Opinion

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 SAN JOSE DIVISION

7

8 HEATHER BIDDLE, et al., Case No. 5:22-cv-07317-EJD

9 Plaintiffs, ORDER GRANTING MOTION TO

COMPEL ARBITRATION,

10 v. DISMISSING CLASS CLAIMS

11 THE WALT DISNEY COMPANY,

Re: ECF No. 210

Defendant.

12

13

14 Plaintiffs Unger and Prescott (collectively “Plaintiffs”) filed this lawsuit against The Walt

15 Disney Company (“Defendant” or “TWDC”) alleging that TWDC’s carriage agreements inflated

16 the price of their Fubo live-television streaming service subscriptions and restricted the channels

17 available to them through their subscriptions. Am. Class Action Compl. (“Am. Compl.”) ¶¶ 115–

18 17, ECF No. 60, Case No. 5:25-cv-01163-EJD. Before the Court is TWDC’s motion to compel

19 arbitration of Plaintiffs’ individual claims, dismiss Plaintiffs’ class claims, and stay Plaintiffs’

20 individual claims pending arbitration. Def.’s Mot. to Dismiss, Compel Arb. (“Mot.”), ECF No

21 210.

22 For the reasons stated below, the Court grants TWDC’s motion to compel arbitration as to

23 Plaintiff Unger and Prescott’s individual claims, grants TWDC’s motion to dismiss Plaintiffs’

24 putative class claims, and stays the action pending arbitration of Plaintiffs’ individual claims.

25 I. BACKGROUND

26 In 2015, Fubo launched as a streaming live pay television provider that sought to offer its

27 subscribers sports channels at a lower cost than some competitor providers. Am. Compl. ¶ 10. To

1 improve its business model, Fubo added ESPN—owned by TWDC—to its package of channels in

2 August 2020 and saw a resulting surge in its subscriber base. Id. TWDC, however, required Fubo

3 to package ESPN with other entertainment channels, like Freeform. See id. ¶¶ 74–78, 89.

4 Plaintiffs allege this packaging requirement drove consumer prices to nearly double what they

5 would have been if Fubo was permitted to offer ESPN on its own. Id. ¶ 12. Plaintiffs further

6 allege that barring TWDC’s “anticompetitive conduct,” Fubo would have offered the “sports-

7 centric package of channels that its consumers” wanted. Id. ¶ 5.

8 Users who sign up for Fubo subscriptions must assent to the Terms of Service (“Terms”)

9 before using the service. Mot. 3. According to Defendant, this process occurs through a “sign-up

10 journey,” during which users “must click a button indicating that they assent to the Terms.” Id. at

11 4, 7 (describing the three-step sign-up journey). Plaintiff Unger signed up for Fubo’s service in

12 March 2024. Pls’ Opp’n to Mot. (“Opp’n”) 5, ECF No. 217; Mot. 5–6. At the time of Plaintiff

13 Unger’s sign up, Fubo’s November 1, 2023, Terms (“2023 Terms”) were operative. Mot. 1, 5–6.

14 Plaintiff Prescott signed up for Fubo’s service in September 2024, cancelled the service, and then

15 signed up again in October 2024. Opp’n 5. In September and October 2024, Fubo’s June 3, 2024,

16 Terms (“Terms”) were operative. Mot. 1–2, 5–8. The 2024 Terms merged all previous versions

17 of the terms of service, such that both Plaintiffs Unger and Prescott were bound by them after they

18 became effective (or, in Plaintiff Prescott’s case, when he signed up in September and October

19 2024). Mot. 2. Fubo informed existing subscribers of the updated Terms by email, stating that

20 Fubo’s “Terms of Service have been updated to reflect how we resolve disputes with you. You do

21 not need to take any action to continue using Fubo, but we encourage you to review our updated

22 Terms of Service. By continuing to use our service after today, you confirm that you agree to

23 these updates.” Opp’n 5 (citing Gerson Declaration in Support of Mot. (“Gerson Declaration”),

24 Ex. E, ECF No. 210-6).

25 Among other things, the Terms include a mandatory arbitration provision, a future

26 affiliates clause, and a waiver of class claims. Gerson Declaration, Ex. D, ECF No. 210-5

27 (“Terms”). Section 22 of the Terms governs disputes and includes a future affiliates provision,

1 providing that Fubo’s “past, present, and future affiliates and agents, as well as any of our

2 successors and assigns, can invoke Fubo’s rights under this agreement in the event they become

3 involved in a dispute.” Id. at 17 (the “Future Affiliates Provision”). Further, within this section,

4 the Terms include a subsection titled, “Binding Arbitration.” Terms § 22.2. This subsection,

5 collectively referred to as the “Arbitration Agreement” states:

[Y]ou and Fubo agree that all claims, disputes, actions,

6 disagreements, or other controversies concerning or arising in any

way out of your use (or lack of use) of, access (or lack of access to)

7 this Agreement, the Privacy Policy, Content, the Platform, the

Services, an Account, your provision and any use of your personal

8 information and any other information or data, a Subscription, a Site,

an Application, Platform Content, Your Content, Third Party Content

9 and Services, User Information, any Technology, this website, these

Terms of Service, any other product or service, and any advertising,

10 marketing, promotion, or other communications, whether based in

contract, warranty, tort, statute, regulation, ordinance, or another legal

11 or equitable basis, shall be resolved exclusively through binding

arbitration in accordance with this Section 22.2 (collectively, the

12 “Arbitration Agreement”). “Dispute” will be given the broadest

possible meaning allowable under law.

13

This agreement to arbitrate covers and includes threshold questions

14 of arbitrability. The arbitrator, and not any federal, state, or local

court or agency, shall have exclusive authority to resolve any and all

15 disputes arising out of or relating to the formation, existence, scope,

validity, interpretation, applicability, or of this Disputes section

16 (Section 22) or of these Terms of Service— including but not limited

to any claim that all or any part of these terms are void or voidable,

17 whether a claim is subject to arbitration, and any dispute regarding

the payment, nonpayment, or timing of any administrative or

18 arbitrator fees.

19 Id. Subsection 22.2(c), “Class Action, Class Arbitration and Collective Relief Waiver”

20 states that “You and Fubo acknowledge and agree that, to the maximum extent allowed by

21 applicable law . . . any proceedings to resolve any dispute, claim or controversy, will be brought

22 and conducted only in the respective party’s individual capacity and not as a part of any class (or

23 purported class)” (the “Class Waiver Provision”). Id. § 22.2(c). Subscribers are provided with

24 the right to opt out and not be bound by the Arbitration Agreement and Class Waiver Provision by

25 sending written notice to a specified email address; Fubo continued to honor any valid opt-outs

26 responsive to previous versions of the Terms of Service. Id. § 22.4. Plaintiffs did not invoke their

27 rights to opt out of the Arbitration Agreement or Class Waiver Provision. Mot. 5.

1 In January 2025, after Plaintiffs assented to the Terms and the opt out window had passed,

2 TWDC announced that it had entered into an agreement to acquire a controlling stake in Fubo and

3 to combine Fubo with TWDC’s Hulu + Live TV business. Id. at 7. The acquisition closed on

4 October 29, 2025. Id. Accordingly, TWDC holds a controlling 70% stake in the newly created

5 Fubo entity, making TWDC an affiliate of Fubo. Id. at 7–8.

6 TWDC filed the present Motion to Dismiss, Compel Arbitration, and Stay arguing that (1)

7 the Court should compel arbitration of Plaintiff Unger and Prescott’s individual claims because

8 each Plaintiff agreed to the Terms’ Arbitration Agreement; (2) consistent with the Arbitration

9 Agreement, Unger and Prescott agreed to delegate arbitrability questions to the arbitrator; (3) even

10 as a non-signatory, TWDC can enforce the Arbitration Agreement directly and through principles

11 of estoppel; (4) the Court should dismiss Plaintiffs’ putative class claims against TWDC pursuant

12 to the Class Waiver Provision; and (5) the Court should stay Unger and Prescott’s individual

13 claims pending arbitration. See generally Mot. Plaintiffs oppose the Motion, arguing primarily

14 that TWDC may not compel arbitration because it is not a signatory to the Terms. Opp’n 1. They

15 further argue that compelling arbitration would be manifestly unconscionable because, “[i]f

16 TWDC’s theory were accepted, any defendant in a class action could sidestep judicial scrutiny

17 simply by acquiring a company whose customers (who are themselves class-action plaintiffs) had

18 agreed to an arbitration clause, effectively turning corporate restructuring into a tool for erasing

19 plaintiffs’ rights ex post facto.” Id. at 2.

20 II. LEGAL STANDARD

21 The Federal Arbitration Act (“FAA”) requires district courts to “direct the parties to

22 proceed to arbitration on issues as to which an arbitration agreement has been signed,” reflecting a

23 “liberal federal policy favoring arbitration agreements.” Kilgore v. KeyBank, Nat. Ass’n, 718 F.3d

24 1052, 1058 (9th Cir. 2013) (citing Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985));

25 Guerrero v. GoPuff, 2025 WL 3539105, at *6 (S.D.N.Y. Dec. 10, 2025). In particular, Section 2

26 of the FAA specifies that, “[a] written provision in any . . . contract evidencing a transaction

27 involving commerce to settle by arbitration a controversy thereafter arising out of such contract or

1 transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law

2 or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 4 provides that, “[a] party

3 aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written

4 agreement for arbitration may petition any United States district court . . . for an order directing

5 that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4.

6 The FAA reflects the “fundamental principle that arbitration is a matter of contract.”

7 Olson v. World Fin. Grp. Ins. Agency, LLC, No. 5:24-CV-00477-EJD, 2025 WL 2637562, at *2

8 (N.D. Cal. Sept. 9, 2025) (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011));

9 see also Karasyk v. Marc Commodities Corp., 770 F. Supp. 824, 827 (S.D.N.Y. 1991). When

10 presented with a motion to compel arbitration, courts must first determine whether a valid

11 agreement to arbitrate exists, and then, if so, determine whether the dispute at issue is covered by

12 the agreement. Kilgore, 718 F.3d at 1058 (quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc.,

13 207 F.3d 1126, 1130 (9th Cir. 2000)). “The [arbitration] agreement may also delegate gateway

14 issues to an arbitrator, in which case the court’s role is limited to determining whether there is

15 clear and unmistakable evidence that the parties agreed to arbitrate arbitrability.” Cortez v.

16 Cambridge Real Est. Servs., Inc., No. 22-CV-07332-HSG, 2023 WL 4534946, at *2 (N.D. Cal.

17 June 16, 2023). The party seeking to compel arbitration bears the initial burden of demonstrating

18 that an agreement to arbitrate was made, a matter of state contract law. Zachman v. Hudson Valley

19 Fed. Credit Union, 49 F.4th 95, 101–02 (2d Cir. 2022); Cortez, 2023 WL 4534946, at *2. If the

20 moving party meets their initial burden, the burden shifts to the party seeking to avoid arbitration

21 to show the agreement to be inapplicable or invalid. Norcia v. Samsung Telecomms. Am., LLC,

22 845 F.3d 1279, 1283 (9th Cir. 2017); Harrington v. Atl. Sounding Co., 602 F.3d 113, 124 (2d Cir.

23 2010). Generally applicable contract defenses as defined by state law may render an arbitration

24 agreement unenforceable. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 343 (2011).

25 Where the “making of an arbitration agreement” is “in issue” district courts apply the

26 summary judgment standard of Rule 56 of the Federal Rules of Civil Procedure to determine the

27 issue. Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021). “[W]here the

1 undisputed facts in the record require the matter of arbitrability to be decided against one side or

2 the other as a matter of law, [courts] may rule on the basis of that legal issue and ‘avoid the need

3 for further court proceedings.’” Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017)

4 (quoting Wachovia Bank, Nat. Ass’n v. VCG Special Opportunities Master Fund, 661 F.3d 164,

5 172 (2d Cir. 2011)); see also Alarcon v. Vital Recovery Servs., Inc., 706 F. App’x 394 (9th Cir.

6 2017).

7 III. DISCUSSION

8 Arbitration is a “creature of contract,” such that the threshold question facing any court

9 considering a motion to compel arbitration is whether the parties have formed a contract in which

10 they have agreed to arbitrate. See Awad v. Extend Nursing Personnel, 2025 WL 753865, at *4

11 (S.D.N.Y. 2025); see also Chiron Corp. v. Ortho Diagnostic Sys., Inc., 1998 WL 865284, at *4

12 n.2 (N.D. Cal. Dec. 7, 1998), aff’d, 207 F.3d 1126 (9th Cir. 2000). State law governs questions of

13 contract formation. Montes v. Thorntons LLC, 831 F. Supp. 3d 860, 866 (N.D. Cal. 2026). The

14 Parties disagree as to whether New York or California law applies. TWDC contends that New

15 York law applies because of a choice of law provision within the Terms. See Terms § 23

16 (“Governing Law and Venue”; stating that “the interpretation of rights and obligations of the

17 parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or

18 other proceedings hereunder, will be governed in all respects exclusively by” New York law to the

19 extent not inconsistent with federal law). Plaintiffs suggest that this provision is irrelevant if the

20 Court finds that Fubo’s Terms do not govern the dispute or that enforcing the Arbitration

21 Agreement would contravene the forum state’s public policy. Opp’n 6–7 n.3. Plaintiffs further

22 argue that because Plaintiff Prescott was a California resident when litigation was initiated,

23 California law should apply. Id.

24 Relying on contractual provisions before the Court finds that a contract has been formed,

25 and is enforceable, is inappropriate. Schnabel v. Trilegiant Corp., 697 F.3d 110, 119 (2d Cir.

26 2012). Therefore, either the law of California—the forum state and state in which Plaintiff

27 Prescott was a citizen at the time litigation was initiated—or New York may apply to this dispute.

1 Id.; Pincaro v. Glassdoor, Inc., 2017 WL 4046317, at *5 (S.D.N.Y. Sept. 12, 2017). California

2 and New York law “apply substantially similar rules for determining whether the parties have

3 mutually assented to a contract term.” Meyer, 868 F.3d at 74; see also Blackburn v. ClassPass

4 USA LLC, No. 25-cv-06109-WHO, 2026 WL 962734, at *4 n.2 (N.D. Cal. Apr. 9, 2026) (“New

5 York and California law are substantively the same insofar as contract validity is concerned.”). As

6 Plaintiffs note, the choice-of-law question is thus immaterial to the determination of whether a

7 valid agreement to arbitrate was formed. See Pincaro, 2017 WL 4046317, at *5.

8 A. Agreement to Arbitrate

9 Courts examining motions to compel arbitration must first determine whether the parties

10 have entered into a valid agreement to arbitrate. Lopez v. Debevoise & Plimpton, 2026 WL

11 2123273, at *3 (S.D.N.Y. July 23, 2026). “When deciding whether the parties agreed to arbitrate

12 a certain matter, courts generally should apply ordinary state-law principles that govern the

13 formation of contracts.” Wexler v. AT&T Corp., 211 F. Supp. 3d 500, 504 (E.D.N.Y. 2016);

14 Oberstein v. Live Nation Entertainment, Inc., 60 F.4th 505, 510 (9th Cir. 2023). Contract

15 formation requires a “manifestation of mutual assent [that is] sufficiently definite to assure that the

16 parties are truly in agreement with respect to all material terms.” Bristol v. Securitas Sec. Servs.

17 USA, Inc., 597 F. Supp. 3d 574, 578 (S.D.N.Y. 2022) (citation omitted). Where the contract is

18 online, “courts look for evidence that a website user had actual or constructive notice of the terms

19 of using the website.” Resorb Networks, Inc. v. YouNow.com, 51 Misc. 3d 975, 980 (N.Y. Sup.

20 Ct. 2016). Where, as in many online contracts, the assent to terms is “mostly passive . . . courts

21 seek to know ‘whether a reasonably prudent offeree would be on notice of the term at issue’ and

22 whether the terms of the agreement were ‘reasonably communicated’ to the user.” Id. (citing

23 Fteja v. Facebook, Inc. 841 F. Supp. 2d 829, 833, 835 (S.D.N.Y. 2012); Starke v. Gilt Groupe,

24 Inc., 2014 WL 1652225, *2–3, (S.D.N.Y. 2014); Jerez v. JD Closeouts, LLC, 36 Misc. 3d 161,

25 168 (Nassau Dist. Ct. 2012)).

26 TWDC argues that Plaintiffs agreed to the Terms when they created their accounts and

27 proceeded through the “sign-up journey.” Because the Terms include the Arbitration Agreement

1 and Class Waiver Provision, Plaintiffs necessarily agreed to arbitrate by using Fubo’s services.

2 See Mot. 5–7, 9. Although provided with the opportunity to do so, Plaintiffs did not opt out of the

3 Arbitration Agreement or Class Waiver Provision. Id. If Plaintiffs had opted out of the

4 Arbitration Agreement or the Class Action Waiver, they would not have been bound by these

5 provisions of the Terms and could have sought relief in court, rather than an arbitral forum. See

6 Terms § 22.4. To opt out, Plaintiffs were required to send a written notice, signed by them, of

7 their decision to a specified email address. The Terms require that the notice be sent within 30

8 days of the effective date of the updated Terms, or the users’ first use of the Services, whichever

9 occurred later. Id. Additionally, Fubo “continue[d] to honor any valid opt outs . . . [from] a prior

10 version of the Terms.” Id.

11 TWDC continues that the Terms explicitly vest the right to invoke the Arbitration

12 Agreement and Class Waiver Provision in certain non-signatories to the Terms through the Future

13 Affiliates Provision. Mot. 4–5. Plaintiffs contend, on the other hand, that TWDC fails to meet its

14 burden to show that Plaintiffs agreed to arbitrate this dispute with TWDC. Opp’n 1. But Plaintiffs

15 do not appear to dispute that they agreed to the Terms with Fubo. See id. at 5 (“Taking Disney’s

16 assertions at face value, both Fubo Plaintiffs agreed to arbitration terms with Fubo while Fubo and

17 Disney were entirely independent companies and litigating against each other over the same

18 anticompetitive conduct alleged here.”). The question is therefore whether a reasonably prudent

19 offeree would be on notice of the Terms’ Arbitration Agreement, including the Future Affiliates

20 Provision, and whether they were reasonably communicated to Plaintiffs.

21 TWDC explains that to sign up for Fubo’s services, a putative subscriber must assent to the

22 Terms, which are available via hyperlink to a subscriber throughout their sign-up process and

23 publicly on the website. Mot. 3. Users’ assent is indicated by clicking a button confirming that by

24 proceeding, they agree to the terms. Gerson Decl. in Support of Mot. ¶¶ 5, 8, 16.

25 Courts have consistently found that even where terms are reasonably conspicuous, a “user

26 must agree to the terms, not merely see them.” Chabolla v. ClassPass Inc., 129 F.4th 1147, 1158

27 (9th Cir. 2025); Shepherd v. Belkin Int’l, Inc., 683 F. Supp. 3d 282, 285 (E.D.N.Y. 2023) (noting

1 that the Second Circuit remanded in Zachman v. Hudson Valley Fed. Credit Union, 49 F.4th 95,

2 103 (2d Cir. 2022) because the online merchant had not provided evidence that the terms and

3 conditions were conspicuous displayed). To evaluate whether terms are reasonably conspicuous,

4 courts look to the design of the relevant interface, including factors such as whether the terms are

5 “spatially coupled” with the checkout button, whether the “checkout button is ‘temporally

6 coupled’ with the hyperlink to the terms of use” (meaning that the checkout button and

7 hyperlinked terms of use are presented at the same time) and whether the language is clear.

8 Davitashvili v. Grubhub Inc., 131 F.4th 109, 116 (2d Cir. 2025); see also Meyer, 868 F.3d at 75,

9 78–79 (considering the relevant interface on which the putative user was required to click

10 “Register” below which the screen stated that, “[b]y creating an Uber account, you agree to the

11 TERMS OF SERVICE & PRIVACY POLICY,” with hyperlinks to both and finding that it

12 provided reasonable notice); Oberstein, 60 F.4th at 515 (looking to conspicuousness and

13 placement of the “Terms of Use” hyperlink). Turning to the interface at issue here, the Court

14 concludes that Fubo provided conspicuous notice to Plaintiffs that they were agreeing to the

15 Terms. On the first step of a putative subscriber’s sign-up journey, in addition to entering their

16 email and password, there is a notice that states: “By continuing, I agree to the Terms of Service,

17 acknowledge the Privacy Policy, and agree to receive promotional emails regarding fuboTV.”

18 Gerson Decl. Ex. F-2, ECF No. 210-7; Gerson Decl. Ex. B-2, ECF No. 210-3. “Terms of Service”

19 and “Privacy Policy” are hyperlinked and are in a different font color than the rest of the text.

20 This text appears on the same page and above the “Continue” button, such that people seeking to

21 subscribe would see it before clicking “Continue.” Gerson Decl. Ex. F-2; Gerson Decl. Ex. B-2.

22 Additionally, before a putative subscriber can submit their payment information and checkout,

23 there is a notice above the submit button that states “By clicking ‘Submit’, you acknowledge that

24 you have read and agree to Fubo’s Terms of Service.” Again, “Terms of Service” appears in a

25 slightly different color and is hyperlinked. Gerson Decl. Ex. F-6, ECF No. 210-7; Gerson Decl.

26 Ex. B-5, ECF No. 210-3.

27 The second consideration, whether the putative subscriber takes “some action that

1 unambiguously manifests assent—is relatively straightforward.” Oberstein., 60 F.4th at 515.

2 Courts have repeatedly held that the click of a button can be construed as an unambiguous

3 manifestation of assent” where the user is explicitly advised that the act of clicking will constitute

4 assent to the terms. Id; Meyer, 868 F.3d at 79–80 (“A reasonable user would know that by

5 clicking the registration button, he was agreeing to the terms and conditions accessible via the

6 hyperlink, whether he clicked on the hyperlink or not.”). Here, the Court finds that Plaintiffs

7 manifested unambiguous assent by pressing both “Continue” in Step 1 of the sign-up journey, and

8 “Submit” in Plaintiff Unger’s case, or “Start free trial” in Plaintiff Prescott’s case in Step 3 of the

9 sign-up journey.

10 Plaintiff Unger signed up when the 2023 Terms were in effect, so the Court must also

11 consider whether Unger was provided reasonably conspicuous notice of the updated Terms. When

12 the updated Terms became effective in June 2024, Fubo sent its subscribers, including Unger, an

13 email informing them that by continuing to use Fubo, they agreed to the updated Terms. Mot. at

14 5–6; Gerson Decl. Ex. E, ECF No. 210-6; see also Terms § 28 (explaining that the Agreement

15 supersedes previous agreements between the parties). In this email, which bore the subject line

16 “Important Account Update,” Fubo wrote that its “Terms of Service [had] been updated to reflect

17 how we resolve disputes with you. You do not need to take any action to continue using Fubo, but

18 we encourage you to review our updated Terms of Service. By continuing to use our service after

19 today, you confirm that you agree to these updates.” Gerson Decl. Ex. 1. References to the

20 “Terms of Service” are bolded and hyperlinked in the email. Plaintiff Unger remained active until

21 November 29, 2024, and did not seek to opt out of the Arbitration Agreement or Class Waiver, or

22 otherwise delete his account. Mot. at 5. Consistent with other courts, this Court finds that Fubo

23 provided conspicuous notice of the updated Terms and that, by continuing to use Fubo, Unger

24 assented to the Terms. See Pincaro 2017 WL 4046317, at *6; Sacchi v. Verizon Online LLC, 2015

25 WL 765940, at *5 (S.D.N.Y. Feb. 23, 2015); In re Facebook Biometric Info. Priv. Litig., 185 F.

26 Supp. 3d 1155, 1167 (N.D. Cal. 2016). Having found that Plaintiffs and Fubo entered into an

27 Arbitration Agreement when they agreed to the Terms, the Court turns to Plaintiffs’ arguments

1 that provisions within the Terms are unenforceable or invalid.

2 B. TWDC May Compel Arbitration Pursuant to the Future Affiliates Provision

3 Plaintiffs principally argue that because TWDC is a non-signatory to the Terms, it cannot

4 invoke the Arbitration Agreement included therein by relying on the Future Affiliates Provision.

5 Opp’n 8–9. Plaintiffs argue that “future affiliates” do not have rights to enforce this Section

6 because (1) TWDC was not a party to the Terms when Plaintiffs assented to them; (2) rights exist

7 only to the extent that a party has assumed corresponding obligations, and here, TWDC has not;

8 and (3) the parties to the Terms could not have reasonably expected the Arbitration Agreement to

9 extend to TWDC. Opp’n 9–10. In response, TWDC argues that: (1) Plaintiffs do not dispute that

10 they assented to the Terms; (2) there is no legal requirement for a party to a contract to assume

11 reciprocal obligations and that, in any event TWDC did undertake obligations to follow the

12 Arbitration Agreement and abide by other provisions in the Terms; and (3) uncertainty about

13 possibly arbitrating with some non-signatory entity is inherent in any contract that binds future

14 affiliate or successors, and not a reason to hold such a provision unenforceable. Reply 5–6, ECF

15 No. 222. The Court considers each argument in turn.

16 1. Enforceability of Contractual Obligation by Non-Signatory

17 First, Plaintiffs argue that contract formation principles foreclose any argument that when

18 they agreed to the Terms, Plaintiffs were also “agreeing with TWDC, and every other unknown or

19 unrelated future entity.” Opp’n 9. Although framed as a contract formation inquiry, Plaintiffs’

20 argument raises questions of contract enforceability: whether a non-party to a contract can enforce

21 its terms where such a scenario is accounted for within the terms. See id. at 9 (“Thus TWDC is

22 not a party to the agreement and has no direct enforcement rights.”). Plaintiffs suggest that they

23 did not intend to arbitrate with TWDC, such that there was no “mutual intention of the parties,” as

24 is necessary to form a contract to arbitrate with TWDC. See id. at 8 (explaining that contract

25 formation requires mutual intent to be bound that is sufficiently definite to demonstrate the

26 parties’ agreement with respect to all material terms). Based on the four corners of the Terms,

27 Plaintiffs claim that they understood the counterparty to the contract to be “fuboTV Media, Inc.

1 ‘and its parents and affiliates’” not any possible future affiliate, especially where, as here, the

2 Future Affiliates Provision is mentioned solely in the Arbitration Agreement, not in the

3 “Definitions” section defining Fubo. Id. at 9.

4 In support of this position, Plaintiffs rely primarily on two cases, both of which are

5 inapposite. In the first, Ellington v. EMI Music, Inc., the plaintiff argued that as it appeared in a

6 contractual term, the phrase “any other affiliate” was ambiguous. Ellington v. EMI Music, Inc., 24

7 N.Y.3d 239, 245 (2014) (“The second phrase plaintiff claims is ambiguous is within the definition

8 of Second Party. The Agreement defines ‘Second Party’ as consisting of a group of music

9 publishers including ‘MILLS MUSIC, INC., a New York corporation, AMERICAN ACADEMY

10 OF MUSIC, INC., GOTHAM MUSIC SERVICE, INC., and their predecessors in interest, and

11 any other affiliate.’ Plaintiff asserts that the affiliated foreign subpublishers are included in the

12 term ‘any other affiliate.’”). In that action, the New York Court of Appeals considered whether a

13 contractual royalty payment provision was clear and unambiguous in a breach of contract and

14 fraudulent concealment suit between an heir of Duke Ellington and EMI Music. Id. at 242. The

15 underlying contract required the court to interpret the term “any other affiliate” in a United States

16 copyright renewal agreement. Id. at 245. The court found that the phrase “any other affiliate” was

17 not ambiguous within the contract and noted that “absent explicit language demonstrating the

18 parties’ intent to bind future affiliates of the contracting parties, the term ‘affiliate’ includes only

19 those affiliates in existence at the time that the contract was executed.” Id. at 246. Plaintiffs

20 suggest that the Ellington court’s conclusion—that “affiliate” includes only affiliates existing at

21 the time of the contract’s formation—should operate to exclude TWDC from invoking the

22 Arbitration Agreement here, as a future affiliate. See Opp’n 9. This suggestion is unpersuasive

23 where the Arbitration Agreement’s Future Affiliates Provision clearly states that “future affiliates .

24 . . can invoke Fubo’s rights under this agreement in the event they become involved in a dispute.”

25 Terms § 22. There was no additional clause in Ellington that described “future affiliates” and

26 indeed, the court suggested that “language demonstrating the parties’ intent to bind future affiliates

27 of the contracting parties,” may operate to do just that—bind future parties. See Ellington, 24

1 N.Y.3d at 246.

2 The second case, a Ninth Circuit decision, grappled with whether DirecTV could compel

3 arbitration based on a wireless services agreement between the plaintiff and “AT&T mobility,”

4 which was defined to include its “affiliates.” Revitch v. DIRECTV, LLC, 977 F.3d 713, 715 (9th

5 Cir. 2020). After the plaintiff entered into the wireless services agreement, DirecTV was acquired

6 by AT&T. Id. at 715. As in Ellington, in Revitch the court considered the definition of “affiliate,”

7 not future affiliate, and whether “affiliate” included DirecTV when it was acquired by AT&T after

8 the plaintiff signed the wireless services agreement. See id. at 717–18 (“Because the word is not

9 elsewhere defined in the contract, we rely on the ordinary definition . . . An affiliate is normally

10 understood as a ‘company effectively controlled by another or associated with others under

11 common ownership or control”). The court concluded that, combined with the circumstances

12 surrounding DirectTV’s motion to compel arbitration (a claim entirely unrelated to the plaintiff’s

13 mobile phone services agreement), enforcing the arbitration agreement would lead to “absurd

14 results:” “Under this reading, Revitch would be forced to arbitrate any dispute with any corporate

15 entity that happens to be acquired by AT&T, Inc.” Id. at 718. Like the Ellington court, the

16 Revitch court suggested that the result may have been different had the contract referred to “any

17 affiliates, both present and future.” Id.; see also McDonough v. Bidwill, 2025 WL 487171, at *9

18 (D. Ariz. Feb. 13, 2025) (commenting that Revitch was distinguishable from the action before the

19 court because the arbitration provision contained “some of the sort of forward-looking language

20 that was absent in Revitch” where the provision referenced arbitrating any claim that ever arises

21 between the plaintiff and defendant’s agent).

22 In each of these cases, the courts explained that, where the terms of a contract are clear and

23 unambiguous, the intent of the parties is determined by looking within “the four corners of the

24 contract.” Ellington, 24 N.E. 3d at 244. Here, Plaintiffs do not dispute the plain meaning of the

25 Future Affiliates Provision but rather argue that Disney is not a party to the Terms and therefore

26 has no direct enforcement rights. Opp’n 9 (“The June 2024 Terms define Fubo as fuboTV Media,

27 Inc. ‘and its parents and affiliates,’ a category that did not include Disney at the time. Thus,

1 Disney is not a party to the agreement and has no direct enforcement rights.”). The cited case law

2 only confirms that TWDC is not a party to the Terms, which TWDC does not dispute. Ellington

3 and Revitch do not contemplate a situation such as this, where non-parties are explicitly vested

4 with enforcement rights in the contract. Indeed, as discussed below, courts have found clauses

5 such as the Future Affiliates Provision enforceable. See infra § III.B.2. Looking to the ordinary

6 definitions of the words within the Future Affiliates Provision, the Court finds that the Provision is

7 clear and unambiguous, such that the Court will rely on its terms so long as this reliance would not

8 lead to an absurd result. See infra § III.B.3.

9 2. Requirement of Corresponding Obligations

10 Next, Plaintiffs argue that the Future Affiliates Provision cannot be construed as a

11 contractual obligation between Plaintiffs and TWDC because “a legal right . . . exists only against

12 a party who has assumed a corresponding obligation.” Opp’n 9–10 (citing 1 Corbin on Contracts

13 § 1.2). TWDC counters that this argument is a “red-herring.” Reply 5. The cases on which

14 Plaintiffs rely to support this argument do not contemplate the situation at hand—a non-signatory

15 in which Plaintiffs agreed to vest enforcement rights being required to undertake reciprocal

16 obligations. See id. at 5–6. The Court agrees with TWDC and finds Plaintiffs’ argument

17 unpersuasive.

18 The first case on which Plaintiffs rely in support of their argument that TWDC must have

19 undertaken certain obligations to enforce the Arbitration Agreement, Wilson v. Triller, Inc.,

20 analyzes whether the plaintiff was “aware of the Terms . . . [and] whether the Terms constitute[d]

21 an enforceable contract.” 598 F. Supp. 3d 82, 94 (S.D.N.Y. 2022). The court concluded that there

22 was a valid contract between the parties because the terms of service “were sufficiently

23 conspicuous to put the user on inquiry notice.” Id. at 96. But the court’s holding as to the

24 existence of a valid contract did not address the necessity of “reciprocal obligations.” Likewise,

25 the second case to which Plaintiffs direct the Court, Casa del Caffe Vargnano S.P.A. v.

26 ItalFlavors, LLC, underscores that parties to a contract must mutually consent to be bound by their

27 agreement. 816 F.3d 1208, 1211–12 (9th Cir. 2016). Neither of these cases, nor any case that

1 Plaintiffs cite, “require[s] a non-signatory in TWDC’s shoes to show that it undertook reciprocal

2 obligations.” Reply 5–6.

3 Instead, TWDC offers several cases in which courts applying New York law have found

4 that contracts containing arbitration clauses, which extend to “successor[s]” or “affiliates” are

5 enforceable, without undertaking a separate analysis of whether affiliates took on “reciprocal”

6 obligations. See, e.g., Awad, 2025 WL 753865, at *4, 6; Citadel Servicing Corp. v. Castle

7 Placement, LLC, 431 F. Supp.3d 276, 287–88 (S.D.N.Y. 2019). These cases hold that a

8 “signatory to an arbitration agreement may be required to arbitrate a dispute with a non-signatory

9 when . . . the arbitration clause ‘explicitly vests rights to arbitrate,’ in non-signatories.’” Awad,

10 2025 WL 753865, at *6 (citing Choctaw Generation Ltd. P’ship v. American Home Assurance

11 Co., 271 F.3d 403, 404 (2d Cir. 2001)); see also Citadel, 431 F. Supp. 3d at 287–88 (finding that

12 the defendants were explicitly vested with the right to decide whether they were agents of a

13 contractual party, and therefore were entitled to proceed in arbitration despite being non-

14 signatories to the relevant agreement); McPheeters v. McGinn, Smith & Co., 953 F.2d 771, 772

15 (2d Cir. 1992) (“[U]nder general contract principles, we may deem non-signatories to fall within

16 the scope of an arbitration agreement where that is the intent of the parties.”).

17 3. Absurd Results

18 Lastly, Plaintiffs argue that enforcing the Arbitration Agreement, including the Future

19 Affiliates Provision, produces absurd results and that doing so would be contrary to the parties’

20 reasonable expectations. Opp’n 10. Plaintiffs emphasize language in the Arbitration Agreement

21 compelling arbitration for “controversies concerning or arising in any way out of . . . this

22 Agreement. . . [or] any other product or service,” to argue that a former Fubo subscriber could be

23 compelled to arbitrate claims “wholly unrelated to Fubo, such as a slip-and-fall at a Disney

24 resort.” Id. at 11. But in making this argument, Plaintiffs excise the “any other product or

25 service” language from a list of Fubo-related services and a reference to the Terms themselves.

26 Indeed, the Arbitration Agreement governs:

all claims, disputes, actions, disagreements, or other controversies

27 concerning or arising in any way out of your use (or lack of use) of,

access (or lack of access to) this Agreement, the Privacy Policy,

1 Content, the Platform, the Services, an Account, your provision and

any use of your personal information and any other information or

2 data, a Subscription, a Site, an Application, Platform Content, Your

Content, Third Party Content and Services, User Information, any

3 Technology, this website, these Terms of Service, any other product

or service, and any advertising, marketing, promotion, or other

4 communications.

5 Terms § 22.2(a) (emphasis added). Plaintiffs ignore the context of the surrounding terms,

6 which makes clear that the Arbitration Agreement is intended to apply to disputes arising from use

7 of Fubo’s streaming services, such as subscription-related disputes, disputes about how the

8 information or data that customers provide to Fubo may be used, and the like.

9 Plaintiffs again look to Revitch and Wexler to support their argument that courts have

10 rejected “narrower attempts” to stretch arbitration clauses beyond parties’ reasonable expectations

11 of the agreement’s scope. Opp’n 11–12 (contemplating arbitration of any claim brought by a

12 Fubo subscriber, even if unrelated to Fubo and brought years after terminating Fubo services).

13 But the Revitch court reached its decision that the plaintiff could not reasonably have expected that

14 he would be compelled to arbitrate an unrelated dispute based on the fact that DirecTV was an

15 unaccounted-for future affiliate, not solely because arbitration would produce an “absurd result,”

16 because of the breadth of the provision’s written language. See Revitch, 977 F. 3d at 717–18.

17 Plaintiffs’ reliance on Wexler is more apt, but suggests that the Court consider what a “reasonable

18 person” would be expressing an intent to agree to arbitrate, a suggestion that is consistent with

19 TWDC’s reliance on the ejusdem generis canon of interpretation, discussed infra. Wexler 211 F.

20 Supp. 3d at 504. In Wexler, the court found that even where AT&T had an expansive arbitration

21 clause in a wireless services contract:

no reasonable person would think that checking a box accepting the

22 “terms and conditions” necessary to obtain cell phone service would

obligate them to arbitrate literally every possible dispute he or she

23 might have with the service provider, let alone all of the affiliates

under AT&T’s corporate umbrella—including those who provide

24 services unrelated to cell phone coverage. Rather, a reasonable

person would be expressing, at most, an intent to arbitrate disputes

25 connected in some way to the service agreement.”

26 Id. The Wexler court found that plaintiff could not have reasonably expected to arbitrate

27 Telephone Consumer Protection Act (“TCPA”) claims related to unsolicited telephone calls and

1 text messages when she entered into a mobile phone service agreement containing an arbitration

2 clause because plaintiff’s TCPA claims did not relate to the service agreement. See id. at 505–06.

3 Here, despite Plaintiffs’ presentation of a hypothetical slip-and-fall at a Disney resort, Plaintiffs

4 claims relate to Fubo’s streaming services. Thus, these claims are connected to the Terms to

5 which Plaintiffs agreed, unlike the situation in Wexler.

6 This conclusion is further supported when the Court considers ejusdem generis, a canon of

7 interpretation under which “general terms that follow specific ones are interpreted to embrace only

8 objects of the same kind or class as the specific ones.” United States v. Amato, 540 F.3d 153, 160

9 (2d Cir. 2008), abrogated on other grounds by Lagos v. United States, 584 U.S. 577 (2018); see

10 also Madison Hill Corp. v. Cont’l Baking Co., 251 N.Y.S.2d 300, 303–04 (N.Y. App. Div. 1964).

11 The general catchall terms “any other product or service” follow terms that relate to Fubo’s

12 streaming services, such that the catchall is interpreted to capture only products or services

13 relating to Fubo’s streaming services, or the Terms themselves. Accordingly, the Court finds that

14 the Arbitration Agreement is appropriately limited and not so broad as to create absurd results.

15 In addition to raising a challenge to the Arbitration Agreement’s reference to “any other

16 product or service,” Plaintiffs also challenge a literal reading of the Future Affiliates Provision

17 because they could not have “reasonably expected” the arbitration clause to extend to TWDC. See

18 Opp’n 10–12 (“[N]o reasonable Fubo subscriber could have expected in mid-to-late 2024 that,

19 someday, an unrelated claim that he or she has against TWDC would live or die by Fubo’s

20 Terms.”). Again, Plaintiffs rely on cases considering arbitration clauses binding only “affiliates,”

21 rather than “future affiliates,” or that contain other forward-looking language. See id. at 11–12

22 (relying on Revitch, which bound only “affiliates” to arbitrate, not future affiliates, and Wexler,

23 which concluded that a contract was not formed as to arbitration because the breadth of the clause

24 foreclosed the existence of mutual intent). Plaintiffs argue that when they accepted the Terms,

25 TWDC and Fubo were not only unaffiliated companies but adversaries in antitrust litigation,

26 underscoring that Plaintiffs could not have reasonably expected to arbitrate with TWDC. Id. at 12.

27 But courts have repeatedly found that future affiliates provisions, or clauses granting rights to

1 successors, are valid, despite the existence of some inherent uncertainty. See, e.g., Cloney’s

2 Pharmacy, Inc. v. Wellpartner, Inc., 2024 WL 4349291, at *5 (S.D.N.Y. Sept. 30, 2024)

3 (“Plaintiffs accepted amendments to the Arbitration Clause subsequent to Plaintiffs’ signing of the

4 CPAs, but prior to CVS Health’s acquisition of Defendant, that did include ‘future’ ‘affiliates’”);

5 Awad, 2025 WL 753865, at *6 (finding that a signatory to an arbitration agreement may be

6 required to arbitrate a dispute with a non-signatory when the arbitration clause explicitly vests

7 rights to arbitrate in non-signatories).

8 For the above-mentioned reasons, the Court finds that Plaintiffs have not shown that the

9 Arbitration Agreement or Future Affiliates Provision is invalid or unenforceable. Accordingly,

10 TWDC may directly invoke the Arbitration Agreement to compel Plaintiffs to arbitrate their

11 individual claims.

12 C. Request for Discovery

13 Plaintiffs request that the Court permit discovery as to whether, at the time “future

14 affiliates” was added to the Terms, “that term was reasonably understood by the parties to

15 encompass all potential future stakeholders of Fubo, even direct competitors like Disney.” Opp’n

16 14–15. “The FAA permits the Court to order discovery to resolve whether a contract exists ‘only

17 if “the making of the arbitration agreement or the failure, neglect, or refusal to perform the same

18 be in issue.”’” Voll v. HCL Techs. Ltd., 2019 WL 144863, at *5 (N.D. Cal. 2019) (quoting

19 Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999)). Plaintiffs cite a handful of cases

20 for the general proposition that courts may permit discovery following a motion to compel

21 arbitration. See Opp’n at 14. But in each of these cases, there was an underlying question as to

22 whether the parties had, in fact, made an arbitration agreement. For example, in Knapfe v.

23 PeopleConnect, Inc., the Ninth Circuit remanded the case to the district court to allow discovery of

24 when an agency relationship was formed, a critical issue to determining whether the plaintiff had

25 assented to an arbitration agreement via an agent. 38 F.4th 824, 833 (9th Cir. 2022). And in

26 Hicks v. Citigroup, Inc., the court permitted limited discovery where plaintiff “ha[d] no

27 recollection of having received” credit card agreements that may have included arbitration clauses.

1 2012 WL 254254, at *2 (W.D. Wash. Jan. 26, 2012). A court in the Southern District of New

2 York found that discovery was appropriate to resolve a factual dispute of whether plaintiff

3 indicated to defendant that plaintiff was a principal such that plaintiff could enforce an arbitration

4 clause. Dun Shipping Ltd. v. Amerada Hess Shipping Corp., 234 F. Supp. 2d 291, 295, 297

5 (S.D.N.Y. 2002) (“Given the contested factual record, it is difficult to conclude, as a matter of law,

6 that Plaintiff was or was not a party to the Charter Party and, as a result, can or cannot enforce the

7 Charter Party arbitration provisions.”). Here, Plaintiffs’ primary argument is not that they did not

8 agree to the Terms, thereby agreeing to arbitrate, and indeed the Court has found that they did, but

9 rather that a non-signatory to the Terms cannot invoke the Agreement to compel arbitration. See

10 Opp’n § I. Further, Plaintiffs’ requested discovery is distinguishable from that requested in the

11 cited cases, as it does not seek to discover factual information relating to whether, for example,

12 Plaintiffs ever received the Terms or if they were actually the individuals managing their accounts.

13 As Defendant points out, Plaintiffs’ subjective understanding of “future affiliates” is superseded

14 by their “objective manifestation of assent to the agreement’s plain language.” Akhter v. Compass

15 Grp. USA, Inc., 2022 WL 16838330, at *2 (S.D.N.Y. Nov. 9, 2022). For the foregoing reasons,

16 the Court denies Plaintiffs’ request for limited discovery into what the term “future affiliates” was

17 reasonably understood to mean at the time that Plaintiffs assented to the Terms.

18 D. Unconscionability

19 Plaintiffs contend that even if there is an agreement to arbitrate between Plaintiffs and

20 TWDC, the Arbitration Agreement and delegation subclause, which delegates to an arbitrator any

21 threshold questions of arbitrability, are unconscionable and therefore unenforceable. Opp’n 19;

22 see also Terms § 22.2(a). TWDC, on the other hand, asserts that under similar circumstances,

23 courts have rejected unconscionability challenges.

24 Under New York law, an arbitration provision “will be deemed unenforceable on

25 unconscionability grounds only where it is ‘both procedurally and substantively unconscionable

26 when made.’” Spinelli v. Nat’l Football League, 903 F.3d 185, 208 (2d Cir. 2018) (quoting

27 Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10 (1988)). In other words, a plaintiff

1 arguing that such a provision is unconscionable must make “some showing of an absence of

2 meaningful choice on the part of one of the parties together with contract terms which are

3 unreasonably favorable to the party.” Hojnowski v. Buffalo Bills, Inc., 995 F. Supp. 2d 232, 238

4 (W.D.N.Y. 2014) (citing Gillman, 73 N.Y.2d at 10)). No set weight is to be given to any one

5 factor, such that procedural and substantive unconscionability operate on a sliding scale. David v.

6 #£1 Mktg. Serv., Inc., 113 A.D.3d 810, 812 (2014).

7 1. Substantive Unconscionability

8 Plaintiffs argue that the one-sidedness of the Terms and provisions therein demonstrates

9 substantive unconscionability. Opp’n 20. In support of their argument that the Terms

10 unreasonably favor Fubo (and Disney), Plaintiffs argue that the delegation subclause is facially

11 overbroad in a “manner that . . . redounds solely to Fubo’s (and Disney’s advantage).” Id.

12 Plaintiffs take issue with the delegation of questions surrounding formation, existence, and

13 validity of the arbitration agreement to the arbitrator and argue that it is otherwise overbroad. Id.;

14 see also Terms § 22.2(a).1 But courts have repeatedly found that similar provisions are not

15 substantively unconscionable where there is clear and unmistakable evidence that the parties

16 intended to arbitrate arbitrability issues. See, e.g., 33 Calvert Props. LLC v. AMEC LLC, 135

17 N.Y.S.3d 767, 776 (N.Y. Sup. 2020) (“[W]here there is a broad arbitration clause and the parties’

18 agreement specifically incorporates by reference the AAA rules providing that the arbitration

19 panel shall have the power to rule on its own jurisdiction, courts will ‘leave the question of

20 arbitrability to the arbitrators.’”(citation omitted)); PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1200

21 (2d Cir. 1996) (finding that a delegation provision within an arbitration agreement providing that

22 “any and all controversies . . . concerning any account, transaction, dispute or the construction,

23 performance, or breach of this or any other agreement . . . shall be determined by arbitration”

24

25 1 Plaintiffs also contend that delegation clauses such as the one in the Terms “would allow a

federal class case to be relegated to non-class arbitration without any initial judicial determination

26 that a valid agreement to arbitrate exists” and that the question of contract formation is reserved

for the courts. Opp’n 20. Defendant points out, and the Court agrees, that even where delegation

27 clauses exist, courts must still decide whether or not there is a valid agreement to arbitrate

arbitrability. See Reply 11.

1 demonstrated “the parties’ broad grant of power to the arbitrators” and that pursuant to an

2 objective reading of the agreement, the parties intended to arbitrate issues of arbitrability); see also

3 Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010). Plaintiffs continue that, in

4 combination with the delegation clause, the “near infinite scope” of the arbitration clause suggests

5 that it would apply to any conceivable lawsuit a subscriber might bring against Fubo or a future

6 affiliate as long as the lawsuit involves a “product or service.” Opp’n 20–21 (emphasis in

7 original). For the reasons discussed above, including the application of ejusdem generis canon of

8 interpretation, the Court is not persuaded by this argument. Plaintiffs’ reliance on McFarlane

9 does not convince the Court otherwise. There, the putative class action arose from a data breach at

10 Altice, a television and communications provider. McFarlane v. Altice USA, Inc., 524 F. Supp. 3d

11 264, 268 (S.D.N.Y. 2021). The named plaintiffs were current or former employees of Altice who

12 had personal identifying information stolen during the breach. Id. Altice sought to compel many

13 of the named plaintiffs to arbitrate claims based on an arbitration clause in the terms and

14 conditions to which they agreed as subscribers of Altice’s cable service. Id. at 273 (“Altice does

15 so not based on an arbitration provision contained in any employment agreements with these

16 Plaintiffs, but based on arbitration provisions contained in the General Terms and Conditions of

17 Service . . . pertaining to the company’s cable service.” (emphasis in original)). The court

18 characterized the referenced arbitration clause as “infinite” because it purported to cover any and

19 all disputes arising between the customer and Altice as well as its parents, subsidiaries, affiliates,

20 agents, and successors—the only limitation being that the dispute involve Altice or an associated

21 entity. Id. at 275. The court explained that the “the Ninth Circuit and a handful of district courts

22 around the country have declined to compel arbitration of claims based on ‘infinite arbitration

23 clauses’ where the claims at issue lack any nexus whatsoever to the agreement containing the

24 clause.’” Id. at 276. In reaching these decisions, the courts have held either that (1) the arbitration

25 agreements did not “truly encompass ‘any and all disputes’ between” because such a clause would

26 be unconscionable or (2) that no reasonable customer would have understood themselves to be

27 signing over their right to pursue any claim against the defendant company in perpetuity and that

1 no reasonable company in the defendant’s position could understand the customer’s manifestation

2 of assent to effect an absolute waiver of the customer’s right to sue the defendant in state or

3 federal court with respect to claims unrelated to an underlying service agreement. Id. at 276–77.

4 The court in McFarlane concluded that the arbitration provision could not be applied to claims

5 lacking a nexus to the Altice cable service agreement. Id. at 277. Here, however, Plaintiffs’

6 claims relate to the streaming services offered by Fubo, not an unrelated event such as the data

7 breach at issue in McFarlane.

8 Finally, Plaintiffs argue that TWDC has a “special, one-sided advantage” that is not

9 afforded to Plaintiffs because “[f]uture affiliates . . . can invoke Fubo’s rights under” the

10 arbitration agreement but” are not required to observe any of the obligations under the agreement.

11 Opp’n 22. This argument is very similar to Plaintiffs’ argument that TWDC cannot enforce the

12 arbitration clause because it did not “assume[] a corresponding obligation.” Id. at 9. For the

13 reasons discussed above, and because “TWDC and Plaintiffs agreed to play by the same

14 arbitration rules [and] users’ ‘heirs, assigns, and successors,’ may compel arbitration if Fubo

15 brings a dispute,” the Court finds that the Terms’ language does not render the Term, including the

16 delegation sub-clause and the Future Affiliates Provision substantively unconscionable. Reply 12;

17 see also Mot. 4–5 (citing Terms § 22).

18 2. Procedural Unconscionability

19 Plaintiffs next argue that the delegation subclause is procedurally unconscionable, and that,

20 because of the “pronounced substantive unconscionability,” of the Terms, “only a modest showing

21 of procedural unconscionability is required to render the arbitration provision unenforceable.”

22 Opp’n 22. Procedural unconscionability examines the contract-formation process and focuses on

23 “the size and commercial setting of the transaction, whether deceptive or high-pressured tactics

24 were employed, the use of fine print in the contract, the experience and education of the party

25 claiming unconscionability, and whether there was disparity in bargaining power.” Eisen v.

26 Venulum Ltd., 244 F. Supp. 3d 324, 341 (W.D.N.Y. 2017) (citing Gillman, 73 N.Y.2d at 11).

27 Here, there is undoubtedly a disparity in bargaining power, though as Plaintiffs note, this is

1 not dispositive. Opp’n 22. At the time that Plaintiffs assented to the Terms, Fubo was “a national

2 media corporation with large resources, ready access to legal counsel” and experience in litigation

3 and arbitration, whereas Plaintiffs are natural people without comparable resources. Id. But

4 Plaintiffs offer no evidence of other deceptive or high-pressured tactics which would support a

5 finding that the Terms are procedurally unconscionable. Though Plaintiffs note that the Terms are

6 a standardized contract imposed and drafted by the party of superior bargaining strength,

7 providing the subscriber with only the opportunity to adhere to the contract or reject it, there is “no

8 more than a minimal degree of procedural unconscionability.” Ronderos v. USF Reddaway, Inc.,

9 114 F.4th 1080, 1090 (9th Cir. 2024) (applying California rather than New York law). Further,

10 “in New York, being offered contract terms on a ‘form . . . offered on a take-it-or-leave it basis’ is

11 generally ‘insufficient to render the contract unconscionable.’” Pilon v. Discovery Commc’ns,

12 LLC, 769 F. Supp. 3d 273, 296 (S.D.N.Y. 2025) (quoting Anonymous v. JP Morgan Chase & Co.,

13 2005 WL 2861589, at *6 (S.D.N.Y. 2005)); see also Stoll v. JPMorgan Chase Bank, N.A., 2024

14 WL 4469174, at *6 (E.D.N.Y. July 16, 2024) (“Unconscionability for a contract of adhesion is

15 found where the party seeking to enforce the contract used high pressure tactics or deceptive

16 language in the contract and where there is inequality of bargaining power between the parties. In

17 addition, it must be shown that the contract inflicts substantive unfairness on the weaker party.”

18 (citation omitted)); Klos v. Lotnicze, 133 F.3d 164, 169 (2d Cir. 1997) (noting that the concept of

19 adhesion contracts “may not be invoked to trump the clear language of the agreement unless there

20 is a disturbing showing of unfairness, undue oppression, or unconscionability”).

21 As TWDC explains, and as set forth elsewhere in this Order, users who sign up for Fubo

22 subscriptions must assent to the Terms, which are available to users and posted on Fubo’s website,

23 before using the service. Mot. 3; see also Gersen Decl. Ex. B-2, ECF No. 210-3. The reference to

24 the “Terms of Service,” appears in blue font and the Terms themselves are hyperlinked. Gersen

25 Decl. Ex. B-2. Before payment is submitted, the Fubo website again includes a notice that, “[b]y

26 clicking ‘Submit’, [the user] acknowledge[s] that [they] have read and agree to Fubo’s Terms of

27 Service.” Id. at B-5. Again, the Terms are hyperlinked and are underlined. The Terms include an

1 Arbitration Agreement and a Class Waiver Provision, along with an option for users to opt out of

2 these portions of the Terms. Mot. at 4. Further, users may opt out and not be bound by the

3 arbitration agreement and class waiver provisions by sending a signed, written opt-out notice to an

4 identified email address; if a user opts out of a prior version of the Terms, Fubo honors any such

5 valid opt outs. Id.

6 The Court finds that, although the Terms are appropriately characterized as a contract of

7 adhesion, the degree of procedural unconscionability resulting from this characterization is de

8 minimis, if it exists at all. This finding does not support an overarching conclusion that the Terms

9 are unconscionable and therefore unenforceable, especially whereas here, there is a 30 day opt-out

10 provision. See Saizhang Guan v. Uber Techs., Inc., 236 F. Supp. 3d 711, 731 (E.D.N.Y. 2017)

11 (“Courts applying New York law have considered an opt-out provision as an important, if not

12 dispositive, factor in rejecting challenges of procedural unconscionability.”); see also Roitman v.

13 T-Mobile USA Inc., 2025 WL 3156503, at *9 (E.D.N.Y. July 28, 2025). Further, despite

14 Plaintiffs’ arguments to the contrary, the Court finds that the Arbitration Agreement and Class

15 Waiver Provision are not “concealed in dense legalese inaccessible to lay consumers.” Opp’n 24.

16 The very first page of the Terms refers to the mandatory arbitration provision and refers users to

17 Section 22, where, in capital letters, the introduction states, “PLEASE READ THIS SECTION

18 CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS—INCLUDING

19 YOUR RIGHT TO FILE A LAWSUIT IN COURT (BY REQUIRING YOUR DISPUTE TO BE

20 SUBMITTED TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS) AND LIMITING

21 YOUR RIGHTS TO RESOLVE YOUR DISPUTE AS PART OF A CLASS.” Terms § 22. In the

22 first paragraph that follows, users are directed to “read the entirety of Section 22 carefully as it

23 may significantly affect [their] legal rights.” And in the immediately succeeding sentence, the

24 Terms state, “Our past, present, and future affiliates and agents, as well as any of our successors

25 and assigns, can invoke Fubo’s rights under this agreement in the event they become involved in a

26 dispute.” Id.

27 The Court finds that the Terms, including the delegation subclause, are not

1 unconscionable. Accordingly, the Court finds that the Terms are enforceable.

2 E. Putative Class Claims and Class Waiver

3 TWDC argues that the Court should dismiss Plaintiffs’ putative class claims because

4 Plaintiffs Unger and Prescott agreed to give up their right to litigate claims as part of a class when

5 they assented to the Terms during their sign-up journeys. Mot. 23; see also Terms § 22(c).

6 Plaintiffs argue that the class waiver clause “falls with” the Arbitration Agreement. Opp’n 25.

7 “[T]he Supreme Court has recognized that arbitration agreements may contain waivers of

8 the class action mechanism and require the parties to pursue their claims individually.” Capriole

9 v. Uber Techs., Inc., 7 F.4th 854, 869 (9th Cir. 2021) (citing Epic Sys. Corp. v. Lewis, 138 S. Ct.

10 1612, 1619 (2018)). Second Circuit precedent likewise affirms the enforceability of class and

11 collective action waivers. See Guerrero, 2025 WL 3539105, at *15; Camilo v. Lyft, Inc., 384 F.

12 Supp. 3d 435, 439 (S.D.N.Y. 2019) (bringing New York law-based claims and finding the

13 Supreme Court’s decision in Epic Systems controlling for the notion that “the Arbitration Act

14 seems to protect pretty absolutely a party’s intention to use individualized rather than class or

15 collective action procedures” (internal quotations omitted) (citing Epic Sys. Corp., 138 S. Ct. at

16 1621)).

17 Because the Court finds that the Arbitration Agreement is valid, and waivers of the class

18 action mechanism are enforceable, the Court GRANTS TWDC’s motion to dismiss the class

19 claims.

20 F. Plaintiff Unger and Prescott’s Individual Claims Stayed Pending Arbitration

21 TWDC requests that this Court stay Unger’s and Prescott’s individual claims pending

22 arbitration pursuant to Section 3 of the FAA. This Section provides that “when a dispute is

23 subject to arbitration, the court ‘shall on application of one of the parties stay the trial of the action

24 until such arbitration has been had in accordance with the terms of the agreement.’” Smith v.

25 Spizzirri, 601 U.S. 472, 472 (2024) (citing 9 U.S.C. § 3). The word “shall” requires a court to stay

26 the proceeding. Id. at 476–77. Because TWDC may compel arbitration over Plaintiffs’ individual

27 claims for the reasons discussed above, the Court GRANTS TWDC’s request and STAYS this

1 action pending arbitration.

2 IV. CONCLUSION

3 For the foregoing reasons, TWDC’s Motion is GRANTED and this case shall be

4 STAYED pending the outcome of the arbitration of Plaintiff’s individual claims. Because the

5 Terms are valid and by agreeing to them, Plaintiffs waived their right to litigate claims as part of a

6 class, Plaintiffs’ putative class claims are DISMISSED.

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8 IT IS SO ORDERED.

9 Dated: September 8, 2026

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EDWARD J. DAVILA

12 United States District Judge

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