Graham v. Bloomberg L.P.
- Vernon Broderick
- 1:22-cv-07015
- U.S. District Court · Southern District of New York
- 14
Graham v. Bloomberg: Judge Broderick required arbitration, denied dismissal, and stayed Graham’s class action.
Justin Graham and the proposed class of similarly situated people he sought to represent must proceed through individual arbitration rather than continue the class action in court; Bloomberg L.P. must participate in that arbitration.
What happened
In Graham v. Bloomberg L.P., Justin Graham brought a proposed class action alleging that Bloomberg violated the federal Video Privacy Protection Act. Bloomberg asked the court to require Graham to arbitrate individually and to dismiss the case.
Graham did not know about the arbitration term when he subscribed to Bloomberg’s news service. The court nevertheless found that Bloomberg’s subscription page clearly linked to its Terms of Service and told users that submitting their information meant agreeing to those terms. The court concluded that the page gave Graham enough notice that purchasing the subscription would accept the arbitration agreement.
Judge Vernon S. Broderick granted Bloomberg’s motion in part and denied it in part. He required Graham to participate in individual arbitration, denied Bloomberg’s request to dismiss the case, and stayed the case while arbitration proceeds. The court did not decide whether Bloomberg violated the Video Privacy Protection Act.
The detailed version
- Graham v. Bloomberg L.P. · No. 1:22-cv-07015
- Vernon Broderick
- Sept. 15, 2023
Background
Justin Graham purchased a subscription to Bloomberg’s news service on February 16, 2021, through Bloomberg’s online subscription page. The page stated: “By submitting my information, I agree to the Privacy Policy and Terms of Service and to receive offers and promotions from Bloomberg.” “Terms of Service” was an underlined link to a page containing Bloomberg’s terms.
Those terms included an arbitration agreement requiring claims relating to Bloomberg’s website to be resolved through final and binding arbitration administered by JAMS. The agreement also stated that claims could not be arbitrated on a class or representative basis. Graham filed a proposed class action alleging that Bloomberg violated the federal Video Privacy Protection Act, 18 U.S.C. § 2710. Bloomberg moved to compel Graham to arbitrate on an individual basis and to dismiss the case.
Arbitration Agreement
The court applied New York contract law to determine whether Graham and Bloomberg formed a valid arbitration agreement. The parties agreed that Graham’s dispute fell within the agreement’s scope, so the only issue was whether Graham agreed to it.
Graham did not have actual knowledge of the arbitration agreement. The court therefore considered whether the subscription page gave him “inquiry notice”—enough information that a reasonably prudent user would investigate the linked terms—and whether his conduct showed assent.
The court found that the page provided inquiry notice. The entire screen was visible without scrolling; the Terms of Service link appeared with the subscription information and the means of purchasing the subscription; the language told the user that submitting information meant agreeing to the Terms of Service; and the link was underlined and readable. The Terms of Service page also prominently identified the arbitration agreement in its opening paragraph and directed users to the section containing it. Based on the page’s design and wording, the court concluded that Graham validly assented to the arbitration agreement by purchasing the subscription.
Stay Rather Than Dismissal
After finding the arbitration agreement valid, the court considered whether to dismiss the case or stay it while arbitration proceeded. The court explained that it had discretion to stay the action even though Graham had not specifically requested a stay. It concluded that staying the case was preferable because it would move the dispute to arbitration without creating an immediately appealable final dismissal.
Disposition
The court’s order states that Bloomberg’s motion was GRANTED IN PART and DENIED IN PART. Graham must participate in arbitration under the agreement. Bloomberg’s request to dismiss the case was denied, and the case was stayed pending the outcome of arbitration. The court directed the parties to submit a joint status letter by the earlier of seven days after the arbitration ended or September 20, 2024. The opinion did not decide the merits of Graham’s claim under the Video Privacy Protection Act.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.