MEMORANDUM OPINION AND ORDER The plaintiff, Peiran Zheng, brings this purported class action against the defendant, Live Auctioneers LLC (“LiveAuctioneers”), for negligence and violation of Section 349 of New York’s General Business Law. The claims arise out of a data breach perpetrated by a third party that allegedly resulted in the plaintiff’s private personal information being offered for sale online. The defendant moves to compel arbitration and stay the litigation based on an arbitration provision in a clickwrap contract. The plaintiff asserts that the contract was not properly formed and that the arbitration provision is not enforceable. The plaintiff moves for discovery and to strike the defendant’s supplemental declaration, submitted with its reply brief, as improper. For the reasons explained below, the defendant’s motion to compel arbitration and stay the litigation is granted and the plaintiff’s motion to strike the defendant’s supplemental declaration and for discovery is denied. I. The following facts are undisputed unless otherwise indicated. LiveAuctioneers is a limited liability company organized under the laws of New York and with its principal place of business in New York. Compl. 11. It operates a website that functions as a worldwide marketplace for auctions. Declaration of Robert Cummings dated January 29, 2021 (“Cummings Decl.”) 3. The plaintiff is a citizen of Singapore who used the defendant’s website. Compl. 10. Jurisdiction is based on 28 U.S.C. §1332(d) which was added by the Class Action Fairness Act of 2005. The plaintiff created an account on the defendant’s website on April 6, 2017. Cummings Decl. 4. During the entire period that the plaintiff had an account on the defendant’s website, the defendant’s website has had its Terms & Conditions hyperlinked at the bottom of every page on the website. Id. 5. On October 28, 2019, the plaintiff was prompted by a banner to agree to an updated Terms & Conditions, Privacy Policy, and Cookie Policy upon logging in to the plaintiff’s account on the website. Id. 6. The banner at the top of the webpage read “By using LiveAuctioneers, you agree to our Terms & Conditions, Privacy Policy, and Cookie Policy” with a large orange button next to it that said “AGREE.” Declaration of Robert Cummings dated March 12, 2021 (“Cummings Supp. Decl.”) Ex. F.1 The Terms & Conditions, Privacy Policy, and Cookie Policy were hyperlinked, as indicated by capitalized terms, blue font, and underlining. Cummings Decl. 6. Website users could not have bids considered on the website until they clicked “AGREE.” Cummings Supp. Decl. 5. The plaintiff clicked “AGREE” on October 28, 2019. Cummings Decl. 6. The 2019 Terms & Conditions, which were provided by hyperlink in the banner at the top of the webpage, provided that users “must read and accept all of the terms and conditions in, and referenced by, this Agreement and our Privacy Policy. Cummings Decl. Ex. B. The Terms & Conditions also had a separately labeled section with a bolded heading entitled “Arbitration.” The arbitration provision from the 2019 Terms & Conditions, as available to the plaintiff when the plaintiff clicked “AGREE” is reproduced below: 19. Arbitration. If a dispute, controversy, claim or cause of action arises out of, or in connection with, this Agreement or any breach or alleged breach thereof (the “Dispute”), and if the Dispute cannot be settled through direct discussions, we mutually agree to endeavor first to settle the Dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures then in effect (or under any other form of mediation mutually acceptable to the parties involved) before resorting to arbitration. Any unresolved controversy or claim relating to the Dispute shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect (or under any other form of arbitration mutually acceptable to the parties involved), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If all parties to the Dispute agree, a mediator involved in the parties’ mediation may be asked to serve as the arbitrator. The mediation and arbitration, if any, shall take place in the City, State, and County of New York (unless another location is mutually agreed to by the parties involved). Any award rendered shall be final and conclusive Upon the parties. The costs and expenses of the mediation and arbitration shall be borne equally by the parties, provided, however, that the arbitrator shall award to the prevailing party, if any, the reasonable costs and attorneys’ fees incurred by the prevailing party in connection with the mediation and arbitration. If the arbitrator determines that a party was the prevailing party on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the reasonable costs and attorneys’ fees incurred by the prevailing party in connection with the mediation and arbitration. In the event this mediation/arbitration provision is found to be completely unenforceable or inapplicable for any reason, then any dispute, controversy, claim or cause of action arising out of, or in connection with, this Agreement or any breach or alleged breach thereof, shall be brought in the state or federal courts in the City, State, and County of New York, and you irrevocably consent and submit to the jurisdiction of such courts for the purpose of litigating any such action and waive trial by jury. The prevailing party in such action shall be entitled to recover its reasonable costs and attorneys’ fees incurred in connection therewith, and if it is determined that a party was the prevailing party on some but not all of the claims and counterclaims, such party may be awarded an appropriate percentage of the reasonable costs and attorneys’ fees it incurred in connection therewith. Cummings Decl. Ex. B. The arbitration provision in the defendant’s current Terms & Conditions is materially identical to the arbitration provision in the 2019 Terms & Condition and is hyperlinked on the bottom of every page of the defendant’s website. See Cummings Decl. 9, Ex. C 21. At some point prior to June 19, 2020, hackers gained unauthorized access to the defendant’s computer systems and collected the private personal information of users of the defendant’s website. Compl. 15. The plaintiff alleges that the hackers were able to make multiple unauthorized copies of the plaintiff’s private personal information and offered it for sale online. Id.
