THIS MATTER comes before the Court on Defendant Groupon Goods Inc.'s Motion to Compel Arbitration and Stay Proceedings [Doc. 24]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the Motion is well-taken and will be granted.
BACKGROUND
In December 2013, Plaintiff Lynn Davis received email advertisements from Defendant Groupon Goods, Inc. ("Groupon") promoting Garcinia Cambogia, a weight loss product. Doc. 1 at ¶ 7. On or about December 6, 2013, Plaintiff ordered three bottles, or a three-month supply, of Garcinia Cambogia tablets through Groupon's website. Id. at ¶ 9.
According to the evidence submitted by Groupon, before placing her order, Plaintiff was required to create an account. Doc. 24-1. To create her account, Plaintiff was required to click a box immediately to the left of the words, "I agree to the Terms of Use and Privacy Statement." Doc. 24-2. Further, before finalizing her order, Plaintiff was required to click a button that said "Complete Order." Doc. 43-1 at ¶ 7. Directly below the "Complete Order" button was a sentence stating: "[b]y clicking 'Complete Order' I accept the Terms and Conditions and Privacy Policy." Doc. 24-4. The phrase "Terms and Conditions" contained a hyperlink that permitted the customer to access the Terms of Use by clicking on the phrase "Terms and Conditions." Doc. 43-1 at ¶ 9.
The version of Groupon's Terms of Use that was in effect on December 6, 2013, the date of Plaintiff's purchase of the Garcinia Gambogia tablets, was a 22-page document. The First page had a table of contents, with hyperlinks to each numbered-section, preceded by the following introduction:
Welcome to the Groupon Site. In order to use our Site (as defined below), you must agree to our Terms of Use-The Terms of Use are our "rules of the road"-they are important and contain many legal disclosures that you should read carefully-including terms of sale that apply when you buy something through the Site and terms specifying permissible uses of the Site. If you have any questions about these Terms of Use, contact us here.
*1188Doc. 24-3 at 1. Section 18 of the document was titled, "Arbitration," and provided as follows:
We will make every reasonable effort to resolve any disagreements that you have with Groupon. If those efforts fail, by using this Site you agree that any claim, dispute, or controversy you may have against Groupon arising out of, or relating to, or connected in any way with this Agreement this Site or the purchase or sale of any voucher(s), shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"). You agree further that: (a) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and Groupon; (b) the arbitrator shall apply Illinois law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (c) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or persons or parties who may be similarly situated; (d) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Groupon will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (e) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained therein. If, however, subpart (c) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Groupon shall be entitled to arbitrate their dispute.
Doc. 24-3 at 20.
Plaintiff received the tablets that she had ordered, and began taking them in late January or early February 2014. Doc. 1 at ¶ 11. In March, she began to feel ill and stopped taking the tablets. Id. at ¶ 12. Thereafter, in May 2014, Plaintiff was hospitalized and found to have nearly no liver function. Id. at ¶¶ 17-18. Ultimately, Plaintiff needed a liver transplant, which she received in June 2014, at the Mayo Clinic Hospital in Phoenix, Arizona. Id. at ¶¶ 18, 19. The Mayo Clinic Hospital determined that the Garcinia Cambogia tablets were the probable cause of Plaintiff's acute liver failure. Id. at ¶ 20.
As a result, Plaintiff commenced the instant action against, inter alia , Groupon, alleging claims of strict liability for defective product, strict liability for failure to warn, negligence, and unfair trade practices. Id. at ¶¶ 25-49. Plaintiff also seeks punitive damages based on her claims. Id. at ¶¶ 50-51.
Groupon filed the instant motion to compel arbitration and stay proceedings, arguing that Plaintiff agreed to Groupon's terms of service, and that those terms of service require arbitration of the dispute in this action. Plaintiff opposes Groupon's motion, arguing that no valid arbitration agreement exists, and that even if there is a valid arbitration agreement, her claims *1189are outside the scope of any such agreement.
LEGAL STANDARD
The Federal Arbitration Act ("FAA") applies to arbitration provisions in "a contract evidencing a transaction involving commerce."
The FAA, however, "was not enacted to force parties to arbitrate in the absence of an agreement." Avedon Eng'g, Inc. v. Seatex ,
DISCUSSION
Under Section 3 of the FAA, Groupon moves to compel Plaintiff to arbitrate her claims against it. In support of its motion, Groupon argues that its Terms of Use, to which Plaintiff agreed when completing her purchase of Garcinia Cambogia, contains a valid and binding arbitration provision, and that Plaintiff's claims fall squarely within the scope of that provision. Groupon further requests that the Court stay Plaintiff's claims against it pending resolution of the arbitration, or alternatively, dismiss the instant case in its entirety. Plaintiff opposes Groupon's motion to compel, arguing that no valid agreement to arbitrate exists because: (1) the undisputed evidence does not establish that the parties entered into an arbitration agreement; and (2) the purported arbitration agreement is unconscionable and thus unenforceable under New Mexico law. Plaintiff further argues that her claims do not bear a reasonable relationship to the subject matter of Groupon's Terms of Use, and thus do not fall within the scope of the purported arbitration agreement.
I. A Valid Arbitration Agreement Exists Between the Parties.
A. The Parties Entered into an Agreement to Arbitrate.
Plaintiff's first argument against arbitration is that she never agreed to Groupon's Terms of Use and, consequently, never agreed to the arbitration provision included in those Terms of Use. The Court " 'appl[ies] ordinary state-law principles that govern the formation of contracts to determine whether a party has agreed *1190to arbitrate a dispute.' " Bellman v. i3Carbon, LLC ,
Here, Plaintiff was presented with Groupon's Terms of Use, including the arbitration provision in dispute, as a "clickwrap" agreement-an agreement that "appears on an internet webpage and requires that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction." Feldman v. Google, Inc. ,
"To determine whether a clickwrap agreement is enforceable, courts presented with the issue apply traditional principles of contract law and focus on whether the plaintiffs had reasonable notice of and manifested assent to the clickwrap agreement." Feldman ,
Plaintiff does not argue, and there is no basis to find, that the hyperlink to Groupon's Terms of Use was insufficiently conspicuous. A reasonably prudent internet user would have known of the existence of the terms in Groupon's Terms of Use, which were viewable through the hyperlink. See Whitt ,
Plaintiff's contentions to the contrary are unavailing. First, while Plaintiff is correct that Groupon's counsel's arguments are not evidence, in reaching its decision, the Court is not relying upon Groupon's memoranda of law, but rather upon the evidence submitted therewith. And while Plaintiff argues that Groupon's exhibits are not properly authenticated, she provides no citation to the Federal Rules of Evidence, or any other authority, to support her position. Indeed, case law is to the contrary. See, e.g. , Fteja ,
Further, under Rule 406 of the Federal Rules of Evidence, "[e]vidence of ... an organization's routine practice may be admitted to prove that on a particular occasion *1192the ... organization acted in accordance with the ... routine practice." Hancock ,
Finally, Lochen's declaration states that he is a "Sr. Engineering Manager" for Groupon, and that his statements are based on his familiarity with Groupon's Terms of Service, the process by which Groupon customers consent to the Terms of Use, and the purchase information for Plaintiff's purchase. Lochen's statements "are based on personal knowledge of the standard practice followed" when customers make purchases through the Groupon website.
In support of her argument that genuine disputes of material fact remain regarding the existence of an agreement, Plaintiff points to the testimony in her affidavit that: she "do[es] not recall specifically consenting to any particular terms and conditions to become a Groupon member, or ever reading any such terms or conditions;" "do[es] not recall specifically consenting to any particular terms and conditions to purchase the Garcinia Cambogia product from Groupon, or ever reading such terms or conditions;" and "do[es] not recall seeing any Groupon terms and conditions that pertained to arbitration or a limitation of liability," and if she "had seen such language, [she] would not have understood it to mean that [she] was waiving [her] right to a jury trial for any injury [she] might suffer from the Garcinia Cambogia." Doc. 25-1 at ¶¶ 7, 9-10. Courts routinely hold such failure of memory to be insufficient to invalidate a clickwrap agreement. See Burcham v. Expedia , No. 07CV1963,
In the face of Groupon's evidence that Plaintiff could not have completed her purchase without clicking on the button accepting Groupon's Terms of Use, the fact that Plaintiff does not remember seeing, or agreeing to, Groupon's Terms of Use is insufficient to create a genuine dispute of material fact. See Cordas ,
B. The Parties' Agreement to Arbitrate is Not Unconscionable.
Plaintiff next argues that the arbitration agreement in Groupon's Terms of Use is unenforceable because it is unconscionable. "Unconscionability is an equitable doctrine, rooted in public policy, which allows courts to render unenforceable an agreement that is unreasonably favorable to one party while precluding a meaningful choice of the other party." Rivera v. Am. Gen. Fin. Servs., Inc. ,
1. Substantive Unconscionability
"Substantive unconscionability concerns the legality and fairness of the contract terms themselves, and the analysis focuses on such issues as whether the contract terms are commercially reasonable and fair, the purpose and effect of the terms, the one-sidedness of the terms, and other similar public policy concerns." Rivera ,
Plaintiff first argues that the arbitration provision in Groupon's Terms of Use is substantively unconscionable because it "would require Plaintiff to arbitrate 'any claim, dispute or controversy [she] may have against Groupon,' without imposing a reciprocal obligation upon Groupon to arbitrate any claims it may have against her." Doc. 35 at 9. The arbitration provision of Groupon's Terms of Use states in pertinent part:
We will make every reasonable effort to resolve any disagreements that you have with Groupon. If those efforts fail, by using this Site you agree that any claim, dispute, or controversy you may have against Groupon arising out of, or relating to, or connected in any way with this *1194Agreement this Site or the purchase or sale of any voucher(s), shall be resolved exclusively by final and binding arbitration.... [I]f any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained therein. If, however, subpart (c) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Groupon shall be entitled to arbitrate their dispute.
Doc. 24-3 at 20.
Other than the last quoted sentence, which refers to disputes of both the customer and Groupon, this provision primarily addresses the customer's agreement to submit her claims to arbitration. Nowhere, however, does the Terms of Use set forth a one-sided provision reserving to Groupon, either explicitly or implicitly, a non-arbitration option for its own claims. See Padilla v. State Farm. Mut. Auto. Ins. Co. ,
Illinois precedent does not dictate a different result: so long as a plaintiff receives consideration for her agreement to arbitrate, even where that agreement only covers her claims against the defendant, Illinois courts will enforce the defendant's arbitration provision. Sherman v. AT & T Inc. , No. 11C5857,
Plaintiff further argues that the arbitration provision in Groupon's Terms of Use is substantively unconscionable because "Groupon has reserved 'the right at all times to discontinue or modify any part of' the Terms of Use at its sole discretion." Doc. 35 at 9. Groupon's Terms of Use contains the following provision, entitled "Modification of this Agreement":
We reserve the right at all times to discontinue or modify any part of this Agreement as we deem necessary or desirable.... If you have an account on the Site, any changes to these Terms of Use will be effective upon the earlier of our dispatch of an email notice to you or our posting of notice of the changes on our Site, provided that, these changes will not apply to vouchers purchased prior to the effective date of such changes. These changes will be effective immediately for new and existing users of our Site and for all vouchers purchased after the effective date of the change....
Doc. 24-3 at 14.
This modification provision is separate and distinct from the challenged arbitration provision. Where, as here, the enforceability of an arbitration provision is at issue, "a party's challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate." Rent-A-Center, West, Inc. v. Jackson ,
Moreover, any concerns that the modification provision renders the arbitration agreement "unreasonably one-sided" are dispelled by the fact that the Terms of Use does not purport to render modifications retroactively applicable to disputes arising from purchases made through its website prior to the modification date. Flemma ,
2. Procedural Unconscionability
Procedural unconscionability concerns "the particular factual circumstances surrounding the formation of the contract, including the relative bargaining strength, sophistication of the parties, and the extent to which either party felt free to accept or decline terms demanded by the other." Rivera ,
Plaintiff is correct that, when determining whether a contract is procedurally unconscionable, the Court should consider whether the contract is one of adhesion: "a standardized contract offered by a transacting party with superior bargaining strength to a weaker party on a take-it-or-leave-it basis, without opportunity for bargaining."
Here, while Groupon's Terms of Use "appears to be a standardized contract and thus satisfies the first element of an adhesion contract," Plaintiff has not demonstrated either that Groupon "had a superior bargaining position," or that Plaintiff had no opportunity to negotiate. Thompson v. THI of N.M. at Casa Arena Blanca, LLC , No. 05-1331,
Similarly, Plaintiff has pointed to no impropriety during the creation of her Groupon account or her purchase through Groupon's website that deprived her of meaningful choice-"nothing indicates that she was incapable of understanding the arbitration clause or that [Groupon] used 'sharp practices or high pressure tactics' " to secure her consent to the Terms of Use. THI of N.M. at Hobbs Center, LLC v. Spradlin ,
Assuming arguendo that the Terms of Use was a contract of adhesion, Plaintiff has failed to demonstrate that the terms of the parties' agreement were "patently unfair" to her. Plaintiff contends that the arbitration provision "amounts to her agreement to surrender her right to a jury trial in exchange for nothing more than the opportunity to buy a product from Groupon." Doc. 25 at 10. This contention, however, suggests only that the consideration provided by the respective parties was not of equivalent value. While "a valid contract requires mutuality of obligation," the requirement of mutuality "does not require that the consideration provided by both parties be identical." Ruegsegger v. W. N.M. Univ. Bd. of Regents ,
II. Whether Plaintiff's Claims are Subject to Arbitration is for the Arbitrator to Decide.
Citing Clay v. N.M. Title Loans, Inc. ,
Questions of arbitrability thus "encompass two types of disputes: (1) disputes about whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement; and (2) threshold disputes about who should have the primary power to decide whether a dispute is arbitrable."
In Belnap , the parties' agreement contained an arbitration provision that included the following language: "The arbitration shall be administered by JAMS and conducted in accordance with its Streamlined Arbitration Rules and Procedures (the "Rules"), except as provided otherwise herein." Id. at 1276. In turn, JAMS Rule 8(c) provides:
*1198Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.
Id. at 1281 (emphasis added). The Court found that the "plain language" of the parties' agreement established "the JAMS Rules as the default controlling rubric," and as a result, concluded that the parties "incorporated the JAMS Rules into their Agreement." Id. at 1282, 1283.
Based on its conclusion that the parties incorporated the JAMS Rules into their agreement, the Court determined that the parties "clearly and unmistakably agreed to submit arbitrability issues to an arbitrator, including disputes over the interpretation or scope of the agreement under which arbitration was sought." Id. at 1284. Because the parties "clearly and unmistakably agreed to arbitrate arbitrability," the Court further held that "the district court erred when it determined the arbitrability of [the plaintiff's] claims instead of deferring that determination to an arbitrator." Id. Thus, under Belnap , "when the parties clearly and unmistakably agree[ ] to arbitrate arbitrability, all questions of arbitrability-including the question of whether the claims fall within the scope of the agreement to arbitrate-[must] be resolved by an arbitrator." Id.
In the instant case, the arbitration provision in Groupon's Terms of Use states in relevant part that any claim, dispute or controversy:
arising out of, relating to, or connected in any way with this Agreement this Site or the purchase or sale of any voucher(s) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures").
Doc. 24-3 at 20 (emphasis added). In turn, AAA Rule 7, which is substantively identical to JAMS Rule 8(c), states that "[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim." AAA, Commercial Arbitration Rules and Mediation Procedures ¶ R-7(a) (2013).
As Belnap instructs, by including in the arbitration agreement specific language indicating that the AAA Rules apply to the arbitration of any disputes between the parties, the parties established the AAA Rules "as the default controlling rubric," and as a result, "incorporated the AAA Rules into their agreement." Belnap ,
The fact that the agreement in the instant case incorporates the AAA Rules, while the agreement at issue in Belnap incorporated the JAMS Rules, is of no moment. The AAA Rules and the JAMS Rules contain substantively identical provisions designating the arbitrator as the person to determine questions of arbitrability. Indeed, in confirming the "soundness" of its determination, the Court in Belnap explained that, "in an analogous context, all of our sister circuits to address the issue *1199have unanimously concluded that incorporation of the substantively identical (as relevant here) AAA Rules constitutes clear and unmistakable evidence of an agreement to arbitrate arbitrability."
Nor do the particular circumstances of this case-Plaintiff's agreement to arbitrate was manifested only through her online consent to Groupon's Terms of Use, and thus to its arbitration provision, by clicking on a button in order to complete her purchase order-alter this analysis. In a similar case, Cordas v. Uber Technologies, Inc. , the court found that the plaintiff, by setting up an online account and assenting to Uber's terms and conditions in order to complete his account setup, had agreed to the arbitration provision contained in Uber's terms and conditions.
In a similar fashion, the parties here clearly and unmistakably agreed to arbitrate arbitrability. Accordingly, all questions of arbitrability-including the question Plaintiff raises as to whether her claims reasonably relate to the subject matter of the parties' agreement to arbitrate-must be resolved by an arbitrator. Under Belnap , this Court has no discretion to decide whether Plaintiff's claims are outside the scope of the arbitration provision in Groupon's Terms of Use, but rather must defer that determination to the arbitrator.
III. This Court Must Stay the Instant Proceedings.
"Regarding a suit brought in federal court 'upon any issue referable to arbitration under an agreement in writing for such arbitration,' the [FAA] provides the district court 'shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.' " Adair Bus Sales v. Blue Bird Corp. ,
CONCLUSION
The undisputed facts demonstrate that the parties entered into an agreement to *1200arbitrate. That agreement is not unconscionable under either New Mexico law or Illinois law. The undisputed facts further demonstrate that the parties agreed that it is for the arbitrator, not this Court, to determine whether Plaintiff's claims fall within the scope of their agreement to arbitrate. Having found that the issues in this case should be referred to arbitration, the proper course is for this Court to stay the action pending arbitration.
IT IS THEREFORE ORDERED that Defendant Groupon Goods Inc.'s Motion to Compel Arbitration and Stay Proceedings [Doc. 24] is GRANTED as follows:: (1) Groupon's request for an order compelling arbitration of Plaintiff's claims is GRANTED ; (2) this Court ORDERS Plaintiff to arbitrate the claims asserted in this action against Groupon in accordance with the terms of the arbitration provision in Groupon's Terms of Use; and (3) Groupon's request for an order to stay this lawsuit pending the completion of arbitration is GRANTED.
Plaintiff relies on New Mexico law in her opposition to Groupon's motion. In its reply, Groupon argues that Illinois law applies, because the arbitration provision in its Terms of Use contains a choice of law provision applying Illinois law. The Court analyzes the relevant issues under both New Mexico and Illinois law.