William Ballou v. Asset Marketing Services, LLC, 46 F.4th 844

Background

Three seniors (Ballou, Williamson, Culver) bought high‑priced collectible coins from Asset Marketing Services, LLC (doing business as GovMint.com); purchases occurred primarily by phone and totaled hundreds of thousands of dollars.
Minnesota Commissioner entered a Consent Order with AMS restricting reliance on written terms for bullion/product sales unless disclosed per Minn. Stat. § 80G.07 or there was a signed written purchase agreement.
Plaintiffs sued AMS in District of Minnesota for consumer fraud, deceptive trade practices, and violations protecting seniors; cases consolidated.
AMS moved to compel arbitration based on Terms and Conditions referenced on website, invoices, emails, and some phone scripts; district court denied the motion.
Eighth Circuit held Minnesota law applies, concluded UCC § 2‑207 (not shrinkwrap/Hill) governs many phone orders, found genuine disputes of material fact about whether arbitration terms became part of specific contracts, and reversed/remanded for trial on arbitrability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether phone orders/invoices formed contracts incorporating AMS’s arbitration clause (shrinkwrap vs § 2‑207)	Plaintiffs: they were offerors who formed oral contracts by phone; invoices were written confirmations proposing additional terms, not offers.	AMS: invoices/packaging invoked Terms and Conditions (shrinkwrap) and thus bound buyers to arbitration.	Court: Under Minnesota law (Lemmer), buyers were offerors; § 2‑207 applies. Genuine issues of material fact exist whether particular invoices incorporated the arbitration clause; remand for trial.
Whether post‑sale verification calls/scripts created assent to Terms & Conditions (including arbitration)	Plaintiffs: often gave no affirmative assent; interruptions or lack of clear acceptance show no meeting of minds.	AMS: verification script referenced Terms and Conditions and URL; affirmative answers in some calls show assent or inquiry notice.	Court: Some orders may have valid assent, but factual disputes (frequency, content, affirmative assent) preclude resolution on motion.
Whether emails or a Customer Account Agreement bound Plaintiffs to arbitration	Plaintiffs: did not see/acknowledge most emails; no evidence they manifested assent; limited web purchases.	AMS: some emails/hyperlinks referenced terms; Culver signed a Customer Account Agreement purporting to govern all transactions.	Court: Fact questions whether emails gave inquiry notice; Customer Account Agreement lacks shown consideration—so disputed; remand.
Whether Minnesota Consent Order bars AMS from enforcing arbitration and whether Plaintiffs can enforce that Order	Plaintiffs: Consent Order prevents AMS from relying on written terms; private consumers can enforce it to avoid arbitration.	AMS: Order should not block arbitration; new appellate arguments (e.g., arbitrability of Order) asserted.	Court: Plaintiffs lack standing to enforce the Consent Order (no intent to create private enforceable rights). Court declined AMS’s new arguments raised first on appeal.

Key Cases Cited

Foster v. Walmart, Inc., 15 F.4th 860 (8th Cir. 2021) (standard for reviewing denial of motion to compel arbitration; factual disputes require trial).
Duncan v. Int’l Markets Live, Inc., 20 F.4th 400 (8th Cir. 2021) (treats contested arbitration motions like summary judgment; remand if factual dispute exists).
First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (apply ordinary state contract law to decide whether parties agreed to arbitrate).
Rent‑A‑Center, W., Inc. v. Jackson, 561 U.S. 63 (2010) (arbitration is a matter of contract; arbitrability depends on parties’ agreement).
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (shrinkwrap upheld where seller is offeror and buyer accepts by conduct after timely return opportunity).
Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997) (shrinkwrap where vendor was offeror and acceptance could be by not returning goods).
Lemmer v. IDS Props., Inc., 304 N.W.2d 864 (Minn. 1980) (applies UCC § 2‑207 to phone orders: buyer is offeror, vendor’s delivery document is written confirmation proposing additional terms).
PCS Nitrogen Fertilizer, L.P. v. Christy Refractories, L.L.C., 225 F.3d 974 (8th Cir. 2000) (under § 2‑207, additional terms are proposals unless acceptance is expressly conditional; mere payment may not show assent).