August 19, 2011, Amazons Conditions of Use has included an arbitration provision.
Amazons 56.1 23-24. The arbitration provision states as follows:
Any dispute or claim relating in any way to your visit to Amazon.com or to
products or services sold or distributed by Amazon or through Amazon.com
will be resolved by binding arbitration, rather than in court . . . . We each
agree that any dispute resolution proceedings will be conducted only on an
individual basis and not in a class, consolidated or representative action.
Id. 88 (emphasis in original). Plaintiff disputes that this provision was lawfully in effect when
his familys Amazon accounts were created. Nicosias Rule 56.1 Opp. 88. Rather, plaintiff
maintains that Amazons Conditions of Use that were in effect when he first created an account in
2008 (2008 Conditions of Use) governed his relationship with Amazon. The 2008 Conditions
of Use included a clause requiring disputes for claims exceeding $7,500 to be brought in any state
Please note that your use of the Amazon.com website and Prime membership are also governed by
our Conditions of Use and Privacy Notice, as well as all other applicable terms, conditions,
limitations and requirements on the Amazon.com Web site, all of which (as changed over time) are
incorporated into these terms. If you sign up for a Prime membership, you accept these terms,
conditions, limitations and requirements.
July 7, 2011 Prime Terms & Conditions, annexed to Ressmeyer Decl. as Exhibit L (Ex. L) (emphasis in original).
Although Amazon has changed its Prime Terms & Conditions several times since September 30, 2011, the relevant
portions have remained substantively identical. Compare id. with December 29, 2011 Prime Terms & Conditions,
annexed to Ressmeyer Decl. as Exhibit O (Ex. O).
The Amazon Mom Terms & Conditions in effect on September 30, 2011, stated:
Please note that your use of the Amazon.com website and the Amazon Mom membership are also
governed by our Conditions of Use, Privacy Notice, Amazon Prime Terms and Conditions, as well
as all other applicable terms, conditions, limitations, and requirements on the Amazon.com Web
Mom Terms & Conditions, annexed to Ressmeyer Decl. as Exhibit K (Ex. K).
Nicosias disputes regarding Amazons Conditions of Use rest primarily on legal arguments regarding notice and
contract formation. See Nicosias 56.1 Opp. 23-24. There is no dispute that Amazons Conditions of Use contained
an arbitration provision since August 2011.
or federal court in King County, Washington[.] 2008 Conditions of Use, annexed to Tusa Decl.
as Exhibit M (Ex M). Notwithstanding the lack of an arbitration provision in the 2008
Conditions of Use, there is no dispute that, since August 19, 2011, Amazons Conditions of Use
contained an arbitration provision. 11 See August 19, 2011 Conditions of Use, annexed to
Ressmeyer Decl. as Exhibit M (Ex. M).
B. The Nicosia Accounts
Dean Nicosia and his wife, Annemarie Nicosia, are frequent online shoppers, including
shopping frequently on Amazon.com. Amazons 56.1 47-52. Amazons records reflect that
plaintiff has three accounts in his name. Id. 60. Although plaintiff does not recall ever opening
an account[,] he does recall giving [Amazon his] information and making purchase[s].
Nicosias Deposition (Nicosia Dep.), annexed to Tusa Decl. as Exhibit A (Ex. A), 194:4-11.
Mr. Nicosias three accounts were all created prior to August 19, 2011, the date that Amazons
updated its Conditions of Use to include an arbitration clause. Amazons 56.1 60; see also
Ressmeyer Deposition (Ressmeyer Dep.), annexed to Tusa Declaration as Exhibit D (Ex. D),
111:8-11. Amazons records show that after Amazon updated its Conditions of Use on August 19,
2011, nine purchases were made using one of the accounts in plaintiffs name. Amazons 56.1
64; see also Account Records for Account No. A17VEJU72310BG, annexed to Ressmeyer Decl.
as Exhibit H (Ex. H) (showing nine purchases made from October 10, 2011 through May 25,
2012). Plaintiff does not explicitly acknowledge these nine purchases. See Nicosias 56.1 Opp.
63; see also Plaintiff Dean Nicosias Supplemental Objections and Responses to Interrogatory Nos.
Amazon has updated its Conditions of Use several times since August 19, 2011. However, the arbitration provision
has remained essentially the same. Compare August 19, 2011 Conditions of Use, Ressmeyer Decl. at Ex. M with
October 10, 2012 Conditions of Use, annexed to Ressmeyer Decl. as Exhibit P (Ex. P) and December 5, 2012
Conditions of Use, annexed to Ressmeyer Decl. as Exhibit R (Ex. R).
1, 4, and 8 (Nicosias Supp. Obj. and Resp.), annexed to Parks Decl. as Exhibit 8 (Ex. 8)
(where Nicosia does not list any purchases from Account No. A17VEJU72310BG).
Amazons records also reflect an account in Annemarie Nicosias name. Amazons 56.1
72. The Annemarie Nicosia Account (hereinafter Annemaries Account) was created on June
9, 2008. Id. Since Amazon included an arbitration clause in its Conditions of Use on August 19,
2011, Annemaries Account has placed 573 orders on Amazon.com. Id. 76. Dean Nicosia and
Annemarie Nicosia both use Annemaries Account to place orders on Amazon.com. Id. 77; see
also Account Records for Account No. A20YC90YVFC5FA, annexed to Ressmeyer Decl. as
Exhibit I (Ex I) at AMZ 475-490 (listing Dean Nicosia and Annemarie Nicosia as names
appearing on credit cards linked to purchases made through Annemaries Account).
On September 30, 2011, Annemaries Account enrolled in the Amazon Mom program and
a free Prime trial. 12 Id. 81. On October 11, 2012, the date the free Prime trial expired, Annemarie
Nicosia renewed her accounts enrollment in the Prime program. Id. 89-90. Although
Annemarie does not recall the exact steps she took to renew the membership, she believes that she
clicked on a button allowing her to renew the Prime membership. Annemarie Dep. 80:22-84:19.
Although plaintiff disputes that Annemarie observed any language next to the button, Amazon
submits that in renewing the Prime membership, Annemarie would have been shown a registration
page depicting language stating, in sum and substance, that she was agreeing to the Amazon Prime
Terms and Conditions. Amazons 56.1 93-95; Nicosias 56.1 Opp. 93-95. In addition, in
renewing the Amazon Prime subscription, Amazon asserts that Annemaries Account would have
Annemarie Nicosias friend, Al Dennis, enrolled Annemaries Account in the Amazon Mom program. Annemarie
Nicosia Deposition (Annemarie Dep.), annexed to Parks Decl. as Exhibit 3 (Ex. 3) at 58:8-18; 66:5-17.
been sent an e-mail with a link to Primes Terms and Conditions. 13 Amazons 56.1 99.
Annemaries Accounts Prime membership has been automatically renewed each year. Id. 100.
At some point in 2012, Dean Nicosia became aware that Annemaries Account had signed
up for a Prime membership. Amazons 56.1 101. From November 2012 until August 2016,
Nicosia made at least 38 purchases on Amazon.com through Annemaries Account and took
advantage of various Prime membership benefits, including free shipping. Id. 102, 113; see also
Nicosias Supp. Obj. and Resp., Parks Decl, Ex. 8 (listing, in a spreadsheet, 51 orders made by
Dean Nicosia on Amazon.com, including the 38 orders he made after Amazon updated its
Conditions of Use on August 19, 2011). Since filing this lawsuit, plaintiff has made at least 31
purchases on Amazon.com through Annemaries Account. Id. 115.
C. Nicosias Purchase of 1 Day Diet Pills
On January 30, 2013 and April 19, 2013, Dean Nicosia purchased 1 Day Diet pills on
Amazon.com using Annemaries Account. Id. 120; Nicosias Counter 56.1 1, 5. Amazon
cannot produce the actual order screens that Nicosia saw when he purchased the 1 Day Diet pills;
however, the Court does not rely on the order screens to determine defendants instant motion to
compel. 14 As discussed infra, the Court finds that Nicosia had actual and/or constructive notice of
Plaintiff states that Amazon has not produced admissible evidence of any actual email it sent to Annemarie Nicosia
concerning the renewal of her Amazon Prime Account. Nicosias 56.1 Opp. 99 (emphasis in original).
Notwithstanding plaintiffs point that Amazon has not produced the actual email, Annemarie testified that an email
may have been sent concerning the renewal of her Amazon Prime Account but that she never saw it. Annemarie Dep.
85:8-15.
Specifically, plaintiff argues that Amazon has not produced the exact order screens viewed by plaintiff and that, as
a result, Amazons evidentiary submission does not satisfy its threshold burden to provide admissible evidence of an
agreement to arbitrate based on complete and actual order screens viewed by Nicosia (or anyone else). Nicosias
Opp. at 15 (emphasis in original). In support of his position, plaintiff cites to Mayfield v. Asta Funding, Inc., 95 F.
Supp. 3d 685 (S.D.N.Y. 2015) and Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325 (11th Cir. 2016). Amazon
argues that these cases are inapposite. Amazons Reply at 6 n.5 (explaining that, in Mayfield, the defendant provided
18 sample arbitration agreements, none of which were identical to the one at issue and that in Bazemore, the
defendant failed to present evidence that the agreement was sent to plaintiff or that the agreement contained an
arbitration provision.). Here, Amazon has produced several sample order screens, including an order screen that
was the only order screen format used by Amazon from April 4, 2011 to June 26, 2013. Amazons Reply at 6
(emphasis in original). Although the Court does not rely on the order screens to decide the instant motion, the Court
Case 1:14-cv-04513-SLT-LB Document 156 Filed 08/18/17 Page 10 of 33 PageID #: 6211
Amazons Conditions of Use including the arbitration clause. Therefore, the Court need not decide
whether Amazons order and registration/sign-up screens, standing alone, provide reasonable
notice. Rather, based on the instant record, I find that Nicosia had actual notice of the Conditions
of Use and the arbitration clause therein.
STANDARD OF REVIEW
The [Federal Arbitration Act] makes arbitration agreements valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract. Kindred Nursing Centers Ltd. P'ship v. Clark, _ U.S. _, 137 S. Ct. 1421, 1426 (2017)
(quoting 9 U.S.C. 2). The FAA establishe[d] a national policy favoring arbitration when the
parties contract for that mode of dispute resolution. Preston v. Ferrer, 552 U.S. 346, 349 (2008);
see also AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 345 (2011) ([I]t is beyond dispute
that the FAA was designed to promote arbitration). The Supreme Court has noted that any
doubts concerning the scope of arbitrable issues should be resolved in favor or arbitration. Moses
H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
Nevertheless, the FAA does not require parties to arbitrate when they have not agreed to
do so. Schnabel v. Trilegiant Corp., 697 F.3d 110, 118 (2d Cir. 2012) (quotations and citations
omitted)). Thus, [t]he threshold question facing any court considering a motion to compel
arbitration is therefore whether the parties have indeed agreed to arbitrate. Id. The question of
may consider the screens, coupled with the declarations submitted by Amazon. See 5381 Partners LLC v.
Shareasale.com, Inc., No. 12 CV 4263 (JFB), 2013 WL 5328324, at *5 (E.D.N.Y. Sept. 23, 2013) (citing Fteja v.
Facebook, Inc., 841 F. Supp. 2d 829, 834-35 (S.D.N.Y.2012) (relying on declarations and screenshots in evaluating
the sign-up process); see also Cordas v. Uber Technologies, No. 16 CV 4065 (RS), 2017 WL 658847, at * 3 (N.D.
Cal. Jan 5. 2017) (finding declarations and screenshots admissible as [i]t is difficult, if not impossible, to conceive
of how an original screenshot would be presented.); Kearney v. Okemo Ltd. Liab. Co., No. 15 CV 166 (GWC),
2016 WL 4257459, at *2 (D. Vt. Aug. 11, 2016) (explaining unlike when a person physically signs a paper contract,
such documentation does not necessarily exist in the click-wrap context[] and that courts frequently enforce such
agreements where affidavits are submitted to authenticate order screens and agreements.).
whether the parties [] agreed to arbitrate is determined by state contract law principles. Nicosia,
834 F.3d at 229 (citing Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 27 (2d Cir. 2002)).
Where an agreement exists, [and the] asserted claims fall within the scope of the agreement . . . ,
the arbitration agreement should be rigorously enforce[d] . . . according to [its] terms. Salameno
v. Gogo Inc., No. 16 CV 0487 (JBW), 2016 WL 4005783, at *4 (E.D.N.Y. July 25, 2016),
reconsideration denied, 2016 WL 4939345 (E.D.N.Y. Sept. 13, 2016), and appeal withdrawn, (Oct.
14, 2016) (quoting Am. Exp. Co. v. Italian Colors Rest., _ U.S. _, 133 S. Ct. 2304, 2309 (2013)).
Under the FAA, a party may move the district court for an order directing that arbitration
proceed pursuant to the parties' written agreement. Mumin v. Uber Techs., Inc., No. 15 CV 6143
(NGG), 2017 WL 934703, at *7 (E.D.N.Y. Mar. 8, 2017), reconsideration denied sub nom. Ortega
v. Uber Techs. Inc., 2017 WL 1737636 (E.D.N.Y. May 2, 2017) (citing Nicosia, 834 F.3d at 229).
In deciding a motion to compel arbitration, courts apply a standard similar to that applicable for
a motion for summary judgment. Nicosia, 834 F.3d at 229 (quoting Bensadoun v. Jobe-Riat, 316
F.3d 171, 175 (2d Cir. 2003)). As such, courts must consider all relevant, admissible evidence
submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and
admissions on file, together with . . . affidavits. Chambers v. Time Warner, Inc., 282 F.3d 147,
155 (2d Cir. 2002) (quoting Fed. R. Civ. P. 56(c)). All reasonable inferences must be drawn in
favor of the non-moving party. Nicosia, 834 F.3d at 229.
If there is a genuinely disputed factual issue whose resolution is essential to the
determination of the applicability of an arbitration provision, a trial as to that issue will be
necessary[.] Wachovia Bank, Nat. Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661
F.3d 164, 172 (2d Cir. 2011). However, 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, we may rule
on the basis of that legal issue and avoid the need for further court proceedings. Id. (quoting
Bensadoun, 316 F.3d at 175).
I. Amazon Did Not Waive Its Right to Arbitrate
Plaintiff alleges that Amazon waived its right to arbitration by failing to move to compel
arbitration until this case was pending for 32 months. Plaintiffs Memorandum in Opposition to
Amazon.com, Inc.s Motion to Compel Arbitration (Plaintiffs Opp.) at 5. Amazon submits that
this argument is ridiculously disingenuous at best and dishonest at worst. Reply Memorandum
of Law in Further Support of Defendants Amazon.com, Inc.s Motion to Compel Arbitration
(Amazons Reply) at 9. Although I disagree with Amazons hyperbolic characterization of
plaintiffs position, the Court should find that Amazon did not waive its right to arbitration.
Where a party expresses its intent to litigate rather than arbitrate a dispute, a Court may
find that the party waived its right to arbitration. Louis Dreyfus Negoce S.A. v. Blystad Shipping
& Trading Inc., 252 F.3d 218, 229 (2d Cir. 2001); see also Meyer v. Uber Techs., Inc., No. 16-
2750-CV, 2017 WL 3526682, at *10 (2d Cir. Aug. 17, 2017) (When the party seeking arbitration
has participated in litigation regarding the dispute, the district court can properly decide the
question of waiver. (citation omitted)). In determining whether a party has waived its right to
arbitration, courts consider three factors: (1) the time elapsed from when litigation was
commenced until the request for arbitration; (2) the amount of litigation to date, including motion
practice and discovery; and (3) proof of prejudice. Louis Dreyfus Negoce S.A., 252 F.3d at 229.
There is no rigid formula or bright-line rule for identifying when a party has waived its right to
arbitration; rather, the above factors must be applied to the specific context of each particular case.
Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d
156, 159 (2d Cir. 2010). However, [t]he key to a waiver analysis is prejudice. Id. (quoting
Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 104 (2d Cir. 2002)). Here, the record
does not support a finding that Amazon waived its right to arbitration.
First, the 32-month period between commencement of the lawsuit and the instant motion,
although significant, does not by itself support a finding of waiver. Chehebar v. Oak Fin. Grp.,
Inc., No. 14 CV 2982 (LDW), 2017 WL 946292, at *2 (E.D.N.Y. Mar. 7, 2017) (collecting cases
where no waiver was found despite delays from four months to three years). Moreover, and
without detailing every reason for the delay, the 32-month period cannot be solely attributed to
Amazon.
Second, although there has been a good amount of litigation to date including Amazons
motion to dismiss pursuant to Rule 12(b)(6), an appeal from the district courts determination of
that motion, and the post-remand arbitration-related discovery, within the context of this particular
case, these proceedings do not reflect that defendant waived its right to arbitration. Plaintiff argues
that Amazon should have moved to compel arbitration at the outset of the litigation and that its
failure to do so makes clear that Amazon chose to litigate the merits of Nicosias claims in this
Court. Plaintiffs Opp. at 6 (emphasis in original). However, plaintiffs argument is soundly
refuted by Second Circuit precedent[.] 15 Murray v. UBS Sec., LLC, No. 12 Civ. 5914 (KPF),
2014 WL 285093, at *6 (S.D.N.Y. Jan. 27, 2014) (collecting cases holding that a defendants filing
of a motion to dismiss does not result in a waiver of the right to arbitration); see also Rush v.
Prior to oral argument, plaintiff referred the Court to Franke-Ross v. Congregation Ohr Hatalmud, a recent Southern
District of New York decision where the Court found that defendants waived their right to compel arbitration. No. 15
Civ. 6566 (NRB), 2017 U.S. Dist. LEXIS 102568 (S.D.N.Y. June 28, 2017). In Franke-Ross, the Court, in finding
waiver, held that defendant did not inform the Court of [an arbitration agreement signed by plaintiff after the litigation
commenced], and its intention to seek enforcement of the Agreement, until seven months after obtaining the
Agreement, and until after (1) the Court had denied the [defendants] motion to dismiss, (2) the plaintiff had filed her
Third Amended Complaint . . . and (3) plaintiff had taken steps to seek a default judgment. Id. at *14. Even the
Court in Franke-Ross stated that the facts make this case distinguishable from other cases in this Circuit, . . . where
courts have found insufficient prejudice to warrant a finding of waiver. Id. at *15.
Oppenheimer & Co., 779 F.2d 885, 888 (2d Cir. 1985) (explaining that defendants motion [to
dismiss] alone, however, does not waive the right to arbitrate (citing Sweater Bee by Banff, Ltd.
v. Manhattan Indus., Inc., 754 F.2d 457, 463 (2d Cir. 1985)). Further, although the parties have
engaged in discovery, it has been limited and focused on the issue of whether [Nicosia] agreed to
arbitrate. 16 Amazons Reply at 10. Although, plaintiff argues that Amazon engaged in substantive
fact discovery unrelated to the issue of arbitration, Plaintiffs Opp. at 7, the discovery conducted
by Amazon was limited in scope and the Court does not find that Amazon engaged in litigation on
substantial issues going to the merits. 17 Doctors Assocs. Inc. v. Distajo, 66 F.3d 438, 458 (2d
Cir. 1995).
Finally, the Court finds that any prejudice suffered by plaintiff as a result of Amazons
delay in moving to compel arbitration does not warrant a finding that Amazon waived its right to
arbitration. The Second Circuit has acknowledged two types of prejudice: substantive prejudice
and prejudice due to excessive cost and time delay. Chehebar, 2017 WL 946292, at *2 (quoting
Louisiana Stadium & Exposition Dist., 626 F.3d at 159). Here, Nicosia argues that as a result of
Amazons actions, he suffered undue delay, costs, and burden. Plaintiffs Opp. at 8. However,
plaintiff fails to identify any specific costs incurred, let alone excessive costs, and the costs of the
motion practice alone are insufficient to support [the] claim of undue expense. Id. (citing PPG
Indus., Inc. v. Webster Auto Parts, Inc., 128 F.3d 103, 107 (2d Cir. 1997) (Incurring legal
expenses inherent in litigation, without more, is insufficient evidence of prejudice to justify a
Initially, the Court set separate deadlines for arbitration and substantive fact discovery. See January 20, 2017
Conference Transcript, ECF No. 94. Although I did not limit discovery strictly to the issue of arbitration, I directed
that any substantive discovery be reasonable and proportional. December 15th Transcript, ECF No. 89 at 48.
Plaintiffs claim regarding discovery is belied by the record. On March 13, 2017, plaintiffs counsel wrote to the
Court stating that Amazon had refused to engage in substantive fact discovery and unilaterally limited the scope of
discovery to the issue of arbitration. Mar. 13, 2017 Letter, ECF No. 103 (Amazon has unilaterally halted merits
discovery . . . [and] informed plaintiffs counsel that it would no longer participate in written discovery nor appear for
depositions . . . .).
finding of waiver.)). Further, as noted by Amazon, a majority of the cases that plaintiff relies on
to support a finding that Amazon waived its right to arbitration involve limited situations where
the party seeking arbitration did so after discovery was closed, the case was close to or on the eve
of trial, and/or the case had been pending for many years. Amazons Reply at 11 n.10; see also S
& R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 82 (2d Cir. 1998) (upholding a waiver
finding as defendants moved to compel arbitration after a trial date was set); In re Currency
Conversion Fee Antitrust Litig., No. 03 Civ. 2843 (WHP), 2005 WL 1705285, at *4 (S.D.N.Y.
July 22, 2005) (finding that Citibank waived its right to compel arbitration where Citibank waited
until the close of discovery to seek arbitration).
Accordingly, even when viewed in the light most favorable to plaintiff while recognizing
the presumption in favor of arbitration, the Court finds that Amazon did not waive its right to
arbitration. See Thyssen, Inc., 310 F.3d at 10405 ([T]here is a strong presumption in favor of
arbitration[, and] waiver of the right to arbitration is not to be lightly inferred.(internal quotations
and citations omitted) (alteration in original)); see also LG Elec, Inc. v. Wi-Lan USA, Inc., 623
Fed. Appx. 568, 569 (2d Cir. 2015) (summary order) ([A]ny doubts [regarding whether a party
waived its right to arbitration] are resolved in favor of arbitration. (internal quotations and
citations omitted)).
II. Nicosias Purchases of 1 Day Diet Pills
Amazon argues that plaintiff had notice of and is bound by Amazons Conditions of Use
and the arbitration provision contained therein. Memorandum of Law in Support of Defendant
Amazon.Com, Inc.s Motion to Compel Arbitration (Amazons Memo) at 1. Specifically,
Amazon argues that plaintiff is bound by the arbitration provision because Nicosia: (1) continued
to place orders on Amazon.com after this litigation began . . . and therefore repeatedly agreed to
arbitrate his claims in this case; (2) had constructive notice of Amazons Conditions of Use as he
placed at least 51 orders on Amazon using various accounts; (3) authorized other individuals to
place orders on various Amazon accounts; and (4) purchased the 1 Day Diet pills using
Annemaries Account and that his wife expressly agreed to various Amazon terms and
conditions, including the arbitration provision. Id. Nicosia argues, inter alia, that the Second
Circuit has already rejected most of Amazons theories and discovery has demonstrated that
[Amazons] remaining arguments are deficient or have been waived. 18 Plaintiffs Opp. at 3.
Upon review of the record, and for the reasons discussed below, I find that plaintiff is
bound by Amazons Conditions of Use and the arbitration provision contained therein.
A. Applicable Law
In order to decide the instant motion, the Court must determine whether, under state law,
the parties contractually bound themselves to arbitrate. See Nicosia, 84 F. Supp. 3d at 149 (citing
Alliance Bernstein Inv. Research & Mgmt., Inc. v. Schaffran, 445 F.3d 121, 125 (2d Cir. 2006)).
Here, the parties agree that Washington law applies. See Complaint, 103-130, 141-158;
Nicosias Opp. at 13; Amazons Memo at 11, 14.
The Second Circuit previously explained that Washington courts have not specifically
addressed the question of the reasonableness of notice of additional terms in online contracts, . . .
but it is clear that general contract principles under Washington law apply to agreements made
online. Nicosia, 834 F.3d at 232 (internal citations omitted); see also Kwan v. Clearwire Corp.,
No. C09-1392 (JLR), 2012 WL 32380, at *6 (W.D. Wash. Jan. 3, 2012) (The making of contracts
Nicosia argues that the Second Circuit decided a number of the arguments presented in Amazons motion to compel.
Plaintiffs Opp. 1-2. Specifically, Nicosia argues that the Second Circuit decided that Amazons website order screen
did not provide Nicosia with conspicuous notice of its hyperlink to the Conditions of Use and that [t]he mandate
rule prevents Amazon from religitating that issue in this Court. Id. at 1. However, as discussed supra, the Second
Circuit found that reasonable minds could disagree on the reasonableness of [the] notice and that factual questions
remain[ed] as to the formation of the agreement to arbitrate. Nicosia, 84 F.3d at 238.
over the internet has not fundamentally changed the principles of contract law. (internal
quotations omitted)). Under Washington law, contract formation requires an objective
manifestation of mutual assent. Nicosia, 834 F.3d at 232. (citations omitted). Manifestation of
assent to an online contract . . . can be accomplished by words of silence, action or inaction, so
long as the user intends to engage in the conduct and knows or has reason to know that the other
party may infer from his conduct that he assents. Id. (internal quotations and citations omitted).
Courts have identified [f]our general types of online consumer contracts . . . (a)
browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap. Berkson v. Gogo LLC, 97 F.
Supp. 3d 359, 394 (E.D.N.Y. 2015). Judge Weinsteins Berkson decision concisely defined these
contracts:
Browsewrap exists where the online host dictates that assent is given merely by
using the site. Clickwrap refers to the assent process by which a user must click I
agree, but not necessarily view the contract to which she is assenting. Scrollwrap
requires users to physically scroll through an internet agreement and click on a
separate I agree button in order to assent to the terms and conditions of the host
website. Sign-in-wrap couples assent to the terms of a website with signing up for
use of the site's services; . . .
Id. (emphasis in original).
Following the Circuit, this Court assumes that Amazons agreement was a hybrid between
a clickwrap and a browsewrap agreement. Id. at 236. However, regardless of the nomenclature,
the classification of an online agreement does not conclude the inquiry, nor does the fact a
consumer may have clicked a box. Applebaum v. Lyft, Inc., No. 16 CV 7062 (JGK), 2017 WL
2774153, at *7 (S.D.N.Y. June 26, 2017). What matters is whether the user had actual or
constructive notice of the conditions for using the website. Nicosia, 834 F.3d at 233. Here, the
issue is whether Nicosia knew or should have known that the Conditions of Use containing an
arbitration clause applied to his dispute with Amazon. Id. at 236 (The question is whether a
reasonably prudent offeree would know that the 2012 Conditions of Use governed, such that [the]
purchase manifested implied assent to the additional terms. (citations omitted))
B. Amazons Conditions of Use Containing an Arbitration Clause Applies
Prior to August 19, 2011, Amazons Conditions of Use in effect did not contain an
arbitration provision. See 2008 Conditions of Use, Tusa Decl., Ex. M. However, in August of
2011, Amazons Conditions of Use was modified to include, inter alia, an arbitration clause. See
August 19, 2011 Conditions of Use, Ressmeyer Decl., Ex. M. Nicosia argues that Amazon failed
to provide effective notice [to Nicosia] regarding the updated Conditions of Use and thus, there
was no assent to [the] changed terms. Nicosias Opp. at 14. As a result, Nicosia submits that the
unilateral amendment of Amazons Conditions of Use to include an arbitration agreement renders
the modification invalid. The Court is not persuaded by plaintiffs argument.
Amazons motion to compel arbitration does not rely on plaintiffs accounts and purchases
prior to August 2011. Nor does Amazon rely on plaintiff or his wifes actions prior to August
2011. Rather, Amazon argues that Nicosia ha[d] actual, constructive, and/or inquiry notice of
and agreed to Amazons Conditions of Use and the arbitration clause therein by placing numerous
orders on Amazon after the arbitration clause was added to Amazons Conditions of Use in 2011.
Amazons Memo at 14. By arguing thus, [Amazon] renders its ability to change [the Conditions
of Use] without notice irrelevant, as the [Conditions of Use] upon which Amazons motion is based
were presented to and agreed to by [] [Nicosia], each and every time [he] made a purchase after
August 2011. Ekin v. Amazon Services, LLC, 84 F. Supp. 3d 1172, 1177 (W.D. Wash. 2014)
(emphasis in original) (rejecting plaintiffs argument regarding the applicability of Amazons pre-
August 2011 Conditions of Use). Accordingly, the Court must decide whether Nicosias actions
after August 2011 provided him notice that Amazons Conditions of Use contained an arbitration
clause.
C. Nicosia Had Notice of Amazons Conditions of Use
i. Actual Notice
Amazon argues that [i]n continuing to place orders on Amazon.com, [Nicosia] [] clearly
and repeatedly assented to the Conditions of Use. Amazons Memo at 17; see also Amazons 56.1
65, 115 (Nicosia placed 31 orders on Amazon.com since filing the lawsuit, 27 of which were
placed after Amazon sent its [September 23, 2014] letter to Judge Townes requesting a pre-
motion conference.); September 23, 2014 Letter, ECF No. 13. Nicosia, in a footnote, argues that
Nicosia did not have actual notice as he never clicked the hyperlink to the Conditions of Use
and did not see Amazons arbitration provision until his deposition. Plaintiffs Opp. at 12 n.8.
Nicosias position is unavailing.
The Second Circuit has held that arbitration clauses without an express limitation to
future disputes should be applied to any preexisting claims. Reid v. Supershuttle Intl, Inc., No.
08 CV 4854 (JG), 2010 WL 1049613, at *5 (E.D.N.Y. Mar. 22, 2010) (citing Coenen v. R.W.
Pressprich & Co., 453 F.2d 1209, 1212 (2d Cir. 1972) and Smith/Enron Cogeneration Ltd.
Partnership, Inc. v. Smith Cogeneration Int'l, Inc., 198 F.3d 88, 99 (2d Cir. 1999)). Therefore,
[t]he relevant question is not when the plaintiff[s] claims arose, but whether they arise under
[the] agreements with the defendant. Kai Peng v. Uber Techs., Inc., No. 16 CV 545 (PKC), 2017
WL 722007, at *11 (E.D.N.Y. Feb. 23, 2017) (quoting Reid, 2010 WL 1049613, at *6). Here,
Amazons Conditions of Use contains no express limitation to future disputes. See Amazons
56.1 88 (Any dispute or claim relating in any way to your visit to Amazon.com or to products
or services sold or distributed by Amazon or through Amazon.com will be resolved by binding
arbitration, rather than in court . . . .); see also Peters v. Amazon Servs., LLC, 669 F. App'x. 487,
488 (9th Cir. 2016) (summary order) (Amazons broad arbitration clause . . . is not limited to
prospective disagreements.); Ekin, 84 F. Supp. 3d at 1178 (Plaintiffs do not meaningfully contest
that [Amazons arbitration agreements] phrasing encompasses disputes arising from both future
and past transactions. Nor could they, consistently, given the prevailing law. (emphasis in
original)). Therefore, by continuing to place orders on Amazon.com, plaintiff is bound to the
Conditions of Use which requires any dispute with Amazon, both past and future, to be resolved
by arbitration. See e.g. Applebaum, 2017 WL 2774153, at **10-11 (granting defendants motion
to compel arbitration on the grounds that plaintiff assented to the [broad] arbitration provisions
set forth in defendants Terms of Service even though plaintiff initiated litigation on the dispute
prior to agreeing to the arbitration provision.).
It is beyond dispute that Nicosias post-lawsuit purchases on Amazon.com are governed
by the arbitration provision. Nicosia argues that even though he made such purchases, he did not
have notice of the arbitration provision as he never clicked the hyperlink to the Conditions of
Use. 19 See Plaintiffs Opp. at 12 n.8. The Second Circuit has made clear that [a]s with paper
contracts or shrinkwrap agreements, to be bound, an internet user need not actually read the terms
and conditions or click on a hyperlink that makes them available as long as she has notice of their
existence. Nicosia, 834 F.3d at 232 (citations omitted). Otherwise, a person who signs a contract
without reading it could maintain that they should not be bound. See Peng, 2017 WL 722007, at
*9 (While the Court is sympathetic to Plaintiffs' argument that their assent was not informed
because they were unable to read the Services Agreement, which was provided solely in English,
the Court is bound by clearly established law holding that failure to read a contract is not a defense
Nicosia states that [a]fter his deposition, he has not made any purchase on Amazon.com. Plaintiffs Opp. at 12
n.8. However, it is undisputed that plaintiff continued to make purchases on Amazon after he filed the instant lawsuit.
to contract formation. (citations omitted)). Accordingly, Nicosia was not required to click on the
hyperlink to the Conditions of Use in order to be bound by the terms contained therein.
Whether or not Nicosia clicked on the hyperlink, Amazon argues that Nicosia had actual
notice of the arbitration provision through his participation in this lawsuit, and most importantly,
through Amazons September 23, 2014 letter to the Court stating that Nicosia was required to
arbitrate the dispute. The September 23rd letter, followed by nearly three years of this litigation,
placed Nicosia on actual notice of Amazons arbitration clause. 20 The Supreme Court has
explained that in our system of representative litigation, . . . each party is deemed bound by the
acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be
charged upon the attorney. Link v. Wabash R. Co., 370 U.S. 626, 634, (1962) (quoting Smith v.
Ayer, 101 U.S. 320, 326 (1879)). Nicosia was on notice, through his counsel, of Amazons
arbitration provision and he cannot now argue that he was only put on notice when he was shown
various documents at his deposition. See S.E.C. v. McNulty, 137 F.3d 732, 739 (2d Cir. 1998)
(Normally, the conduct of an attorney is imputed to his client[.]); see also Brandon O. v.
Woodlick, No. 13 CV 4116 (NGG) (RML), 2014 WL 5878117, at *4 (E.D.N.Y. Nov. 12, 2014)
(explaining that plaintiff was on notice, through counsel, that Defendants intended to move to
dismiss).
Nevertheless, despite notice of the arbitration clause in Amazons Conditions of Use,
Nicosia continued to place orders on Amazon.com. In doing so, plaintiff agreed that all disputes
with Amazon, past and future, would be resolved through arbitration. The Court finds that on this
record, plaintiff had actual notice of Amazons arbitration provision. Accordingly, Nicosias 27
At oral argument, plaintiffs counsel stated that Nicosia was aware of the arbitration clause in Amazons Conditions
of Use in part because of Amazons motion to dismiss, the district courts decision on the motion to dismiss, and the
Second Circuits decision. Oral Argument at 61:15-63:12
purchases on Amazon.com after he received actual notice of Amazons arbitration provision
compels arbitration of plaintiffs ongoing dispute regarding 1 Day Diet pills.
ii. Constructive Notice
Even if plaintiff is not held to have had actual notice of the arbitration provision based on
his 27 purchases on Amazon.com after Amazons September 23, 2014 letter, the Court should find
that Nicosia had constructive notice of Amazons Conditions of Use.
The crux of the Second Circuits decision on defendants motion to dismiss in this case
lies in its analysis of Amazons order page and its failure to provide reasonably conspicuous notice
of the Conditions of Use. Nicosia, 834 F.3d at 237. Essentially, the Second Circuit found that
reasonable minds could disagree whether Amazons order page with its numerous links and
various texts in several font sizes and colors gave Nicosia notice as to Amazons Conditions of
Use. 21 Id. Amazon argues that the Second Circuit incorrectly focused on the entire page rather
than the screen the way [Nicosia] would have seen it[.] Oral Argument, ECF No. 102 at 46
(citing Specht, 306 F.3d at 31 (refusing to compel arbitration where the reference to the terms and
conditions were on a submerged screen as there is no reason to assume that viewers will scroll
down to subsequent screens simply because screens are there)). However, the Court has no reason
to question the Circuits finding that reasonable minds could disagree regarding the notice
provided by Amazons order page. 22 Rather, and as Amazon argues, Nicosia had constructive
In Meyer, the Second Circuit revisited its decision in Nicosia and explained that the Uber screen differs sharply
from the screen in Amazon which :
[C]ontained, among other things, summaries of the user's purchase and delivery information,
between fifteen and twenty-five links, text ... in at least four font sizes and six colors, and several
buttons and advertisements. Nicosia, 834 F.3d at 236-37. Furthermore, the notice of the terms and
conditions in Nicosia was not directly adjacent to the button intended to manifest assent to the
terms[] . . . Id. at 236.
2017 WL 3526682, at *8.
The Circuits recent decision in Meyer focused on Ubers registration screen, not an order screen. 2017 WL 3526682,
at **7-8. Because I find that Nicosia had actual and/or constructive notice of the arbitration provision based on his
Amazon purchases after Amazon updated its Conditions of Use to include an arbitration provision, the Court need not
notice of the arbitration clause based on his repeated purchases on Amazon.com. Amazons Memo
at 14-16.
Amazons position is supported by Judge Weinsteins decision in Salameno, 2016 WL
4005783. In Salameno, Judge Weinstein, granted defendants motion to compel arbitration and
distinguished Berkson, 97 F. Supp. 3d 359, an earlier related case against the same defendant,
wherein the Court denied defendants motion to compel arbitration. The Courts analysis in
Salameno is particularly helpful and instructive.
In Salameno, Judge Weinstein explained that even though Salameno and Berkson involve
the same Gogo clickwrap and sign-in agreements, the plaintiffs in each case are different in a
material way. Specifically, Judge Weinstein noted that unlike the plaintiffs in Berkson the
plaintiffs [in Salemeno] [] were repeatedly warned that by using Gogos product they were
agreeing to the terms of use, and they were repeatedly presented with a hyperlink to those terms.
Salameno, 2016 WL 4005783, at *5. (noting that in Berkson, the plaintiffs had only signed-up
and used Gogos product a single time.). In distinguishing the plaintiffs, Judge Weinstein
explained that [i]n todays technologically driven society, it is reasonable to charge experienced
users . . . with knowledge of how hyperlinks work and, by extension, how to access the terms of
use which they are consenting to when they sign-in and/or purchase an item. Id. at *6.
Here, Amazon submits that plaintiff is an experienced, sophisticated, and frequent user of
Amazon and its services. Amazons Memo at 15. Therefore, it is reasonable [for this Court] to
conclude that [he is] not [an] unsophisticated internet user[] unaware of defendants Terms and
Conditions. Salameno, 2016 WL 4005783, at *6. Nicosia attempts to distinguish his case by
arguing that this matter is more similar to Berkson as there is no evidence that Nicosia is a
address whether the design of Amazons screens and the language used provides users reasonably conspicuous notice
of the Conditions of Use.
sophisticated internet user 23 or that he was repeatedly presented with Amazons Terms and
Conditions. Plaintiffs Opp. at 11 n. 5. However, again, the record belies plaintiffs position.
Nicosia repeatedly made purchases on Amazon.com. Beginning in 2008 and continuing
through 2016, Nicosia and his family increased their online shopping purchases out of
convenience, more selection . . . and sometimes better prices. Nicosia Dep., Tusa Declaration,
Ex. A at 79:24-80:7; see also Amazons 56.1 46-51. Through the years, Nicosia and his family
purchased a variety of items through online marketplaces. Id. 50-52. Since Amazon included
an arbitration clause in its Conditions of Use on August 19, 2011, Annemaries Account has placed
573 orders on Amazon.com. Id. 76 (Annemaries Account has placed 627 order on Amazon,
573 of which were placed after August 19, 2011, when the Conditions of Use had an arbitration
clause.). Although Nicosia testified that he does not recall ever reading the terms and conditions
of any website, Amazons 56.1 58, Nicosia has been exposed to the terms and conditions for
various websites given his purchasing experience. Id. 58-59. Further, the undisputed evidence
makes clear that Nicosia is a sophisticated user of Amazon.com as three Amazon accounts were
created in Nicosias name and Nicosia made at least 51 purchases himself. Id. 60-61, 65.
Importantly, of Nicosias 51 purchases, 38 were made after Amazon updated its Conditions of Use
to include an arbitration clause. 24 Id. 113.
The Court notes that soon everyone may be considered a sophisticated internet user. As Meyers quoted, albeit about
cellphones, modern cell phones ... are now such a pervasive and insistent part of daily life that the proverbial visitor
from Mars might conclude they were an important feature of human anatomy. Riley v. California, 134 S. Ct. 2473,
2484 (2014).
Although Amazon argues that Nicosia placed at least 51 orders on Amazon.com, given Amazons position regarding
the 2008 Conditions of Use and the August 19, 2011 Conditions of Use, see supra Part II(B), the Court does not rely
on Nicosias purchases prior to August 19, 2011. See Amazons Memo at 14. Rather, the Court considers the 38
purchases made by Nicosia after August 19, 2011. See Amazons 56.1 65, 113.
The Second Circuit, in drawing on Judge Levals apple stand analogy in Register.com,
Inc. v. Verio, Inc., 356 F.3d 393, 401 (2d Cir. 2004), compared the order page viewed by Nicosia
to an apple stand and noted:
[I]t is as if an apple stand visitor walks up to the shop and sees, above the basket
of apples, a wall filled with signs. Some of those signs contain information
necessary for her purchase, such as price, method of payment, and delivery details,
and are displayed prominently in the center of the wall. Others she may quickly
disregard, including advertisements for other fruit stands. Among them is a sign
binding her to additional terms as a condition of her purchase. Has the apple stand
owner provided reasonably conspicuous notice? We think reasonable minds could
Nicosia, 834 F.3d at 237. I too draw on Judge Levals apple stand analogy. While a first time
visitor may not process the various signs lining the walls of the apple stand, a repeat visitor should
note the signs whether or not they are front and center. See Register.com, 356 F.3d at 401 (D
cannot continue on a daily basis to take apples for free, knowing full well that P is offering them
only in exchange for 50 cents in compensation, merely because the sign demanding payment is so
placed that on each occasion D does not see it until he has bitten into the apple.); see also Nicosia,
834 F.3d at 237 n.5 (explaining that the apple stand analogy was extended in Fteja v. Facebook,
Inc., 841 F. Supp. 2d 829, 84041 (S.D.N.Y. 2012), to a description of imputing knowledge of
terms contained in an unclicked hyperlink, so long as the consequences of assenting are conveyed
and the user is directed where to click to view the additional terms.). Simply put, reasonable
minds may disagree whether Amazons order screen provides reasonable notice of the Conditions
of Use to a greenhorn user. However, after 38 visits to the same apple stand, reasonable minds
would agree that the user should know that the stands apples are not for free.
Accordingly, I find that even if plaintiff did not have actual notice of the Conditions of Use
and the arbitration provision through the instant lawsuit, he had constructive notice of the provision
based on his repeat purchases on Amazon.com.
iii. Amazons Additional Theories
Amazon also argues that plaintiff is bound by the arbitration provision as he: (1) authorized
other individuals to place orders on various Amazon accounts; and (2) purchased the 1 Day Diet
pills using Annemaries Account which had signed up for Amazon Mom and Amazon Prime. As
the Court has already found that plaintiff is bound by the arbitration provision as he had actual
and/or constructive notice based on his specific purchases and actions, the Court need not reach
Amazons additional arguments but I do so briefly to be thorough.
1. Agency
Amazon argues that plaintiff is bound by the Conditions of Use because he authorized
other individuals, . . . to place orders on his account on his behalf. Amazons Memo at 16.
Relying on agency principles, Amazon submits that Nicosia gave individuals, including his wife,
either actual or apparent authority to enter into contracts with Amazon. Id. at 16-17. In opposition,
Nicosia posits several arguments: (1) that his agents did not have the authority to accept Amazons
Conditions of Use on his behalf; (2) that, even if an agency relationship existed, it was limited to
the purchases made by the agents and not to Nicosias purchase of 1 Day Diet pills; and (3) that
Amazon cannot show that Nicosias agents had notice of Amazons Condition of Use in making
the various purchases. 25 Nicosias Opp. at 21-24. The record before the Court does not support
Nicosia also argues that Amazon failed to plead agency as an affirmative defense and thus waived such a defense.
Nicosia Opp. at 20. Amazon submits that arbitration is the relevant affirmative defense and not agency. Amazons
Reply at 11-12. An affirmative defense is defined as [a] defendant's assertion raising new facts and arguments that,
if true, will defeat the plaintiff's or prosecution's claim, even if all allegations in the complaint are true. Saks v.
Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (quoting Black's Law Dictionary 430 (7th ed. 1999) (alterations
in original)); see also Fed. R. Civ. P. 8(c). I am not persuaded that Amazon was required to specifically plead agency
as an affirmative defense. The Second Circuit has held, it is the rare case where agency is an affirmative defense.
Garanti Finansal Kiralama A.S. v. Aqua Marine & Trading Inc., 697 F.3d 59, 72 (2d Cir. 2012) (finding that [t]he
issue of agency in [a][] declaratory judgment action, . . . presents itself as an affirmative defense (emphasis added)).
Even if Amazon were required to plead agency as an affirmative defense, the Court sees no reason why Amazon could
not amend its answer to affirmatively raise such a defense. See Saks, 316 F. 3d at 350-51 ([A] district court may still
entertain affirmative defenses at the summary judgment stage in the absence of undue prejudice to the plaintiff, bad
faith or dilatory motive on the part of the defendant, futility, or undue delay of the proceedings. In such circumstances,
the district court may construe the motion for summary judgment as a motion to amend the defendant's answer.).
defendants position that Nicosias agents had the necessary authority to bind Nicosia to Amazons
Under Washington law, an agency relationship arises when one person (a principal)
manifests assent to another person (an agent) that the agent shall act on the principals behalf and
subject to the principals control, and that agent manifests assent or otherwise consents so to act.
Nicosias Opp. at 16 (quoting Revitalization Partners, LLC v. Equinix, Inc., No. 16 CV 1367, 2017
WL 823291, at *4 (W.D. Wash. Mar. 2, 2017) (additional internal citations omitted)). Although
Nicosia admits that he authorized various individuals to purchase items using his credit card, his
testimony does not support a finding that he authorized them to purchase the items specifically
from Amazon.com. Nicosias Dep. 209:1-25 (Q: Were you aware that he was going to make that
purchase on Amazon.com? A: Im not - - thats a good question. I dont recall.); see Mohammed
v. Uber, No. 16-2537 (JZL), 2017 WL 590289, at **7-9 (N.D. Ill. Feb. 14, 2017) (finding, on a
motion to dismiss, that plaintiffs agent did not have the authority to accept agreements on his
behalf without notifying him). 26 Further, even if Nicosia gave the agents such authority, Amazon
cannot show that the agents had notice of the Conditions of Use when they made purchases on
Amazon.com such that they could bind plaintiff. 27
Amazon argues that Mohammed is distinguishable from the instant matter as the Court had a limited record before
it with no discovery on a motion to dismiss. Amazon Reply, at 3 n. 3. Amazons analysis of Mohammed is correct.
However, the record before the Court, even at this stage of the litigation, is still insufficient to find that plaintiffs
agents had the necessary authority to bind him to Amazons Conditions of Use.
It is also unclear whether Amazons theory of agency applies when the agents purchase is unrelated to the disputed
good and/or service at issue. In fact, all of the cases cited by Amazon in support of its agency theory involve disputes
relating directly to the purchase made by the agent. See Oahn Nguyen Chung v. StudentCity.com, Inc., No. 10 CV
10943, 2013 WL 504757, at **2-4 (D. Mass. Feb 12, 2013) (compelling arbitration after determining that plaintiffs
parents had authorized her to make payments using their credit card on StudentCity.com and, in doing so, assented to
the sites customer agreement specifically for her vacation); Hoffer v. The GAP, Inc., 516 F. Supp. 2d 161 (D. Mass.
2007) (where plaintiff sued Expedia.com relating to airline tickets purchased by plaintiffs friend for plaintiff); Adsit
Company, Inc. v. Gustin, 874 N.E.2d 1018 (Ind. Ct. App. 2007) (finding that the actual purchaser functioned as the
agent for the individual whose credit card was used to pay for the item in dispute).
Accordingly, the Court should not rely on Amazons agency theory to grant Amazons
motion to compel arbitration.
2. Derivative Rights
Amazon also argues that Nicosia is bound by Amazons Conditions of Use as he purchased
the 1 Day Diet pills from Annemaries Account, which is subject to the Mom and Prime Terms
and Conditions. Amazons Memo at 18-22. Specifically, Amazon submits that Annemaries agent,
Dennis, enrolled Annemaries Account in Amazon Mom, and in doing so, accepted the Mom and
Prime Terms and Conditions. Id. at 19. In addition, after Annemaries Accounts free Prime trial
concluded, which was a part of Amazon Mom, Annemarie expressly signed up for Amazon Prime
and agreed to the Prime Terms and Conditions. Id. at 21. Accordingly, Amazon argues that
Annemaries Account, in signing up for the programs, agreed to the Conditions of Use, including
the arbitration clause and the class action waiver. Therefore, under Amazons derivative rights
theory, Nicosia is bound by the Conditions of Use to which the Nicosias Prime Account
agreed[.] Id. at 22.
Nicosia does not dispute that Annemaries Account enrolled in the Amazon Mom and
Prime programs. See generally Nicosias Opp. Rather, Nicosia argues that Annemarie never
actually clicked on a hyperlink to or read the Prime [Terms and Conditions], the Mom [Terms and
Conditions], and the Conditions of Use. Amazons Reply at 4. However, [w]hether or not the
consumer bothers to look is irrelevant. Fteja v. Facebook, Inc., 841 F. Supp. 2d at 839-40 (finding
that plaintiff was informed of the consequences of his assenting click and when he was shown,
immediately below, where to click to understand those consequences. That was enough.).
Although the Second Circuit found that Amazons order screens may not provide proper notice,
the Second Circuit did not decide whether Amazons registration screens provided proper notice
to users. 28 The record makes clear that the registration screens for Amazon Mom and Prime are
different in both format and presentation from the Amazon order screens. Courts have upheld
similar registration screens and systems as providing proper notice to users. See e.g. Ekin, 84 F.
Supp. 3d at 1175 n. 5 (explaining that plaintiffs could not dispute that they accepted the arbitration
agreement . . . through active purchases and renewals . . . of their Prime membership); Selden v.
Airbnb, Inc., No. 16 CV 933 (CRC), 2016 WL 6476934, at *5 (D.D.C. Nov. 1, 2016)
([A]greements tend to be enforced if the hyperlinked terms and conditions is next to the only
button that will allow the user to continue use of the website (internal citations and quotations
omitted) (collecting cases)); Starke v. Gilt Groupe, Inc., No. 13 Civ. 5497 (LLS), 2014 WL
1652225, at *3 (S.D.N.Y. Apr. 24, 2014) (Regardless of whether he actually read the contracts
terms, [plaintiff] was directed exactly where to click in order to review those terms, and his
decision to click . . . the button represents his assent to them.); see also Meyers, 2017 WL
3526682, at *9 (Reviewing a similar registration screen and finding that [a] reasonable user would
know that by clicking the registration button, he was agreeing to the terms and conditions
accessible via the hyperlink, whether he clicked on the hyperlink or not.).
As Annemaries Account is bound by the Terms and Conditions as well as the Conditions
of Use, which were agreed to through registrations and renewals of the Amazon Mom and Prime
programs, Nicosia is left in the unenviable position of having to distinguish his purchase of 1 Day
Diet pills from Annemaries Account. Specifically, Nicosia argues that Amazons position lacks
merit as: (1) it ignores the fact that Nicosia did not sign into his wifes account to purchase the
In its decision, the Second Circuit explicitly refused to consider the registration and sign-up screens. Nicosia, 834
F.3d at 235. The Court only reviewed the order screen to determine whether it provided sufficient notice as a matter
of Washington law. Id. at 236-238.
1 Day Diet pills; 29 and (2) Nicosia had his own account agreements with Amazon that governed
the relationship between them[.]30 Nicosia Opp. at 24 (emphasis in original). However, whether
plaintiff signed in to Annemaries account on the day of the purchase, it is undisputed that he used
Annemaries Account to purchase the 1 Day Diet pills. As explained by the Court in Motise v.
America Online, Inc., allowing Nicosia to use Annemaries Account without holding his purchases
to the Terms and Conditions agreed of the account would permit individuals to avoid the [] Terms
of Service simply by having third parties create accounts and then using them as the Plaintiff did.
346 F. Supp. 2d 563, 566 (S.D.N.Y. 2004).
Notwithstanding the persuasiveness of Amazons derivative rights theory, the Court need
not review the registration page or rely on derivative rights to grant Amazons motion to
compel. 31
III. Plaintiffs Challenge to the Validity of the Contract Must be Resolved by the Arbitrator
Finally, Nicosia argues that because the [s]elling or distributing of sibutramine is illegal
he cannot be bound by any contract with Amazon. Plaintiffs Opp. at 17-18. This issue was
thoroughly addressed by Judge Townes in her decision granting defendants motion to dismiss
where she concluded that the challenge that the entire purchase agreement . . . is void ab initio
as an illegal contract is a challenge to the contract as a whole and must go to the arbitrator.
Nicosia, 85 F. Supp. 3d at 153 (explaining that the FAA limits a district courts role to determining
Plaintiff alleges that he did not know Annemaries Accounts password and Amazons system[] [is] set up to save
the account credential from a past user. Nicosia Opp. at 24.
Nicosia also argues that Amazons derivative rights theory fails as Amazons Conditions of Use provides that [a]ny
unauthorized use terminates the permission or license granted by Amazon. Nicosias Opp. at 24 (alteration in
original) (citations omitted). Nicosia provides no analysis or case law to substantiate his position. Amazon is not
arguing that Nicosia was an unauthorized user of the Annemarie Account. Rather, Amazon is specifically arguing
that Nicosia was authorized to use the account and that the account was bound by the arbitration provision. However,
even if Nicosia is considered an unauthorized user, the fact that the permission or license granted by Amazon would
be terminated would not alter the fact that the arbitration clause controls the resolution of any dispute. See infra Part
See supra, footnote 22.
threshold [q]uestions of arbitrability, i.e., determining whether a valid arbitration agreement
exists and whether the agreement encompasses the disputes at issue. (quoting Republic of
Ecuador v. Chevron Corp., 638 F.3d 384, 393 (2d Cir. 2011)). Although the Second Circuit found
factual questions remain[ed] as to the formation of the agreement to arbitrate[,] the Court did
not rule on the issue of the contracts validity. Nicosia, 834 F.3d at 238 n.7.
The Supreme Court has made clear that there are two types of challenges under the FAA,
[o]ne type challenges specifically the validity of the agreement to arbitrate, and [t]he other
challenges the contract as a whole, either on a ground that directly affects the entire agreement
(e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the
contract's provisions renders the whole contract invalid. Buckeye Check Cashing, Inc. v.
Cardegna, 546 U.S. 440, 444 (2006). Claims of the first type may be adjudicated by the court;
however, a party's challenge to another provision of the contract, or to the contract as a whole,
does not prevent a court from enforcing a specific agreement to arbitrate. Damato v. Time Warner
Cable, Inc., No. 13 CV 994 (ARR), 2013 WL 3968765, at *4 (E.D.N.Y. July 31, 2013) (quoting
Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 70 (2010)); see also Edwards v. Macy's Inc., No.
14 Civ. 8616 (CM), 2015 WL 4104718, at *4 (S.D.N.Y. June 30, 2015) (Whether an arbitration
agreement was made is for the Court to decide. Everything else is for the arbitrator.).
Here, plaintiffs argument is premised not on the invalidity of the arbitration clause nor on
the formation or execution of the contract. Rather, plaintiff alleges that the entire contract is illegal
as a result of Amazons selling of 1 Day Diet pills. 32 However, Buckley makes clear that where a
Plaintiff argues that Granite Rock Co. v. International Brotherhood of Teamsters, 561 U.S. 287 (2010), limited
Buckeye and clarified that, where the dispute at issue concerns contract formation, the dispute is generally for the
courts to decide. Plaintiffs Opp. at 19 (quoting Granite Rock, 561 U.S. at 296). In support of his position, plaintiff
cites to Delgado v. Ocwen Loan Servicing, LLC, No. 13 CV 4427 (NG), 2016 WL 4617159, at *9 (E.D.N.Y. Sept. 2,
2016). In Delgado, defendant argued that any challenge to a contract as a whole rather than to the arbitration clause
specifically . . . must be determined by an arbitrator. Id. at 10 (emphasis in original). However, in rejecting
defendants argument, the Court explained that Granite Rock essentially confirmed the Second Circuits limited
party challenge[s] [] the validity of the contract as a whole, and not specifically [] the arbitration
clause, [the issue] must go to the arbitrator. 546 U.S. at 449; see also Rent-A-Center, West, Inc.,
561 U.S. at 71 ([W]here the alleged fraud that induced the whole contract equally induced the
agreement to arbitrate which was part of that contractwe nonetheless require the basis of
challenge to be directed specifically to the agreement to arbitrate before the court will intervene);
Cypress v. Cintas Corp. No. 2, No. 16 CV 2478 (ADS), 2017 WL 564492, at *4 (E.D.N.Y. Feb.
11, 2017) (collecting cases) (holding that plaintiffs arguments contesting the enforceability of the
contract are subject to arbitration); Lapina v. Men Women N.Y. Model Mgmt. Inc., 86 F. Supp.
3d 277, 287 (S.D.N.Y. 2015), appeal dismissed (Sept. 28, 2015) (holding that plaintiffs assertions
regarding the illegality of the contract must go to an arbitrator); Cole v. Pearson Educ., Inc., No.
10 Civ. 7523 (JFK)(RLE), 2011 WL 4483760, at *5 (S.D.N.Y. Sept. 28, 2011) (holding that
plaintiffs allegations concerning fraudulent inducement clearly go to the validity of the contract
as a whole and are not specific to the arbitration clause). Accordingly, plaintiffs challenge to the
validity of the contract is subject to arbitration.
Accordingly, the Court should grant Amazons motion to compel arbitration as Nicosia
had actual and/or constructive notice of Amazons Conditions of Use and the arbitration clause
contained therein. The Court should stay this action for six months or until the arbitration is
complete, whichever comes first, so that plaintiff can pursue his claims. See Katz v. Cellco P'ship,
794 F.3d 341, 345 (2d Cir. 2015), cert. denied, 136 S. Ct. 596 (2015) (The FAA requires a stay
exception to the requirement of arbitration for general contract challenges where a party attacks the very existence of
a contract in the first place. Id. (collecting cases). Thus, Delgado stands for the proposition that if a party challenges
the formation or execution of the contract, it is the courts role to determine whether a contract exists. Id.
Importantly, Delgado does not alter the Courts decision in Buckley as it noted that attacks [on] the validity, rather
than the existence, of the contract as a whole, . . . must go to the arbitrator[.] Id. at 11.
of proceedings when all claims are referred to arbitration . . . .). If this Report is adopted, the
parties should be ordered to file a status report regarding the arbitration within six months.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,
the parties shall have fourteen (14) days from service of this Report to file written objections. See
also Fed. R. Civ. P. 6. Such objections shall be filed with the Clerk of the Court. Any request for
an extension of time to file objections must be made within the fourteen-day period. Failure to file
a timely objection to this Report generally waives any further judicial review. Marcella v. Capital
District Physician's Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v. Secretary of Health and
Human Services, 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140, 106S. Ct. 466, 88
L. Ed. 2d 435 (1985).
LOIS BLOOM
United States Magistrate Judge
Discovery (Law)
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These three statements that you can find on the side of your favorite foods actually mean three different things. However, people see the date and throw away the food while it's still fresh and edible.
The good news is, regardless of the label, food actually lasts longer than you think. The "use by" label means you should eat the food before that date, however it usually refers to quality more than safety. "Sell by" refers to when something should be removed from shelves. It's estimated that after this date, about one third of the food's life still exists; so don't throw it away so fast. "Best buy" is purely a qualitative statement. It simply means quality will be best by a certain date, not that the food will go bad.
Paying attention to these different designations is important to understand how long your food will last. If we're throwing many things away before we need to, then awareness will be one of our greatest allies to change that.