Second Circuit – Arbitration: Sudakow v. CleanChoice Energy

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United States Court of Appeals for the Second Circuit

Arbitration — Inquiry notice — Implied assent

Sudakow v. CleanChoice Energy

24-1988

Judges Carney, Park, and Kahn

Background: The plaintiff contracted to purchase electricity from the defendant. Three weeks later, the defendant sent a package containing a form with new dispute-resolution terms, including an arbitration provision. The plaintiff did not sign. The defendant moved to compel arbitration and was denied. On appeal, the defendant argues that the plaintiff had inquiry notice of the subsequent terms and implicitly assented to those terms by making service payments.

Ruling: The Second Circuit affirmed. The court held that the plaintiff lacked inquiry notice because the defendant failed to present the arbitration provision in a clear and conspicuous way. A reasonable person would not have believed that submitting payments constituted assent.

D. Gregory Blankinship, of Finkelstein, Blankinship, Frei-Pearson & Garber, for the plaintiff-appellee; Michael D.Matthews, Jr., of McDowell Hetherington, for the defendant-appellant.