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Gorny v. Wayfair, Inc.

United States District Court, N.D. Illinois, Eastern Division

June 7, 2019

RONALD GORNY, individually and on behalf of all others similarly situated, Plaintiff,
v.
WAYFAIR INC. and WAYFAIR LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, UNITED STATES DISTRICT JUDGE.

         Ronald Gorny filed this putative class action against Wayfair Inc. and Wayfair LLC-collectively "Wayfair"-alleging violations of Illinois contract and tort law arising from his purchase of a headboard from Wayfair.com. Wayfair has moved to compel arbitration under the dispute resolution provision of its website's terms of use. For the reasons stated below, the Court grants Wayfair's motion.

         Background

         The following facts are undisputed unless otherwise noted. In early July 2018, Gorny accessed Wayfair.com and purchased an upholstered headboard for his bed. This was not Gorny's first time on the website. Indeed, according to data provided by Wayfair, he had visited Wayfair.com on at least 200 separate occasions and had made two previous purchases from the website. During those visits, Gorny had apparently viewed more than 13, 000 distinct pages on the site. Each of these pages included a link to Wayfair's terms of use.

         A couple of days after he ordered it, Gorny received the headboard and installed it in his home. He says he soon discovered a large number of small insects, which turned out to be bedbugs, infesting the headboard's upholstery. According to Gorny, he promptly complained to Wayfair about the problem. Wayfair, for its part, says that its records indicate no such complaint was ever made directly to its customer service department. Rather, Gorny apparently indicated the bedbug infestation exclusively in a comment box at the end of a consumer satisfaction survey he completed some fifty-five days after he received the headboard.

         Wayfair contends that this dispute does not belong in court. Initially, Wayfair contends that it is unlikely that the headboard became infested before it got to Gorny. More importantly, though, Wayfair contends that, irrespective of the source of the bedbugs, this dispute falls within the scope of a binding agreement to arbitrate that it contends Gorny assented to when he used Wayfair.com and when he ordered the headboard. Wayfair notes that a hyperlink to the terms of use, which included the relevant provision, appeared on each of the more than 13, 000 pages Gorny visited on Wayfair.com and that Gorny was specifically admonished on several occasions that "by continuing to the site, you agree to the updated Terms of Use and Privacy Policy." Klein Decl., dkt. no. 21-1, ¶ 11. Moreover, Gorny was specifically notified before ordering the headboard-and before making his two previous orders-that, “[b]y placing an order, you are agreeing to our Privacy Policy and Terms of Use." This message appeared immediately below the large purple "Place Your Order" button that Gorny had to press in order to initiate his order, as reproduced below.

         (Image Omitted)

         See Id. ¶ 7.

         Among other provisions, the terms of use include the following paragraph addressing dispute resolution:

YOU AND WAYFAIR AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

Ex. A to Klein Decl., dkt. no. 21-1, at 23. The terms of use go on to specify, in relevant part, that:

Any dispute between you and Wayfair, its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this section, 'Wayfair') arising from or relating to these Terms of Use and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms of Use, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, "Covered Disputes") will be settled by binding arbitration. Prior to initiating any arbitration, the initiating party will give the other party at least 60-days' advanced written notice of its intent to file for arbitration.

Id. The agreement then specifies how the parties should notify one another of a dispute and sets out the parameters for any eventual arbitration. See id.

         After Gorny fired off his scathing consumer survey, Wayfair responded with an apology and a coupon. A couple months later Gorny filed this suit on behalf of himself and others similarly situated. He contends that he is one of many customers who have received products from Wayfair that were infested with bedbugs; he also contends that Wayfair has ignored the problem. In his nine-count complaint, Gorny alleges breach of contract and warranty (counts 1, 6, and 7), negligence (count 2), and consumer fraud and deceptive trade practices under Illinois and several other states' laws (counts 3, 4, 5, and 8). ...


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