Norcia v. Samsung Telecommunications America, LLC, 845 F.3d 1279

Norcia purchased a Samsung Galaxy S4 from a Verizon store, signed a Verizon "Customer Agreement" at checkout, and took the phone while declining to keep the product box and most materials.
The phone box (which Norcia received briefly opened) contained a 101‑page "Product Safety & Warranty Information" brochure including a Standard Limited Warranty and an arbitration clause covering “all disputes with Samsung” including disputes about sale, condition, or performance; it also provided a 30‑day opt‑out procedure.
Norcia did not opt out of arbitration and did not sign or expressly assent to any Samsung agreement; he later sued Samsung in a California class action for alleged misrepresentations about the phone’s performance and storage (no warranty claims were asserted).
Samsung moved to compel arbitration based on the brochure’s arbitration clause and alternatively argued Norcia was bound by the Verizon Customer Agreement (which referenced arbitration) or that Samsung was a third‑party beneficiary of that agreement.
The district court denied Samsung’s motion; the Ninth Circuit reviewed de novo whether a valid agreement to arbitrate existed under California contract law and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the in‑box Product Safety & Warranty brochure created a binding arbitration contract between Norcia and Samsung	Norcia did not assent; silence/inaction does not form a contract and he had no duty to opt out or return the product	Brochure (like shrink‑wrap or in‑box terms) created a contract upon receipt/retention and silence after a 30‑day opt‑out constitutes acceptance	Held for Norcia: silence/inaction did not show assent; no contract formed because no duty to respond, no benefit retained, and brochure didn’t give notice of a freestanding non‑warranty obligation
Whether Norcia’s signed Verizon Customer Agreement bound him to arbitrate with Samsung or made Samsung a third‑party beneficiary	Norcia argued the Customer Agreement governed his relationship with Verizon only and did not bind him to arbitrate with Samsung	Samsung argued the Customer Agreement incorporated the in‑box terms or made Samsung an intended third‑party beneficiary	Held for Norcia: Customer Agreement did not reference Samsung or incorporate the brochure; Samsung failed to show intent to make it a third‑party beneficiary

AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643 (1986) (arbitration is contractual; parties cannot be required to arbitrate disputes they haven’t agreed to submit)
Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) (FAA embodies national policy favoring arbitration)
Gentry v. Superior Court, 42 Cal. 4th 443 (2007) (employee who signed opt‑out arbitration form manifested intent to use silence as acceptance)
Wall Data Inc. v. L.A. Cty. Sheriff’s Dep’t, 447 F.3d 769 (9th Cir. 2006) (discussed enforceability of shrink‑wrap licenses in context of software licensing)
Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997) (buyer who kept computer beyond 30 days accepted terms enclosed in box)
Knutson v. Sirius XM Radio Inc., 771 F.3d 559 (9th Cir. 2014) (reasonable person would not understand later‑mailed welcome kit and failure to cancel as assent to arbitration)
Schnabel v. Trilegiant Corp., 697 F.3d 110 (2d Cir. 2012) (customers must have notice of terms before silence can be treated as assent)
Golden Eagle Ins. Co. v. Foremost Ins. Co., 20 Cal. App. 4th 1372 (1993) (silence/inaction generally does not constitute acceptance; exceptions exist when there is a duty to respond)
Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal. App. 3d 987 (1972) (offeree not bound by inconspicuous contractual provisions of which he was unaware)