265 F. Supp. 3d 358
S.D.N.Y.2017Background
- Plaintiff David Weiss sued Macy’s under the ADA alleging disability-based harassment, failure to accommodate, and wrongful termination; Macy’s moved to compel arbitration under its Solutions InSTORE program.
- Macy’s rolled out a multi-step internal dispute process in 2003; Step 4 was binding arbitration. Macy’s held informational sessions and mailed employees a packet (2003 and 2004) containing a Plan Document and an Election Form.
- The Election Form instructed employees to return the form ONLY IF THEY DO NOT WANT TO BE COVERED BY THE BENEFITS OF ARBITRATION; Macy’s treated failure to return the form as election into arbitration.
- Macy’s submitted declarations showing the packets were mailed to Weiss’s home using standard procedures; Weiss denied ever receiving the mailings and said he would have opted out.
- The court assumed Macy’s mailings give rise to a rebuttable presumption of receipt but resolved the motion on contract-formation grounds, holding no arbitration agreement existed.
Issues
| Issue | Weiss' Argument | Macy’s Argument | Held |
|---|---|---|---|
| Whether a binding arbitration agreement was formed by Macy’s mailing the Election Form | Weiss: No contract; form was ambiguous and he never agreed to arbitrate | Macy’s: Silence (failure to return form) constitutes acceptance and binds employees to arbitrate | No — no offer and no acceptance; no contract to arbitrate formed |
| Whether silence/continued employment can constitute acceptance of arbitration | Weiss: Silence does not equal acceptance absent clear notice or deception | Macy’s: Failure to return form (and continued employment) equals acceptance | No — silence alone does not constitute acceptance; Macy’s did not present arbitration as a condition of employment |
| Whether Macy’s mailings were received (and thus notice given) | Weiss: He did not receive the packets and would have opted out | Macy’s: Declarations create rebuttable presumption of receipt under NY law | Court assumed presumption but found decision unnecessary because absence of offer/acceptance disposes of motion |
Key Cases Cited
- Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468 (arbitration depends on consent; FAA does not compel arbitration absent agreement)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (state contract law governs formation of arbitration agreements)
- Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (elements required for contract formation under New York law)
- Fiveco, Inc. v. Haber, 11 N.Y.3d 140 (N.Y. rule: arbitration requires clear, explicit, unequivocal agreement)
- Waldron v. Goddess, 61 N.Y.2d 181 (arbitration agreements must not depend on implication)
- Manigault v. Macy’s E., LLC, [citation="318 F. App'x 6"] (2d Cir.) (unpublished summary order holding non-return of Macy’s election form bound employee to arbitration; district court declined to follow)