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Barnes & Noble Booksellers Successfully Enforces Arbitration Clause in Putative Class Action Suit Concerning Digital Privacy

On January 31, 2018, Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York granted Cravath client Barnes & Noble Booksellers, Inc.’s (“B&N”) motion to compel arbitration, ending a putative class action lawsuit brought by a purchaser of a DVD from B&N’s website. Plaintiff alleged that B&N shares customer information with social media outlets such as Facebook without customers’ express written consent, in violation of the federal Video Privacy Protection Act, the New York Video Consumer Privacy Act and the New York Video Consumer Protection Statute.

Judge Kaplan adopted the November 2017 recommendation by United States Magistrate Judge Katherine H. Parker to grant the motion to compel arbitration. The Magistrate found that B&N proved that there was an agreement to arbitrate between the parties and that plaintiff failed to show‎ that B&N’s arbitration provision was either substantively or procedurally unconscionable‎.

The Cravath team included partner Kevin J. Orsini and associates Lauren K. Ross, Daniel R. Cellucci and Daniel A. Silver. The case is Bernardino v. Barnes & Noble Booksellers, Inc., No. 17-cv-4570 (S.D.N.Y.).