Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mallh v. Showtime Networks Inc.

United States District Court, S.D. New York

November 7, 2017

VICTOR MALLH, individually and on behalf of all others similarly situated, Plaintiff,
v.
SHOWTIME NETWORKS INC., Defendant.

          For Victor Mallh Mark C. Gardy Orin Kurtz Gardy & Notis, LLP

          For Showtime Networks Inc. Yehudah L. Buchweitz Eric S. Hochstadt Jessie B. Mishkin Weil, Gotshal & Manges LLP

          OPINION & ORDER

          DENISE COTE UNITED STATES DISTRICT JUDGE

         This case involves a contract dispute between plaintiff Victor Mallh (“Mallh”) and defendant Showtime Networks Inc. (“Showtime”) arising out of Showtime's streaming of an August 26, 2017 boxing match between Floyd Mayweather, Jr. and Conor McGregor (the “Event”). Mallh alleges in this putative class action that he purchased a live stream of the Event from Showtime but was unable to view substantial portions of it due to technical failures. Showtime has moved to compel arbitration, or in the alternative, to dismiss the complaint in part and/or to strike the class allegations. For the following reasons, Showtime's motion to compel arbitration is granted.

         Background

         The following facts are taken from the complaint and the evidence described below that was submitted in connection with Showtime's motion to compel arbitration. This Opinion summarizes only those facts relevant to the instant motion.

         Showtime is an entertainment company that owns and operates a commercial-free premium television program service. Showtime also offers events to consumers live on a pay-per-view basis.

         On August 26, 2017, Mallh paid $99.95 to view the Event as a live stream via www.showtimeppv.com (the “Website”). To purchase the live stream, Mallh -- like all users of Showtime's website streaming service -- had to agree to Showtime's terms of use (“TOU”).

         Specifically, every person who purchased the live stream through the Website had to take certain steps. First, users needed to access a webpage describing the Event. The page had a black background, included large photos of the boxers and promotional material, and described a schedule of events leading up to the Event in small white and blue text. To purchase the live stream, users were required to click on a bright red box towards the top of the page containing the following language in white text: “BUY LIVE PPV EVENT - $99.95.” (Emphasis in original.) At that point, users were transferred to a purchase page.

         The purchase page was uncluttered and dedicated to the steps required to transact the purchase. It did not contain any photos or links to promotional material. The purchase page had a black background and, towards the top, users saw the words “PURCHASE PAY-PER-VIEW” in large white text. (Emphasis in original.) Below that text were the date and time of the Event in smaller white text. Below the description of the Event was small white text that read: “Purchase is solely for viewing at showtimeppv.com on supported browsers.” (Emphasis in original.) Below this text were white boxes that purchasers were required to fill with their email address, credit card, and billing address information. A smaller white box appeared just below these white boxes. The following language appeared in small grey text next to that white box: “I have read and agree to the Terms of Use, Privacy Policy, and Video Services Policy. I agree to receive updates, alerts and promotions from Showtime.” (Emphasis in original.) Clicking on the hyperlinked words “Terms of Use” took users to a page containing the complete TOU. Two short footnotes appeared below the small white box.[1] Below the two footnotes was a large red box containing the words “CONFIRM PURCHASE” in white text. (Emphasis in original.)

         To complete the purchase, users were required to check both the small white box indicating that they had read and agreed to the TOU and the larger red box. Users who clicked on both boxes then saw an order confirmation page with a black background. Towards the top were the words “ORDER CONFIRMATION” in large white text. (Emphasis in original.) The page also displayed an order number and repeated the date and time of the Event in smaller white text.[2]

         The TOU contained the following arbitration clause and class action waiver:

18. Disputes; Arbitration
If you have any dispute with or claim against us or any of our affiliates (a “Claim”) arising out of or relating to the Services or these Terms, and the claim is not resolved by calling our customer service department at (877)4-SHOWTIME ((877)474-6984), you and we each agree to resolve such disputes through an individual binding arbitration or an individual action in small claims court. Class arbitrations and class actions are not permitted, and your Claim may not be consolidated with any other person's claim. You and we agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.