In March 2018, Defendant allegedly mailed Plaintiff a debit card. (Compl. ¶ 15.) However, Plaintiff never received the card and alleges that someone stole it from her mail. (Id. ¶¶ 16-17.) Between March 10 and March 22, 2018, the card was used to make $30.946.59 of transactions and withdrawals around the New York City area, all of which Plaintiff alleges were unauthorized. (Id. ¶¶ 18-19.) Because Plaintiff generally wrote checks to withdraw funds or make purchases and rarely used the debit card associated with the account, the allegedly unauthorized use of the debit card and the purchases themselves were inconsistent with Plaintiff's purchasing history. (Id. ¶¶ 14, 20-21.) Additionally, between March 16 and March 18, 2018, a male individual placed multiple calls to Defendant claiming to be Plaintiff, who is female. (Id. ¶ 23.) Defendant did not notify Plaintiff of the unusual account activity or suspicious phone calls. (Id. ¶¶ 22, 26.)On March 28, 2018, Defendant called Plaintiff and informed her that her account lacked funds. (Id. ¶ 27.) Until this point, Plaintiff had been unaware of the unusual transactions and she formally disputed them that same day. (Id. ¶¶ 28-29.) In a letter dated April 9, 2018, Defendant informed Plaintiff that it had conducted an investigation into the unauthorized transactions and determined that it was "very likely that an unauthorized party intercepted, activated, and used [Plaintiff's] Visa debit card before [Plaintiff] received it in the mail." (Id. ¶¶ 30-31.) The letter further requested that Plaintiff assist in the investigation by filing a police report and completing an affidavit of fraud, which she did on April 11, 2018. (Id. ¶¶ 32-33.)In a letter dated April 11, 2018, Defendant informed Plaintiff that its investigation "determined that an error did not occur," that the matter was considered resolved, and that it would not be crediting Plaintiff's account. (Id. ¶ 34.) Plaintiff requested documentation explaining Defendant's decision but did not receive any. (Id. ¶¶ 35-36.) On May 9, 2018 Plaintiff called Defendant to inquire further, and Defendant informed her that the card had been activated with her social security number but did not elaborate further. (Id. ¶¶ 37-39.) Since these events, Plaintiff has received numerous letters from credit card companies rejecting credit card applications that she alleges she did not fill out, furthering Plaintiff's belief that her identity was stolen. (Id. ¶ 40.)
In arguing that no valid agreement exists, Plaintiff does not argue that the Scottrade Application and SBAA itself could not amount to an enforceable agreement to arbitrate. Instead, Plaintiff contends that Defendant has not proven that the version of the SBAA in the record is the version that accompanied the Scottrade Application. Specifically, Plaintiff argues that Candy Derbak, the individual who signed the declaration to which the Application and SBAA were attached, did not become a Scottrade employee until five years after Ms. Liu signed the Scottrade Application and thus "has no personal knowledge of . . . which version, if any, of the SBAA was provided to [Plaintiff]." (Opp. at 3.) While that may be true, "qualified witnesses may make admissible statements based on their review of business records." Kernaghan v. Forster & Garbus, LLP, No. 18-CV-0204 (SFJ), 2019 WL 981640, at *4 (E.D.N.Y. Feb. 25, 2019); see also Fed. R. Evid. 803(6)(b). Even a cursory review of Ms. Derbak's declaration makes clear that she has amply satisfied the requirements of the federal rules applicable to business records and, as such, her testimony on this matter is admissible. (See Decl. of C. Derbak ¶¶ 3-5.) Accordingly, the court finds Plaintiff's signature on the Scottrade Application constitutes a clear and outward manifestation of her assent to be bound by the SBAA and its arbitration provision. That provision is therefore enforceable.Having resolved that matter, the court turns its attention to the second potential agreement between the parties, the TDACA. Unlike the SBAA, Plaintiff never affirmatively signed the TDACA. Defendant, however, contends that the emails it sent to Plaintiff during the transition period were sufficient to put her on notice that the transition to TD Ameritrade would be accompanied by a new account agreement, and that Plaintiff assented to the terms of that agreement by continuing to use her account following the transition. (See Reply at 3-4.)In order for Plaintiff's silence to constitute acceptance of the TDACA, she must have at least been on inquiry notice of its terms. See, e.g., Arnaud v. Doctor's Assocs., Inc., No. 18-CV-3703 (NGG), 2019 WL 4279268, at *5 (E.D.N.Y. Sept. 10, 2019). Under New York law,2 this determination is made with reference to "whether the term was obvious, or whether it was called to [the party's] attention." Starke, 913 F.3d at 289. "This often turns on whether the contract terms were presented . . . in a clear and conspicuous way." Id.In this case, the TDACA and its arbitration provision were not sufficiently conspicuous for Plaintiff to have been on inquiry notice. The account transition emails repeatedly assured Plaintiff that the transition would occur "automatically," and (in large text) that "there [was] nothing [she] need[ed] to do." (E.g., Email 1.) Only by navigating to the Transition Hub via a link only present in the fourth and sixth emails, and then navigating to the Client Agreement link once in the Transition Hub, would Plaintiff have been able to access the TDACA. (Email 4; Transition Hub.) Even then, however, Plaintiff would still have had no outward indication that the TDACA contained an arbitration provision until she had read to page 8 of 9, where the provision was located, albeit in bold typeface. (See TDACA at 8.) This confusing maze of links and forms falls far short of the "clear and reasonably conspicuous" notice on "uncluttered" pages that courts have previously held sufficient to bind a party to an arbitration agreement. Meyer, 868 F.3d at 78-79 (applying California law); see also, e.g., Sgouros v. TransUnion Corp., 817 F.3d 1029, 1035-36 (7th Cir. 2016) (arbitration provision was not binding where notice was not conspicuous and company's website was "actively mislead[ing]" (applying Illinois law)); Applebaum v. Lyft, Inc., 263 F. Supp. 3d 454, 466-67 (S.D.N.Y. 2017) (arbitration provision in terms of service not sufficiently conspicuous where, inter alia, means to access terms of service was unclear) (applying New York law)). Accordingly, the court finds that Plaintiff has not assented to the TDACA, and the SBAA remains the only enforceable agreement between the parties.= = = = =Footnote 2: The parties do not dispute or even attempt to discern which state's law should apply to resolve this question, an issue which the court resolves with reference to New York choice-of-law rules. See Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998).As noted, supra, Plaintiff resides in New York. Defendant is headquartered in Nebraska, which does not appear to have a robust body of law relating to this specific issue; the court was only able to locate a single case in which a Nebraska court considered the enforceability of so-called "clickwrap" agreements (although that court, relying on a Tenth Circuit decision, conducted a similar inquiry to that which New York courts conduct). See Bell v. Care.com, No. Cl. 14-4139, 2016 WL 1258333, at *2 (Neb. Dist. Ct. Mar. 22, 2016). However, New York and Nebraska both adhere to the general underlying rule on which that inquiry is based, i.e., that contracts cannot be formed absent mutual assent by the parties thereto. Compare Gibbons Ranches, LLC v. Bailey, 289 Neb. 949, 953-54 (2015) with Cullinane v. Beverly Enterprises-Nebraska, Inc., 300 Neb. 210, 229 (2018) with Arnav Indust., Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 N.Y.2d 300, 304-05 (2001). As such, the court has no reason to suspect that Nebraska courts would resolve this issue differently from New York courts and therefore applies New York law. See Int'l Bus. Mach. Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137, 143 (2d Cir. 2004) ("In the absence of substantive difference [between the law of two jurisdictions] . . . a New York court will dispense with choice of law analysis; and if New York law is among the relevant choices, New York courts are free to apply it.").