The Ninth Circuit issued two similar opinions arising out of Samsung’s appeals of orders denying arbitration in two putative class actions filed against it. The claims against Samsung allege that the smartphone maker misrepresented the performance of the Galaxy S3 and S4 smartphones. Samsung attempted to compel arbitration based on an arbitration clause in the “Product Safety and Warranty Brochure” included in the packaging of the phones. Applying California law, the Ninth Circuit found that the arbitration clause in the warranty brochures was not binding on the plaintiffs with respect to the claims here. The court further held that Samsung failed to establish an exception to the rule that an offeree’s silence cannot satisfy affirmative consent. Further, the court held that the brochure was not an “in-the-box” contract. The Ninth Circuit also rejected Samsung’s argument that it could rely on the arbitration provisions in the plaintiffs’ respective customer agreements with their cell phone carriers; Samsung was neither a signatory to, nor a third-party beneficiary of those agreements. Norcia v. Samsung Telecommunications America, LLC, Case No. 14-16994 (9th Cir. Jan. 19, 2017); Dang v. Samsung Electronics Co., Ltd., Case No. 15-16768 (9th Cir. Jan. 19, 2017).
