NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4283-19
JEFFREY PARRELLA,
on behalf of himself and
all others similarly situated,
Plaintiff-Appellant,
v.
SIRIUS XM HOLDINGS, INC.
d/b/a SIRIUS XM SATELLITE
RADIO, SIRIUS XM RADIO INC.,
and JAMES E. MEYER,
Defendants-Respondents.
Argued November 9, 2021 – Decided January 18, 2022
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket Number L-1207-19.
Andrew R. Wolf argued the cause for appellant (The
Dann Law Firm, PC and The Law Office of Henry P.
Wolfe LLC, attorneys; Andrew R. Wolf, Bharati O.
Sharma and Henry P. Wolfe, on the briefs).
Harry P. Morgenthau (Kramer Levin Naftalis & Frankel
LLP) of the New York bar, admitted pro hac vice,
argued the cause for respondents (Robinson Miller
LLC, Harry P. Morgenthau, Mark A. Baghdassarian
(Kramer Levin Naftalis & Frankel LLP) of the New
York and Connecticut bars, admitted pro hac vice, and
Aaron M. Frankel and Eileen M. Patt (Kramer Levin
Naftalis & Frankel LLP) of the New York bar, admitted
pro hac vice, attorneys; Michael J. Gesualdo, Mark A.
Baghdassarian, Aaron M. Frankel, Eileen M. Patt, and
Harry P. Morgenthau, on the brief).
PER CURIAM
Plaintiff, in his individual capacity and on behalf of a putative class action,
filed a complaint against defendants, satellite radio providers,1 alleging they
falsely advertised discounts to induce consumers to reactivate their Sirius radio
devices. Defendants moved to dismiss the action and compel arbitration under
the parties' customer agreement (agreement). The trial court granted the motion,
finding mutual assent to the arbitration clause was implied from plaintiff's
"usage—payment, usage of [defendants'] service, [and] extended relationship
history [with defendants] . . . ." Therefore, the arbitration agreement was
enforceable. We affirm.
1
Defendant James E. Meyer is the Chief Executive Officer of Sirius XM
Holdings, Inc. We refer to the entities and individual collectively as defendants.
A-4283-19
2
I.
In December 2017, plaintiff received a mailed advertisement from
defendants offering three years of defendants' satellite radio service for a
discounted price of $99.00. The offer contained the following language: "See
our Customer Agreement for complete terms." According to Catherine Petra,
defendants' Vice President, defendants sent plaintiff this advertisement to
incentivize him to reactivate his 2009 Jeep Grand Cherokee radio receiver.
Plaintiff has utilized defendants' services for many years. In 2005,
plaintiff purchased services for two portable radios (the 4180 account and 6008
account). In 2009, plaintiff received a free trial subscription when he purchased
his Jeep Grand Cherokee, and subsequently purchased a subscription after the
expiration of the free trial (the 1453 account). Plaintiff terminated his 6008
account in 2008, his 1453 account in 2010, and his 4180 account in 2011.
When plaintiff purchased a Toyota Highlander in 2017, it included a free
three-month trial subscription. Plaintiff did not renew the subscription at the
end of the free trial period.
When plaintiff received the promotion from defendants in December
2017, he went to defendants' website and attempted to reactivate his 1453
account previously used in his 2009 Jeep Grand Cherokee. However,
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3
defendants' website did not allow him to purchase that plan. Instead, the website
directed him to choose from a list of different and more expensive service plans.
After calling defendants' service number, the service representative
informed plaintiff that the three-year, $99.00 promotion was not available for
his 2009 Jeep Grand Cherokee. The service representative stated: 2
Okay. Well I tried double-checking just with my
supervisor and the offer for—I mentioned earlier that
we don't usually have this offer, the $99 for three years.
It's actually radio-specific, that's the reason why I
checked the radio ID several times with you . . . . I'm
not showing here . . . an option for the three years for
$99.
Plaintiff responded, stating, "I don't know what you're telling me. I have
it in my hands . . . . Just so you know, what you're doing is illegal . . . ." Plaintiff
requested the assistance of a supervisor. Defendants' service representative
responded that they would "bring this issue to the higher department . . . and
[will] mak[e] a note on this." When the representative asked plaintiff if he
wanted to purchase a different service subscription for his Jeep, the following
exchange took place:
2
The call was recorded. Defendants attached a transcript of the call as an
exhibit in support of their motion to dismiss the complaint and compel
arbitration.
A-4283-19
4
[DEFENDANTS' REPRESENTATIVE:] So you would
still want to activate [the radio subscription] with the
offer for 12 months for $60?
[PLAINTIFF:] Sure. Well, yes and no. Like I said, I'll
activate it now but that I'm assuming it will be corrected
[to three years for $99.00] because I'm holding a valid
offer in my hands, so—
[DEFENDANTS' REPRESENTATIVE:] Sure.
....
[DEFENDANTS' REPRESENTATIVE:] After fees and
taxes, that will be . . . $73.18 and we will charge you
[o]n February 8, [2018]. Okay you still have two
months to . . . make some changes, and you have a trial
for two months. [3] And I will escalate this issue to the
higher department so they . . . will know what
happened. Okay?
[PLAINTIFF:] Thank you.
Plaintiff provided his credit card information for the billing. The
representative repeated the details of the service selected by plaintiff:
[DEFENDANTS' REPRESENTATIVE:] The 12
months select plan you chose starts at the end of your
trial on February 8, 2018. Your bill is $73.04 for the
initial billing . . . . Your service will automatically
renew on February 8, 2019. Your renewal will bill
every month at the current rate for an estimated total
charge of $19.46, which includes fees and taxes. You
3
Defendants gave plaintiff a two-month trial period before his credit card would
be charged and the one-year subscription period would begin. Therefore, his
subscription period did not start until February 2018.
A-4283-19
5
may cancel at any time by calling us . . . . Your
customer agreement can be found on our website,
Siriusxm.com, or you can request it at any time by
phone . . . . Do you accept these terms, and may I have
your permission to charge your card for $73.04 at the
end of your trial on February 8, 2018 minus any credits
on your account and for all future charges?
[PLAINTIFF:] Uh, yes, with the reservation of—that I
have mentioned before. But yes.
[(emphasis added)].
Plaintiff's credit card was charged as described. He did not hear back from
defendants regarding his "reservation," nor did he contact defendants at any time
over the next year.
Defendants sent plaintiff a welcome kit that included the agreement.
Corporate records reflected the agreement was mailed on December 28, 2017,
and the estimated arrival date at plaintiff's address was January 10, 2018,—
before the paid subscription period began and before plaintiff's credit card was
charged. On the envelope was written "IMPORTANT SUBSCRIBER
INFORMATION INSIDE." At the bottom of the cover letter, it stated: "See our
Customer Agreement enclosed or online at www.siriusxm.com. Please be sure
to read it."
A-4283-19
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The agreement stated: "This Customer Agreement . . . applies to [each]
paid, trial, or other subscription . . . in the Service Area . . . and [on] the website
. . . available to [s]ubscribers and others at www.siriusxm.com."
IF YOU DO NOT ACCEPT [THE AGREEMENT'S]
TERMS, PLEASE NOTIFY US IMMEDIATELY
AND WE WILL CANCEL YOUR SUBSCRIPTION.
IF YOU DO NOT CANCEL YOUR SUBSCRIPTION
WITHIN THREE BUSINESS DAYS OF THE START
OF YOUR PLAN, IT WILL MEAN THAT YOU
AGREE TO THIS AGREEMENT WHICH WILL BE
LEGALLY BINDING ON YOU.
The agreement's arbitration provision labeled "RESOLVING
DISPUTES" is located in the second column of the brochure. It states:
ANY DISPUTE MAY BE RESOLVED BY BINDING
ARBITRATION. BY AGREEING TO
ARBITRATION, YOU ARE HEREBY WAIVING
THE RIGHT TO GO TO COURT, INCLUDING THE
RIGHT TO A JURY. IN ARBITRATION, A DISPUTE
IS RESOLVED BY AN ARBITRATOR, OR A PANEL
OF ARBITRATORS, INSTEAD OF A JUDGE OR
JURY. THE PARTIES UNDERSTAND THAT THEY
WOULD HAVE HAD A RIGHT OR OPPORTUNITY
TO LITIGATE DISPUTES THROUGH A COURT
AND TO HAVE A JUDGE OR JURY DECIDE THEIR
CASE, BUT THEY CHOOSE (BY THEIR
ACCEPTANCE OF THIS AGREEMENT, IN
ACCESSING OR USING THE SERVICE OR THE
SITE) TO HAVE ANY DISPUTES RESOLVED
THROUGH ARBITRATION.
A-4283-19
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Under the agreement, the parties must, prior to arbitration, engage in
"Informal Claim Resolution" by sending a mailed notice of a dispute to
defendants. "If [defendants] cannot resolve a [c]laim informally, including any
[c]laim between us . . . then these [c]laims shall be resolved, upon election by
either party, exclusively and finally by binding arbitration." The agreement also
stated that all claims are subject to arbitration and "[i]f either party elects to
resolve a claim by arbitration, that [c]laim shall be arbitrated on an individual
basis."
Defendants also mailed plaintiff a welcome kit with the agreement when
he opened the 1453 account for his Jeep Grand Cherokee in 2009 and the account
for his Toyota Highlander purchased in 2017. Plaintiff did not recall ever
receiving a welcome kit containing an agreement for either account. He also
certified he had "never read and was never aware of a set of standardized terms
and conditions that [defendants] cal[l] [an agreement.]" As stated, the identical
agreement was also available online on the SiriusXM website.
Plaintiff did not cancel his radio service subscription during the 2018 term
of agreement, and he continued to use the service. On December 14, 2018,
defendants mailed an automatic subscription renewal notice to plaintiff for his
1453 account. The notice advised that plaintiff's subscription service would
A-4283-19
8
renew monthly beginning on February 8, 2019 and provided the monthly charge.
Additionally, plaintiff was informed if he wanted to "review or make changes to
[his] account, [he] can visit sirusxm.com/myaccount anytime." Plaintiff was
also instructed to "see our [agreement] . . . for complete terms, our refund policy,
and how to cancel." And, the renewal notice provided that if plaintiff did "not
wish to be charged for [his] subscriptions, [he] must cancel prior to renewal."
Plaintiff did not cancel the subscription and continued to pay the monthly charge
after the renewal date.
II.
In June 2019, plaintiff filed a complaint relating to his 1453 account
subscription, alleging that defendants violated the New Jersey Consumer Fraud
Act, N.J.S.A. 56:8-1 to -20, the General Advertising Regulations, N.J.A.C.
13:45A-9.1 to -9.8, and the Truth-in-Consumer Contract, Warranty and Notice
Act, N.J.S.A. 56:12-14 to -18. Defendants moved for dismissal of the complaint
and to compel arbitration under the agreement.
In a comprehensive oral opinion placed on the record over two dates in
June 2020, the trial judge noted the fifteen-year relationship plaintiff had with
the use of defendants' services. He also stated:
Plaintiff's arguments that he did not notice, did not
understand, did not read, does not recall the multiple
A-4283-19
9
notices [defendants] sent him that his subscription was
governed by [the agreement] all fail because the law
makes [it] clear that a customer cannot bury his head in
the sand to avoid a valid arbitration case.
The court further noted: "Plaintiff received multiple copies of
defendants['] [agreement], including the one he received just three months
before reactivating his subscription in December 2017, and consistently used the
service under the [agreement] without objecting to any of its terms." The judge
pointed out that plaintiff did not dispute receiving the hard copies of the
agreement in the mail at any time but instead said he could not recall receiving
the mailed notices.
The judge found mutual implied assent existed to support the enforcement
of the arbitration clause, "including usage—payment, usage of the service, [and]
an extended relationship history for an extended period of time . . . ." The court
found the arbitration clause was "conspicuous and very clear" and encompassed
plaintiff's claims. Therefore, he granted defendants' motion to compel arbitration
and dismissed the complaint.
III.
On appeal, plaintiff contends the trial court erred in finding he impliedly
assented to the terms of the agreement. He also asserts the agreement is facially
A-4283-19
10
deficient under the Plain Language Act (PLA), N.J.S.A. 56:12-1 to -13. We are
not persuaded by either contention.
We review de novo a trial court's order compelling or denying arbitration.
Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020); Goffe v. Foulke Mgmt. Corp., 238
N.J. 191, 207 (2019). Therefore, we "need not defer to the interpretative
analysis of the trial . . . courts unless we find it persuasive." Skuse, 244 N.J. at
46 (citing Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316
(2019)). "In reviewing such orders, we are mindful of the strong preference to
enforce arbitration agreements, both at the state and federal level." Hirsch v.
Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013).
A.
We begin with the mutual assent issue. All contracts, including arbitration
agreements, "must be the product of mutual assent, as determined under
customary principles of contract law." Atalese v. U.S. Legal Servs. Grp., L.P.,
219 N.J. 430, 442 (2014) (citation omitted). Mutual assent is found where the
parties manifest an intention to be bound by the contract's essential terms.
Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435-36 (1992). Arbitration
agreements are subject to the same general principles of contract law and are not
subject to "more burdensome treatment than other waiver-of-right clauses under
A-4283-19
11
state law." Atalese, 219 N.J. at 444. Therefore, an arbitration provision, as with
any other waiver-of-rights clause, "must be clearly and unmistakably
established." Ibid. (citing Garfinkel v. Morristown Obstetrics & Gynecology
Assocs., P.A., 168 N.J. 124, 132 (2001)).
Through his interactions with defendants over fifteen years, plaintiff
manifested an intention to be bound by the agreement's terms, including the
submission of any dispute to arbitration. He agreed to and used several trial and
full-price service subscriptions and cancelled several accounts. Upon the
acceptance of each trial and paid subscription use, defendants provided plaintiff
with a hard copy welcome kit containing the agreement governing the parties'
relationship.
In December 2017, when plaintiff reactivated his radio service, he agreed
to a year-long subscription service and provided defendants with his credit card
information for payment. When reactivating plaintiff's account, defendants'
service representative verbally informed plaintiff that the agreement could be
found on defendants' website or plaintiff could request a copy of the agreement
by phone. Plaintiff was also informed if he did not want to be bound by the
agreement, he could cancel at any time. Plaintiff was familiar with the
cancellation process as he had previously terminated several accounts.
A-4283-19
12
Defendants also sent plaintiff the agreement in a welcome kit on December 28,
2017. When the contract expired, plaintiff renewed it and continued paying the
monthly bill.
Plaintiff does not dispute he received the agreement. He had sufficient
notice of the arbitration provision contained in the agreement. Defendants had
mailed two prior welcome kits containing the agreement and arbitration
provision in connection with plaintiff's prior use of their services. Plaintiff's
actions of requesting defendants' services, using those services, and paying for
them after receiving the agreement demonstrates his assent to the contractual
relationship established under the agreement. As our Court stated in Weichert,
a person may manifest "assent to the terms of an offer through words, creating
an express contract, or by conduct, creating a contract implied-in-fact." 128 N.J.
at 436 (emphasis added). The totality of plaintiff's actions over the fifteen-year
relationship with defendants establishes implied assent.
B.
Plaintiff also asserts the arbitration provision is not enforceable because
it is deficient under the PLA. He contends the agreement's font is less than 10-
point type and does not sufficiently explain he is waiving his rights under the
arbitration provision. We disagree.
A-4283-19
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The PLA does not mandate any specific language, font size, or format, but
rather lists factors for a court to consider when determining whether a consumer
contract is compliant with the Act. The agreement here does not offend any of
the listed factors. The PLA also provides guidelines that a court may consider
in reviewing a consumer contract—one guideline is that "[c]onditions and
exceptions to the main promise of the agreement . . . shall be in at least 10 point
type." N.J.S.A. 56:12-10(b)(3).
The agreement's arbitration provision is labeled, bolded, and contains the
heading "RESOLVING DISPUTES." It is located in the second column on the
front page of the agreement. And, although defendants concede the font of the
agreement contained in the welcome kit is approximately 6.75-point type, the
PLA does not require an agreement to be at least 10-point type. It is a guideline
for courts to consider. Moreover, the agreement was also available to review
online, as defendants' service representative advised plaintiff. That agreement
may be viewed in any size font convenient for a consumer. The agreement
contained in the welcome kit and on defendants' website did not violate the PLA.
The arbitration provision informed plaintiff he was waiving his right to go
to court and to have a jury resolve his dispute. In clear, simple language, the
clause stated that any dispute would be resolved by binding arbitration. An
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arbitration agreement does not need to include any specific set of words but
"must explain that the plaintiff is giving up [their] right to bring [their] claims
in court or have a jury resolve the dispute." Atalese, 219 N.J. at 447.
Affirmed.
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