Ballou v. Asset Marketing Services, LLC, 0:21-cv-00694

Plaintiffs (Ballou, Williamson, Culver) are elderly customers who purchased commemorative/collector coins from Asset Marketing Services, LLC (AMS) by telephone between 2013–2019 and allege fraudulent misrepresentations about value/quality.
AMS’s website terms and conditions included an arbitration clause; invoices shipped with orders previously contained those terms (front/back changes in Jan. 2019). AMS also sent confirmation emails with a "Terms and Conditions" hyperlink and used a post‑order "Verification Process" for high‑value telephone orders.
In 2016 the Minnesota Department of Commerce entered a Consent Order against AMS forbidding AMS from relying on written terms/conditions in bullion sales unless disclosed per statute or by signed written agreement (effective Dec. 5, 2016).
AMS moved to compel arbitration and stay the consolidated Ballou and Culver actions, arguing shrinkwrap/clickwrap acceptance via invoices, emails, and the Verification Process. Plaintiffs opposed and moved to strike portions of AMS’s declarations.
The Court denied AMS’s motions to compel arbitration and to stay, concluding AMS failed to show a valid arbitration agreement and that the 2016 Consent Order bars AMS from relying on its terms; the Court also denied Plaintiffs’ motions to strike as procedurally improper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of arbitration agreement (shrinkwrap/clickwrap formation)	No assent: contracts formed by phone; plaintiffs never saw or agreed to arbitration	Plaintiffs accepted terms by keeping product >30 days, invoices, confirmation email link, and Verification Process	No valid arbitration agreement; AMS did not show shrinkwrap/clickwrap assent pre‑formation or actual notice
Adequacy of notice / Verification Process	Insufficient actual or constructive notice; no evidence plaintiffs saw terms or clicked/acknowledged them	Confirmation emails, invoice language, and Verification Process gave notice and created acceptance	Verification occurred after orders; no evidence plaintiffs were notified or manifested assent; notice insufficient
Enforceability/effect of 2016 Consent Order	Consumers can enforce Consent Order to block AMS relying on terms not properly disclosed	Plaintiffs lack standing as third‑party strangers to consent decree	Plaintiffs are intended beneficiaries and may enforce; AMS failed to show compliance, so cannot rely on terms including arbitration
Motions to strike portions of AMS’s declarations	Certain declarant statements lack personal knowledge under Rule 56(e)	Declarations properly submitted to support the motion	Motions to strike are procedurally improper under controlling local/federal rules and are denied

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (federal policy favors arbitration)
Howsam v. Dean Witter Reynolds, 537 U.S. 79 (2002) (who decides gateway questions)
Shockley v. PrimeLending, 929 F.3d 1012 (8th Cir. 2019) (moving party bears burden to prove valid arbitration agreement)
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (shrinkwrap/clickwrap can be enforceable when notice and assent shown)
Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997) (upholding shrinkwrap acceptance where buyer had notice and opportunity to return)
Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002) (third parties generally cannot enforce consent decrees unless intended beneficiaries)
Grandoe Corp. v. Gander Mountain Co., 761 F.3d 876 (8th Cir. 2014) (treatment of post‑formation website terms and contractual assent)
Lemmer v. IDS Props., Inc., 304 N.W.2d 864 (Minn. 1981) (UCC principles on when post‑delivery terms are additional proposals)