ORDER COMPELLING ARBITRATION I. Introduction Plaintiff Lekisha Nicholas brings suit on behalf of a proposed class of individuals alleged to have purchased from Defendants Wayfair Inc. and Wayfair LLC (collectively, “Defendants”) products infested by bedbugs. Plaintiffs seek substantial damages for having to debug entire homes through extermination as the varmints took over households. Defendants move to compel arbitration based on Plaintiff’s acquiescence to Defendants’ website “terms and conditions.” Plaintiff opposes. Courts must pay special attention to the contracts of adhesion used in internet consumer commerce. The instant arbitration agreement passes muster on its facts. Arbitration is ordered. II. Facts Plaintiff is a well-informed internet consumer. She is a college graduate who has worked in management consulting and at a prominent bank. Evid. Hr’g Tr. 30:17-22, 32:2-3, Oct. 2, 2019. Wayfair Inc. is engaged in the marketing and sale of bedroom furniture, among other household items. Compl. 4, ECF No. 1. Wayfair LLC is a wholly-owned subsidiary of Wayfair Inc. Id. 5. Defendants’ Director of Storefront Engineering, Jonathan Klein, and Plaintiff testified at an evidentiary hearing conducted by the court. See generally Evid. Hr’g Tr. Defendants’ regularly kept technical records captured Plaintiff’s repeated use of Defendants’ website, Wayfair.com. See Wayfair Ex. 1 (filed under seal as Clickstream Report, ECF No. 27-1); Evid. Hr’g Tr. 8:7-9:17. In 2016, Plaintiff purchased a headboard from Defendants. Evid. Hr’g Tr. 24:23-25:1. When placing her order, she clicked “Submit Order,” immediately under which was the text “By placing this order, you are agreeing to our terms and conditions[.]” See Wayfair Ex. 2 (emphasis in original); Decl. Jonathan Klein
6-7, ECF No. 15-3 (emphasis in original); Suppl. Decl. Jonathan Klein 11, ECF No. 26. The text was in black on a white background, and the underlined text denoted a hyperlink. Wayfair Ex. 2; Decl. Jonathan Klein 6. Plaintiff accessed the webpage containing the terms and conditions before she purchased the headboard; the webpage was open for 107 seconds. Decl. Jonathan Klein 7; Suppl. Decl. Jonathan Klein 10; Evid. Hr’g Tr. 16:6-11. Later in the day, her first order was cancelled, and the same headboard was ordered in a different color, using a “Submit Order” button without the terms and conditions text immediately below it. Decl. Jonathan Klein 7; Suppl. Decl. Jonathan Klein 10. Plaintiff remembers making the purchases but does not remember clicking on the terms and conditions webpage or reading the terms and conditions. Evid. Hr’g Tr. 25:6-13. The terms and conditions were also available through a link appearing on the bottom of every page of the website. Decl. Jonathan Klein 9. The terms and conditions Plaintiff accessed state that specified websites, including the one accessed by Plaintiff, are provided “subject to…compliance with these Terms of Use.” Wayfair Ex. 3, at 1 (filed as Decl. Jonathan Klein, Ex. A at 1). The terms and conditions contain the following detailed, extensive arbitration agreement in clear typeface: YOU AND Wayfair AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION. Any dispute between you and Wayfair, its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this section, ‘Wayfair’) arising from or relating to these Terms of Use and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms of Use, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration in Suffolk County, Commonwealth of Massachusetts administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules, in effect on the date thereof. Prior to initiating any arbitration, the initiating party will give the other party at least 60-days’ advanced written notice of its intent to file for arbitration. Wayfair will provide such notice by e-mail to your e-mail address on file with Wayfair and you must provide such notice by e-mail to [[email protected]]. During such 60-day notice period, the parties will endeavor to settle amicably by mutual discussions any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives, and the arbitrator will apply applicable law and the provisions of these Terms of Use and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. Wayfair and you agree that any Covered Dispute hereunder will be submitted to arbitration on an individual basis only. Neither Wayfair nor you are entitled to arbitrate any Covered Dispute as a class, representative or private attorney action and the arbitrator(s) will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this section is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms of Use must be made within one (1) year after such claim arose or be forever barred. For purposes of this section, these Terms of Use and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA). Wayfair Ex. 3, at 5-6 (filed as Decl. Jonathan Klein, Ex. A at 5-6). “Wayfair” is defined as “Wayfair LLC and its affiliated brands, including Wayfair.com, Joss & Main, DwellStudio, AllModern, Birch Lane and Wayfair Supply[.]” Wayfair Ex. 3, at 1 (filed as Decl. Jonathan Klein, Ex. A at 1). Plaintiff alleges that she was bitten and her home infested after receiving the headboard contaminated with bedbugs. Compl.
