Starke v. SquareTrade, Inc., 1:16-cv-07036

Plaintiff Adam Starke bought a 2‑Year SquareTrade Electronics Protection Plan via Amazon to cover a CD player he had purchased from Staples; SquareTrade later denied his claim because the plan covered only products bought on Amazon.
The Amazon product page displayed promotional disclosures and a blue "Warranty" hyperlink to pre‑sale terms (Pre‑Sale T&C) that did not include arbitration; Starke did not click that link.
Within 24 hours SquareTrade sent a confirmation email summarizing the plan; a small "Terms & Conditions" link at the bottom led to post‑sale terms (Post‑Sale T&C) that included an arbitration provision, class waiver, and California choice‑of‑law. Starke did not click or view that link.
SquareTrade admits the Pre‑Sale T&C on the Amazon page were outdated and lacked the arbitration clause at the time of purchase.
Starke sued in federal court asserting New York GBL §§ 349–350, Magnuson‑Moss Warranty Act, and unjust enrichment claims; SquareTrade moved to compel arbitration and stay the case.
The district court applied New York law (center‑of‑gravity) and denied the motion to compel, finding no enforceable agreement to arbitrate because Starke lacked actual or reasonable notice and did not manifest assent to the Post‑Sale T&C.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Starke agreed to arbitrate disputes	Starke: never saw or assented to Post‑Sale T&C with arbitration; no reasonable notice.	SquareTrade: purchase and confirmation constituted contract formation; Post‑Sale T&C incorporated by post‑sale delivery and refund right.	No — court found no actual or reasonable notice nor manifestation of assent to the arbitration clause.
Whether post‑sale terms can bind consumer absent affirmative assent	Starke: post‑sale link was inconspicuous and email could be read as the full contract; failure to cancel is not assent.	SquareTrade: post‑sale delivery of service contract is authorized; cancellation window supplied notice/recourse.	No — post‑sale delivery here did not give meaningful opportunity to review; cancellation right does not substitute for notice/assent.
Choice of law for formation question	Starke: center of gravity favors New York (plaintiff resident, subject matter located in NY).	SquareTrade: Post‑Sale T&C contain California choice‑of‑law clause.	New York law applied; court refused to apply contractual choice‑of‑law before formation established.
Whether arbitration‑related gateway questions must go to arbitrator	Starke: threshold formation is for court to decide.	SquareTrade: arbitration clause delegates gateway questions to arbitrator.	Court did not reach delegation argument because it found no enforceable arbitration agreement.

Schnabel v. Trilegiant Corp., 697 F.3d 110 (2d Cir. 2012) (party seeking arbitration bears burden to show agreement exists)
Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002) (online terms must be reasonably conspicuous and assent must be unambiguous)
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (U.S. 1995) (parties may delegate arbitrability to arbitrator only by clear and unmistakable evidence)
AT&T Techs., Inc. v. Communications Workers, 475 U.S. 643 (U.S. 1986) (arbitration is a matter of contract; absent agreement court need not compel arbitration)
Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (internet contracting follows traditional contract principles; notice can be given by repeated exposure)
Nicosia v. Amazon.com, Inc., 834 F.3d 220 (2d Cir. 2016) (must draw reasonable inferences for non‑movant on arbitration motions)
Berkson v. Gogo LLC, 97 F. Supp. 3d 359 (E.D.N.Y. 2015) (articulated a four‑factor test for enforceability of online consumer contracts focusing on notice and manifestation of assent)