Wayfair Can Compel Arbitration in Lawsuit Over Alleged Bedbug Infestation, Brooklyn Federal Judge Rules
The home decor company Wayfair can compel arbitration after it was sued by a customer who says she found bedbugs in her Wayfair headboard, U.S. District Senior Judge Jack Weinstein of the Eastern District of New York ordered as he stayed the case Tuesday.
The customer, Lekisha Nicholas, bought an upholstered headboard from Wayfair’s website in 2016, her lawyer, Joshua Arisohn of Bursor & Fisher, wrote in the complaint. She was bitten on her hands and legs until an exterminator “confirmed the source of the bed bugs was the headboard,” according to the complaint.
In a proposed class action suit filed in April, Nicholas’ lawyers wrote that she was joined by other Wayfair customers who bought furniture containing bedbugs. They sued Wayfair for breach of contract, negligence and violation of New York state laws prohibiting deceptive business practices and false advertising, among other offenses. Wayfair could owe more than $5 million to the class members, lawyers for the plaintiffs wrote in their complaint.
In response, a Wayfair assistant manager declared that customer complaints about bedbugs are “rare.” The company also argued that Wayfair products and facilities are “unlikely” to be the cause of any bedbug issue. Nicholas’ purchase was fully refunded after she complained, the assistant manager wrote.
Wayfair’s terms and conditions were available on its website, and they contained a “detailed, extensive arbitration agreement in clear typeface,” Weinstein wrote in his order. A Wayfair engineering director filed a declaration explaining that Nicholas did click on the terms and conditions link on the checkout page two minutes before she submitted her order.
That technical evidence along with Nicholas’ “sophistication” make her argument that she doesn’t remember agreeing to the terms and conditions incredible, Weinstein wrote, adding that failing to read a contract is not a defense.
Lawyers for Wayfair also noted that one of Nicholas’ lawyers, Kyle Shamberg of Carlson Lynch, filed a similar proposed class action suit against the company in the Northern District of Illinois in December 2018. Shamberg worked for Lite DePalma Greenberg at the time.
In that case, U.S. District Judge Matthew Kennelly granted Wayfair’s motion to compel arbitration and stayed the case in June. The plaintiff, who also claimed he bought a Wayfair upholstered headboard with bedbugs, appealed Kennelly’s order. He later asked the U.S. Court of Appeals for the Seventh Circuit to dismiss the case without prejudice so that he could pursue appellate review after arbitration was over, and the court granted his motion.
A spokesperson for Wayfair declined to comment, as did one of its attorneys, Katie Jakola of Kirkland & Ellis.
Lawyers representing Nicholas did not respond to multiple requests for comment.
The customer, Lekisha Nicholas, bought an upholstered headboard from Wayfair’s website in 2016, her lawyer, Joshua Arisohn of Bursor & Fisher, wrote in the complaint. She was bitten on her hands and legs until an exterminator “confirmed the source of the bed bugs was the headboard,” according to the complaint.
In a proposed class action suit filed in April, Nicholas’ lawyers wrote that she was joined by other Wayfair customers who bought furniture containing bedbugs. They sued Wayfair for breach of contract, negligence and violation of New York state laws prohibiting deceptive business practices and false advertising, among other offenses. Wayfair could owe more than $5 million to the class members, lawyers for the plaintiffs wrote in their complaint.
In response, a Wayfair assistant manager declared that customer complaints about bedbugs are “rare.” The company also argued that Wayfair products and facilities are “unlikely” to be the cause of any bedbug issue. Nicholas’ purchase was fully refunded after she complained, the assistant manager wrote.
Wayfair’s terms and conditions were available on its website, and they contained a “detailed, extensive arbitration agreement in clear typeface,” Weinstein wrote in his order. A Wayfair engineering director filed a declaration explaining that Nicholas did click on the terms and conditions link on the checkout page two minutes before she submitted her order.
That technical evidence along with Nicholas’ “sophistication” make her argument that she doesn’t remember agreeing to the terms and conditions incredible, Weinstein wrote, adding that failing to read a contract is not a defense.
Lawyers for Wayfair also noted that one of Nicholas’ lawyers, Kyle Shamberg of Carlson Lynch, filed a similar proposed class action suit against the company in the Northern District of Illinois in December 2018. Shamberg worked for Lite DePalma Greenberg at the time.
In that case, U.S. District Judge Matthew Kennelly granted Wayfair’s motion to compel arbitration and stayed the case in June. The plaintiff, who also claimed he bought a Wayfair upholstered headboard with bedbugs, appealed Kennelly’s order. He later asked the U.S. Court of Appeals for the Seventh Circuit to dismiss the case without prejudice so that he could pursue appellate review after arbitration was over, and the court granted his motion.
A spokesperson for Wayfair declined to comment, as did one of its attorneys, Katie Jakola of Kirkland & Ellis.
Lawyers representing Nicholas did not respond to multiple requests for comment.
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