Frazee et al v. FCA US LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SEAN FRAZEE, et al.,
Plaintiffs,
v.
FCA US LLC,
Defendant.
Case No. 1:25-cv-144
JUDGE DOUGLAS R. COLE
OPINION AND ORDER
Sean Frazee, Felicia Cook, and David Leshock, who are the Plaintiffs and
proposed class representatives in this putative class action, seek compensation for a
defect in their new and used 2021–2023 Jeep Wrangler vehicles. But Defendant FCA
US LLC contends, now for the second time, that the Court should compel the parties
to arbitrate this dispute. For the reasons stated below, the Court GRANTS FCA’s
Renewed Motion to Compel Arbitration (Doc. 23). But rather than dismissing the case
(as 	FCA 	requests), 	the 	Court 	opts 	to 	STAY 	the 	matter 	pending 	arbitration
proceedings.
BACKGROUND
Frazee, Cook, and Leshock each own a 2021–2023 Jeep Wrangler. (Compl.,
Doc. 1, #5–7). Each Plaintiff hails from, and purchased their particular vehicle in, a
different state. (See id.). Specifically, Frazee purchased a new 2023 Jeep Wrangler
from Mark Porter Chrysler Dodge Jeep Ram in Ohio on or about December 1, 2022.
(Id. at #5). Cook purchased a used 2021 Jeep Wrangler from Tunkhannock Auto Mart
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in Pennsylvania on or about October 1, 2023. (Id. at #6). And Leshock purchased a
new 2021 Jeep Wrangler from Al Serra Chrysler Dodge Jeep Ram in Michigan on or
about October 1, 2020. (Id. at #7). Plaintiffs allege that their vehicles share a common
fault—a so-called “Underhood Fire Defect” that “can cause the vehicle to catch fire,
starting under the hood, even if the vehicle is off and the key removed.” (Id. at #2).
Plaintiffs say the fault is common to both their Wranglers, as well as 2021–2023 Jeep
Gladiators (collectively, Class Vehicles). (Id.). They say that “the Class Vehicles can
catch fire at any time, no matter where they might be: parked on the street, in the
garage of an owner’s home, [or] being driven on a highway.” (Id.). In Plaintiffs’ telling,
the locus of the defect is in the vehicles’ “power steering pump electrical connector.”
(Id.). That theory has gained some further traction in the National Highway
Transportation and Safety Administration’s investigation into the matter. (Id.; see id.
at #11–22). But despite FCA’s knowledge of the defect, Plaintiffs allege that “FCA
has done nothing to remedy the problem or even warn consumers.” (Id. at #22).
Plaintiffs seek to represent two sets of classes—a nationwide class that the
Complaint defines as “[a]ll persons or entities who purchased or leased one or more
model year 2021–2023 Jeep Gladiator and Wrangler vehicles,” and state subclasses
that include “[a]ll persons or entities who purchased or leased one or more of the Class
Vehicles in the States of Pennsylvania, Ohio, and Michigan.” (Id. at #24). Plaintiffs
allege three claims: (1) a violation of the Magnuson-Moss Warranty Act, 15 U.S.C.
§ 2301 et seq. on behalf of the nationwide class or, in the alternative, the state
subclasses (Count I), (id. at #27–30); (2) a claim for breach of implied warranty on
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behalf of the state subclasses (Count II), (id. at #30–31); and (3) a claim for unjust
enrichment on behalf of the state subclasses (Count III), (id. at #31–32).
FCA sees things differently—starting with its view on the appropriate forum
for this dispute. On April 10, 2025, FCA filed a Motion to Compel Arbitration (Doc.
11). There, FCA asserted that each of the Plaintiffs’ vehicles were accompanied by
FCA warranty booklets that contain arbitration agreements. (Id. at #62–64). And
those agreements, FCA said, mandate that Plaintiffs arbitrate their claims. (Id. at
#65–68). Plaintiffs, on the other hand, said that FCA had not shown any agreement
to arbitrate. (See Resp., Doc. 14, #290–92).
Because the parties disputed whether they had entered into a valid and
enforceable arbitration agreement, the Court set a telephonic status conference to
discuss that motion and an accompanying motion to dismiss. (See 5/27/25 Notice).
There, the Court informed the parties that its first order of business would be to
“determine whether there is an agreement to arbitrate.” (6/3/25 Min. Order); see, e.g.,
Southard v. Newcomb Oil Co., No. 19-5187, 2019 WL 8111958, at *4 (6th Cir. Nov.
12, 2019) (quoting Midwest Mech. Contractors, Inc. v. Commonwealth Const. Co., 801
F.2d 748, 750 (9th Cir. 2011)). To that end, the Court denied FCA’s Motion to Compel
Arbitration without prejudice and directed the parties to engage in limited discovery,
“including subpoenaing the third-party dealerships and tendering narrowly tailored
document requests to Plaintiffs to obtain the dealership agreements” (which were
among the agreements on which FCA was relying to show the requisite commitment
to arbitrate). (6/3/25 Min. Order).
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The parties have since completed that limited discovery, and FCA is now back
before this Court with a Renewed Motion to Compel Arbitration (Doc. 23). There, FCA
contends that the documents it procured confirm that Plaintiffs agreed to arbitrate
their claims. (See generally id.). The parties discuss those documents on a Plaintiff-
by-Plaintiff basis, (see id. at #486–91; Pl.’s Resp. in Opp’n to Def.’s Renewed Mot. to
Compel, Doc. 24, #592–95), and the Court will do the same.
A. 	The Leshock Documents.
The first set of documents to which FCA points come from Leshock and the Al
Serra dealership.
In response to FCA’s subpoena, the Al Serra dealership produced a document
titled 	“FCA 	US 	LLC 	– 	Employee 	Advantage 	– 	Friends 	Program 	Pricing 	&
Acknowledgment Form” (the Leshock Agreement). (Doc. 23, #486; see Doc. 23-2
(Leshock agreement)). The dealership used the document in connection with its sale
to Leshock because he purchased his vehicle through FCA’s “Employee Advantage –
Friends Program.” (Leshock Decl., Doc. 24-4, #615). The Leshock Agreement reflects
a discount from the ordinary factory invoice price of Leshock’s 2021 Jeep Wrangler.
(See Doc. 23-2, #507). More importantly for present purposes, it also contains the
following arbitration provision:
I understand that, in consideration for this discount, I will not be able
to bring a lawsuit for any warranty disputes relating to this vehicle.
Instead, I agree to submit any and all disputes through the FCA US
Vehicle Resolution Process, which includes mandatory arbitration that
is binding on both FCA US and me. Before initiating this binding
arbitration, I will attempt to resolve the dispute: (1) at the dealership,
(2) through the Customer Assistance Center. I acknowledge that this
Form evidences a transaction involving interstate commerce, and that
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the Federal Arbitration Act … shall govern the interpretation and
enforcement of this Agreement. I represent to FCA US that before
purchasing or leasing a vehicle under this Program, I received and read
the Program Rules and Provisions (“Rules”), specifically including a
document entitled “Vehicle Resolution Process – Binding Arbitration.”
(Id.).
Leshock, for his part, counters that this agreement is not the “Voluntary
Binding Arbitration Provision” that FCA sought to enforce in its first motion to
compel arbitration. (Doc. 24, #594). This provision, he says, instead refers to FCA’s
separate “US Vehicle Resolution Process,” which has its own “Program Rules and
Provisions.” (Id.).
One might wonder why that difference matters. After all, what stops FCA from
enforcing the arbitration provision contained in the Leshock Agreement, even if that
provision is separate from the Voluntary Binding Arbitration Provision contained in
the 	warranty 	booklet? 	To 	plug 	that 	explanatory 	gap, 	Plaintiffs 	point 	to 	an
“unauthenticated” copy of the program rules for the US Vehicle Resolution Process
that Plaintiffs’ counsel found online. (See id. at #603; George Decl., Doc. 24-1, #605;
Doc. 24-5 (Program Rules)). Plaintiffs say that the program rules “show[] that
Defendant has not (and likely cannot) meet its burden to compel arbitration of
Plaintiff Leshock’s claims.” (Doc. 24, #603). That is at least in part because the
program rules provide for arbitration by the National Center for Dispute Settlement
(NCDS). (Id.). According to Plaintiffs, that is a problem because NCDS’s “decisional
authority” is “extremely narrow: ‘NCDS reviews only vehicle disputes involving FCA
US LLC’s Limited Warranty on a FCA US LLC vehicle’” and not “‘other types of
disputes.’” (Id. (quotation omitted)). But, according to Leshock, his “claims are not
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based” on any FCA limited warranty. (Id.). And so, he says, they “are not arbitrable.”
(Id.).
Next, FCA notes that Leshock produced evidence showing that he used an FCA
warranty numerous times to have free service work performed on his vehicle, as well
as a photograph of the front and back covers of Leshock’s owner’s manual. (Doc. 23,
#487; Doc. 23-3 (service invoices); Doc. 23-4 (Leshock owner’s manual covers)). To
explain why that matters, FCA first points to a QR code on the back cover, which is
adjacent to a sentence that reads, “download a free electronic copy of the most up-to-
date owner’s manual, Uconnect and warranty booklets.” (Doc. 23, #487 (capitalization
omitted)). According to FCA, that QR code takes users to a webpage of the warranty
booklet that contains a “voluntary binding arbitration provision,” (id.), that provides
as follows:
[T]his binding arbitration provision … applies to any dispute between
you and FCA US LLC and its affiliates …. This binding arbitration
provision does not affect any rights a consumer has to participate in any
of FCA US LLC’s nonbinding arbitration programs or any voluntary
arbitration programs sponsored by any state or government agency.
If your concern or dispute is not resolved within 60 days, you agree that
any dispute arising out of or relating to any aspect of the relationship
between you and FCA US LLC will not be decided by a judge or jury but
instead 	by 	a 	single 	arbitration 	administered 	by 	the 	American
Arbitration Association (AAA) under its Consumer Arbitration Rules in
effect at the time you signed the Agreement to Arbitrate. This includes
claims arising out of your warranty and claims arising before this
agreement, such as claims related to statements about our products.
…
You may opt out of arbitration within 30 days after signing the
agreement by sending a letter to: FCA US LLC Office of the General
Counsel … [s]tating your name, Vehicle Identification Number (VIN),
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and intent to opt out of the arbitration provision. If you do not opt out,
then this agreement to arbitrate is binding.
(Doc. 23, #487–88 (quoting Doc. 11-1 (2021 Wrangler warranty booklet)) (emphasis
omitted)). FCA also notes that Leshock did not produce any evidence suggesting that
he had opted out of the arbitration provision within the above-described 30-day opt-
out window. (Id. at #488)
Leshock, on the other hand, avers that he attempted to use the QR code, but
that it “did not direct [him] to a working website.” (Doc. 24-4, #615). Beyond that,
Leshock also says that the owner’s manual makes “no mention … about arbitration
or the Voluntary Binding Arbitration Program.” (Doc. 24, #594).
B. 	The Frazee Documents.
Turn next to the documents relating to Frazee and his Jeep Wrangler purchase
from the Porter dealership.
In response to FCA’s subpoena, the Porter dealership produced a “Vehicle
Service Contract” that Frazee signed with the Automobile Protection Corporation
(APCO) in connection with his vehicle purchase (the Frazee Agreement). (Doc. 23,
#488–89; see Doc. 23-5 (Frazee agreement)). Section N of the Frazee Agreement
contains the following arbitration provision and class action waiver:
1. Arbitration is a method of resolving any claim, dispute or controversy
without filing a lawsuit. In this Arbitration Provision, YOU, WE 1 and
the ADMINSTRATOR (the “Parties”) are waiving our right to go to court
and are agreeing instead to submit any claims, disputes or controversies
between the Parties to binding arbitration … The parties agree and
1 The contract defines the terms “WE, US, OUR” to mean “the issuing Provider/Obligor of
this CONTRACT as set forth on page 1.” (Doc. 23-5, #524). And that page states that the
“issuing provider,” “obligor,” and “administrator” is the “Automobile Protection Corporation.”
(Id. at #522).
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acknowledge that YOUR purchase of this CONTRACT affects interstate
commerce 	and 	the 	Federal 	Arbitration 	Act 	(“Act”) 	applies 	to 	this
Arbitration Provision.
2. The parties agree to resolve all claims, disputes and controversies
(collectively “Claims”) related in any way to this CONTRACT by binding
arbitration, including but limited to Claims related to the sale of this
CONTRACT and the relationship(s) and duties among the Parties, and
including further, without limitation, Claims arising under contract,
tort, statute, regulation, rule, ordinance or other rule of law or equity.
In addition, the arbitrator shall decide issues related to the applicability,
scope and validity of this Arbitration Provision. Notwithstanding this
agreement to arbitrate, each of the Parties retains the right to seek
remedies 	in 	small 	claims 	court 	to 	resolve 	any 	Claim 	within 	the
jurisdiction of small claims court. By signing this CONTRACT, YOU
acknowledge 	YOUR 	understanding 	that 	all 	Parties 	hereunder 	are
waiving their rights to go to court, except for small claims court, to
resolve any Claims arising under this CONTRACT between or among
the parties.
3. YOU agree and hereby expressly waive any right YOU may have to
litigate in small claims court, state, county or federal court any Claim
on a class-action basis or in any other collective or representative
proceeding as either a representative or member of a class, or as a
private attorney general, or to otherwise pursue any Claim in a class-
action in small claims, state, county or federal court. Notwithstanding
anything to the contrary in this Arbitration Provision, any dispute
regarding the validity and effect of this Class Action Waiver prohibiting
YOU from participating in or filing a class-action in any court shall be
determined exclusively by a court.
(Doc. 23, #489 (quoting Doc. 23-5. #527) (emphasis in original)).
Frazee contests FCA’s characterization of this provision. While FCA asserts
that Frazee contracted to “arbitrate all claims ‘related in any way’ to the purchase of
the vehicle,’” (id.), Frazee says that he has merely agreed to arbitrate disputes
between the parties that are “related in any way to this contract,” (Doc. 24, #593
(emphasis added)). And, Frazee points out, the “contract” is an agreement between
Frazee and the APCO that provides seven years of service protection on Frazee’s
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vehicle. (Id.). That matters, Frazee says, because he is not suing APCO, nor is he
making a claim based on the APCO agreement. (Id.). Additionally, the Frazee
Agreement “makes no mention of Defendant or its Voluntary Binding Arbitration
Provision.” (Id.).
FCA also seizes on a document titled “Notice to All Purchasers of Chrysler
Dodge Jeep Ram Vehicles,” which advises purchasers that “Ohio law requires you to
use a qualified arbitration program before [su]ing the manufacturer over new car
warranty 	disputes. 	Failure 	to 	arbitrate 	your 	claim 	may 	preclude 	you 	from
maintaining a lawsuit under section 1345.75 of the revised code,” (the Frazee
Arbitration Notice). (Doc. 23, #489–90 (quoting Doc. 23-6, #535 (Frazee Arbitration
Notice))). The Frazee Arbitration Notice further states that purchasers should
“consult [their] Warranty and Owner Assistance Information booklet[s]” for more
information regarding the arbitration program. (Doc. 23-6, #534).
Frazee again challenges FCA’s characterization of the document. He says that
the document does not constitute a binding agreement to arbitrate, and that the
document does not mention the Voluntary Binding Arbitration Provision. (Doc. 24,
#593). Rather, the document refers to Ohio’s Lemon Law. (Id.). Frazee, however, “is
not asserting lemon law clams or claims for breach of express warranty.” (Id. at #594).
And FCA “is not seeking to compel arbitration before the Better Business Bureau,”
(id.).—the arbitration program to which the Frazee Arbitration Notice refers, (see
Doc. 23-6, #534).
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Finally, FCA points to documents that Goldy Auto produced, which show that,
on several occasions, Frazee used the FCA warranty to have free service performed
on his vehicle. (Doc. 23, #490; see Doc. 23-7 (Frazee service documents)). And, as with
Leshock, FCA notes that Frazee produced no evidence showing that he exercised his
opt-out right within the 30 days specified in the warranty booklet. (Doc. 23, #490).
C. 	The Cook Documents.
Last up are the documents that FCA received on Cook. One of these is Cook’s
Retail Purchase Agreement with the Tunkhannock dealership, which Cook signed
(the Cook RPA). (Id.; Doc. 23-8 (Cook RPA)). According to FCA, the Cook RPA
“acknowledges that she signed an arbitration agreement.” (Doc. 23, #490). But, as
Cook points out, that is a rather fast and loose description of the provision that FCA
cites. (See Doc. 24, #592). In fact, the Cook RPA says only that Cook “acknowledges
that [she] signed many documents and other agreements in connection with the sale,
which may have included … [among other things, an] arbitration agreement.” (Doc.
23-8, #549 n.18 (emphasis added)). And, Plaintiffs say, “[w]hile … Cook ‘may have’
signed many of these documents with the sale, she didn’t sign many others, including
[any] arbitration agreement.” (Doc. 24, #592 (emphasis in original); see Cook Decl.,
Doc. 24-2, #608 (“I did not sign any agreement to participate in the Voluntary Binding
Arbitration Provision at any time.”)). The Tunkhannock dealership also produced a
“Retail Installment Sale Contract.” (Doc. 23, #490; Doc. 23-9 (Cook installment
contract)). But FCA does not describe the content of this document in its motion, and
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with good reason. As Cook points out, it “contains no arbitration provision or
reference to the Voluntary Binding Arbitration Provision.” (Doc. 24, #592).
The Tunkhannock dealership also produced a “window sticker” page for Cook’s
vehicle (i.e., a window insert that was apparently used to display price and other
relevant information when the 2021 Wrangler that Cook would eventually purchase
was sitting on Tunkhannock’s lot). (Doc. 23, #491; see Doc. 23-10 (Cook window
sticker)). The sticker directs customers to “[a]sk Dealer for a copy of the limited
warranties or see your owner’s manual for details.” (Doc. 23-10, #556). Again, though,
no mention of the arbitration provision.
Finally, much like Leshock, Cook produced a photograph of the front cover of
her owner’s manual. (Doc. 23, #491; see Doc. 23-11 (2021 Wrangler owner’s manual
photograph)). Because Cook “failed to produce a copy” of the manual in response to
FCA’s request for production, FCA provided its own “true and accurate copy” of
relevant excerpts from the manual. (Doc. 23, #491; Doc. 23-12 (2021 Wrangler owner’s
manual excerpts)). The first page of the manual notes that the “most up-to-date
Owner’s Manual, Radio Instruction Manual and Warranty Booklet can be found by
visiting the website on the back cover.” (Doc. 23, #491 (quoting Doc. 23-12)). And, just
like 	Leshock, 	the 	back 	cover 	contains 	a 	QR 	code 	directing 	the 	owner 	to 	the
appropriate website. (Id.). Further, the owner’s manual’s table of contents directs the
reader to page 362 of the manual for “warranty information,” and page 362 in turn
refers the reader to the appropriate website. (Id.). Cook, unsurprisingly, notes that
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the nearly four-hundred-page owner’s manual contains no mention of the Voluntary
Binding Arbitration Provision. (Doc. 24, #592–93).
Based on all this evidence, FCA maintains that the Court should compel
arbitration. (See generally Doc. 23). Plaintiffs have responded, (Doc. 24), and FCA has
replied, (Doc. 25). So the matter is ripe for review.
LEGAL STANDARD
The Federal Arbitration Act (FAA) provides that “[a] written provision in … a
contract evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction … shall be valid,
irrevocable, and enforceable.” 9 U.S.C. § 2. Because “arbitration is a matter of
contract,” courts must “‘rigorously enforce’ arbitration agreements according to their
terms.” Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 233 (2013) (quotation
omitted); In re StockX Customer Data Sec. Breach Litig., 19 F.4th 873, 878 (6th Cir.
2021).
Parties to an arbitration agreement may “delegate threshold arbitrability
questions to the arbitrator, so long as the parties’ agreement does so by clear and
unmistakable evidence.” In re StockX, 19 F.4th at 878 (quotation marks omitted)
(quoting Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 69 (2019)). “A
challenge to arbitration agreement formation,” however, “is always in the jurisdiction
of the courts.” Becker v. Delek U.S. Energy, Inc., 39 F.4th 351, 355 (6th Cir. 2022)
(emphasis added) (citing Granite Rock Co. v. Int’l Bd. of Teamsters, 561 U.S. 287,
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299–300 (2010)); see Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 681
(2010) (quotation omitted) (“[A]rbitration ‘is a matter of consent, not coercion.’”).
Section 4 of the FAA provides that if the “making of the agreement for
arbitration … is not in issue,” the Court must direct “the parties to proceed to
arbitration.” 9 U.S.C. § 4. But if formation is “in issue,” then “the court shall proceed
summarily to the trial thereof.” Id. To determine whether the parties have put
contract 	formation 	“in 	issue,” 	the 	Court 	“applies 	the 	standard 	for 	summary
judgment.” In re StockX, 19 F.4th at 881 (first citing Great Earth Cos. v. Simons, 288
F.3d 878, 889 (6th Cir. 2002); and then citing Mazera v. Varsity Ford Mgmt. Servs.,
LLC, 565 F.3d 997, 1001 (6th Cir. 2009)); see Fed. R. Civ. P. 56(a). Under that
standard, FCA, “as the movant asserting the existence of a contract, must initially
carry its burden to produce evidence that would allow a reasonable jury to find that
a contract [for arbitration] exists.” In re StockX, 19 F.4th at 881 (citations omitted).
The burden then shifts to the non-moving party—here, Plaintiffs—“to cite particular
materials in the record to show that there is a genuine dispute of material fact that
could lead a rational trier of fact to find that a contract does not exist.” Id. at 882
(cleaned up) (citations omitted). If, based on the competing evidence the parties put
forward, “‘a reasonable finder of fact could conclude that no valid agreement to
arbitrate exists,’ the issue is subject to resolution by a jury.” Mazera, 565 F.3d at 1001
(quoting Great Earth, 288 F.3d at 889).
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LAW AND ANALYSIS
In support of its Motion to Compel Arbitration, FCA contends that it has put
forth sufficient evidence that each named Plaintiff has agreed to arbitrate their
claims. (Doc. 23, #496–500). It also contends that Plaintiffs have delegated the
question whether their claims are arbitrable to an arbitrator. (Id. at #493–96).
Plaintiffs, on the other hand, assert that FCA has failed to produce evidence that
could lead a rational trier of fact to conclude that a contract exists. (See Doc. 24, #595–
97, 599–603). Alternatively, Plaintiffs contend that, even if FCA has produced
sufficient 	evidence 	to 	support 	the 	conclusion 	that 	Plaintiffs 	agreed 	to 	FCA’s
Voluntary Binding Arbitration Provision, any such agreement is unconscionable. (See
id. at #597–98). Finally, Plaintiffs say that, to the extent the Court compels
arbitration on any of Plaintiffs’ claims, it should exercise its discretion to permit the
remaining claims to proceed. (See id. at #603–04).
A. 	Formation.
The Court starts with formation. But before it can get there, it must answer
an 	antecedent 	question—choice 	of 	law. 	“Because 	arbitration 	agreements 	are
fundamentally contracts, [the Court] review[s] the enforceability of an arbitration
agreement according to the applicable state law of contract formation.” Seawright v.
Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 972 (6th Cir. 2007). Here, the law of three
different states is arguably in play—Ohio (where this Court sits and where Frazee
purchased 	his 	vehicle), 	Michigan 	(where 	Leshock 	purchased 	his 	vehicle), 	and
Pennsylvania (where Cook purchased her vehicle).
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Ordinarily, the Court would conduct a choice-of-law analysis to determine
which body of contract law applies to which alleged agreement. Here, however, the
Court opts to apply Ohio contract law. That’s because Plaintiffs argue primarily Ohio
law in their briefing, (see generally Doc. 24), a decision that the FCA does not contest,
(see generally Doc. 23; Doc. 25). Thus, “[t]he parties’ litigation choices allow [the
Court] to avoid this choice-of-law issue.” AtriCure, Inc. v. Meng, 12 F.4th 516, 525
(6th Cir. 2021); see also Masco Corp. v. Wojcik, 795 F. App’x 424, 427 (6th Cir. 2019)
(citations omitted) (“[Courts] regularly rely on the litigants’ agreement about the
governing law (or, more often, on one litigant’s failure to dispute the issue) to avoid
deciding what could be knotty choice-of-law questions.”). 2
So with that preliminary matter out of the way, the Court turns to the
formation issue itself. In doing so, though, the Court pauses to explain the difference
between two related, but separate, concepts—formation and enforceability. Questions
of formation go to whether the parties formed a contract at all. Questions of
enforceability, by contrast, ask whether a court should enforce an already-formed
contract (or a given provision in such a contract). “[C]ontract formation under Ohio
law requires an offer, acceptance, consideration, a manifestation of mutual assent,
and a meeting of the minds as to the essential terms of the contract.” McFadden v.
Charter Commc’ns, Inc., 2024-Ohio-4564, ¶ 14 (9th Dist.). Enforceability doctrines,
by 	contrast, 	involve 	things 	like 	unconscionability. 	A 	party 	raising 	an
2 Plaintiffs note, in connection with a separate issue, that “the claims of each Plaintiff are
based on the laws of different states.” (Doc. 24, #604). Should the parties wish to explore the
choice-of-law issues in this case in the future, the Court encourages the parties to devote a
portion of their briefing to the issue.
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unconscionability argument is not saying that no contract was formed (in the sense
that acceptance, for example, was missing). Rather, they contend that the already
formed contract should not be enforced (or perhaps should be voided) in whole or in
part.
The distinction matters when dealing with arbitration issues. That is because,
as noted above, questions of formation are for the court. Questions of enforceability,
by contrast, are arbitrability questions and thus may (or may not be, depending on
the terms of the arbitration agreement) questions for the arbitrator. So the “who
decides” question turns, at least in the first instance, on whether the Plaintiffs here
are actually challenging formation or instead challenging enforceability.
Plaintiffs claim that they are challenging the former—formation. But the
Court disagrees. That is because Plaintiffs’ formation arguments seem to rest on an
underlying assumption that, generally speaking, arbitration provisions bind only if
they are entered into separate and apart from any other underlying contract. In other
words, they believe the inquiry is whether a given plaintiff specifically formed an
arbitration agreement, not merely whether the plaintiff formed a contract that
included a requirement to arbitrate. (Larger contracts that include an arbitration
provision are sometimes referred to as “container contracts,” see, e.g., MZM Constr.
Co. v. N.J. Bldg. Laborers Statewide Benefit Funds, 974 F.3d 386, 397 (3d Cir. 2020),
and that is the terminology the Court uses here.)
Plaintiffs’ reliance on Frisch v. FCA US LLC, No. 2:24-cv-10546, 2025 WL
1592935 (E.D. Mich. June 5, 2025), demonstrates the point. (See Doc. 24, #596–97).
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The Frisch court admittedly denied a motion to compel arbitration based on one of
the arbitration provisions that FCA relies on here. 2025 WL 1592935, at *1. In
reaching that result, though, the case cites Hergenreder v. Bickford Senior Living
Group, LLC, 656 F.3d 411 (6th Cir. 2011), and Tillman v. Macy’s, Inc., 735 F.3d 453
(6th Cir. 2013). Frisch, 2025 WL 1492935, at *4–5.
In 	Hergenreder, 	an employer 	sought 	to 	compel 	arbitration 	based 	on 	an
arbitration provision in the employer’s “Dispute Resolution Procedure” (DRP). 656
F.3d at 414. Although the plaintiff did not sign the DRP, she did sign various other
documents at the outset of her employment. Id. at 413–14. One such document was a
form indicating “she had read and understood the terms of Bickford’s Employee
Handbook.” Id. at 414. And the employee handbook, in turn, referred readers to the
DRP “for details,” but did not explain that the DRP “contained arbitration terms and
constituted an arbitration agreement.” Id. at 417. On these facts, the Sixth Circuit
held that there was “neither an offer nor an acceptance.” Id. at 418. There was no
offer because a mere “reference” to the DRP in the handbook was insufficient to show
an objective “manifestation of willingness to enter into a bargain.” Id. (citation
omitted). And there was therefore no acceptance because there was “no evidence” that
the plaintiff knew that the DRP contained an arbitration agreement or arbitration
information. Id. at 419.
Tillman, which also involved an opt-out scheme, went the other way. There,
though, the defendant-employer (1) mailed the plaintiff-employee documents that
“described in detail the dispute-resolution process and noted that while employees
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were automatically ‘covered’ by arbitration by virtue of continuing employment with
Macy’s, they could opt out of binding arbitration,” as well as an election form that
described the opt-out procedure; (2) required the plaintiff to attend a “mandatory
video screening” that provided “detailed information about the opt-out process”;
(3) sent the plaintiff a brochure indicating that, because she had not “returned her
opt-out 	form,” 	she 	was 	now 	bound 	by 	the 	program, 	“specifically
including … [a]rbitration”; and (4) sent another election form and brochure when
Macy’s updated its program, specifically noting that the plaintiff would need to return
the opt-out form or else “be bound to arbitrate future disputes.” 735 F.3d at 455–56.
On these facts, the Sixth Circuit held that “Macy’s effectively communicated to
Tillman an offer to enter into a binding arbitration agreement and to waive her right
to a jury trial.” Id. at 456. Unlike in Hergenreder, Macy’s provided more than a “vague
reference in an employee handbook that did not explicitly mention arbitration.” Id.
at 459 (citing Hergenreder, 656 F.3d at 414–16). And because the Tillman plaintiff
thus had more than “general knowledge that a dispute-resolution procedure existed,”
the offer to arbitrate was effective. Id. In light of those facts, the plaintiff’s conduct—
failing to return the opt-out form while continuing her employment at Macy’s—
“mirror[ed] that called for in the offer,” making the plaintiff’s acceptance effective.
Id. at 460.
In short, both cases involved pure questions of formation—had the parties
formed a contract that required arbitration? And in both Hergenreder and Tillman,
the courts correctly concluded that this was a question the courts must answer. But
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in the Court’s view, neither case is on point given the facts here. That’s because both
cases appear to involve situations where the question was whether the parties had
formed a standalone arbitration agreement. True, the plaintiff in Hergenreder “signed
numerous documents, including her employment application, tax and insurance
forms, a background-check-consent form, a form agreeing to notify Bickford of any
subsequent criminal convictions, … a form acknowledging that she received notice of
Bickford’s worker’s compensation procedure,” and “an acknowledgment that she had
read and understood the terms of Bickford’s Employee Handbook.” 656 F.3d at 413–
14. But neither party identified some broader contract of which the arbitration
agreement formed a part. Rather, the question in that case was solely whether the
parties had formed a standalone agreement to arbitrate. Likewise, in Tillman, there
was no indication that the arbitration agreement was included in some larger
container agreement. Here, by contrast, the arbitration agreement is but one term in
a broader contractual agreement that Plaintiffs entered into when they purchased
their vehicles.
That difference matters. Courts are clear that, when a party forms a container
agreement, i.e., enters a contract that includes an arbitration provision, then a party
seeking to challenge formation must direct their challenge at the container contract
itself. See, e.g., Iezzi v. CrossCountry Mortg., LLC, No. 23-2827, 2024 WL 37951, at
*5 (E.D. Pa. Jan. 3, 2024) (“A claim that the container contract lacked mutual assent
necessarily puts the existence of the arbitration agreement at issue and thus goes
straight to court.” (internal quotation marks omitted)). In other words, if the
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Plaintiffs here intend to challenge formation, and the arbitration provision they are
contesting is a term included in a container agreement, then they must show that
they did not enter that container agreement. They cannot simply contend that,
container agreement notwithstanding, they did not separately form the arbitration
agreement included within it. Rather, if they are admitting that they formed the
container agreement (that included the arbitration provision), but contend that the
arbitration provision nonetheless should not be enforceable (e.g., because FCA failed
to adequately disclose it or some such argument), then that is an enforceability
argument, not a formation argument. And, as described below (see infra Law &
Analysis, Part B), under the arbitration agreements here, questions of enforceability
go to the arbitrator.
With that point of clarification in mind, the Court turns to the evidence FCA
presents.
1. 	Leshock 	Has 	Agreed 	to 	Arbitrate 	His 	Claims 	Under 	the
Voluntary 	Binding 	Arbitration 	Provision 	Contained 	in 	the
Warranty Booklet and the Arbitration Provision in the Leshock
Agreement.
Recall that FCA proffers four pieces of evidence to support the proposition that
Leshock has agreed to arbitrate his claims: (1) the Voluntary Binding Arbitration
Provision contained in the digital warranty booklet; (2) the arbitration provision
contained in the Leshock Agreement; (3) photographs of Leshock’s owner’s manual,
which FCA uses to contend that Leshock had adequate access to the Voluntary
Binding Arbitration Provision; and (4) service invoices, which, according to FCA,
demonstrate that Leshock took advantage of FCA’s warranties for free services. The
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Court ultimately concludes that FCA has put forth evidence that would allow a
reasonable trier of fact to conclude that the parties formed an agreement that
included an arbitration provision, both as to the warranty (which contained a
Voluntary Binding Arbitration Provision) and the Leshock Agreement.
Start with FCA’s warranty booklet. FCA argues that Leshock “agreed to
arbitrate through the FCA Warranty Booklet when he received notice through the
Owner’s Manual (and failed to opt out within 30 days).” (Doc. 23, #497). Leshock
responds that FCA’s “unilateral and undisclosed” arbitration provision is insufficient
to show an agreement to arbitrate. (Doc. 24, #596). Leshock’s argument echoes Frisch,
which asserted that “[w]hile FCA’s … argument[] might demonstrate that FCA put
[Leshock] on notice of the written warranties, none of this evidence demonstrates FCA
notified [Leshock] of the agreement to arbitrate contained therein.” Frisch, 2025 WL
1592935, at *7. And absent notice of FCA’s offer, Leshock says, nothing follows from
Leshock’s inaction. (Doc. 24, #596–97).
The Court is not persuaded. While Leshock may not have been aware of the
arbitration provision in the warranty booklet, he was certainly on notice that the
broader contract into which he was entering included warranties. And one of the
provisions in the booklet that contained the warranties was an arbitration provision.
That alone is sufficient to show that the agreement included the arbitration provision;
FCA need not demonstrate Leshock somehow specifically agreed to the arbitration
provision separate and apart from the underlying container agreement.
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Indeed, Leshock’s post-purchase conduct lends support to the notion that he
entered the broader warranty contract (of which the arbitration provision was merely
one component). FCA points to several invoices, which, it says, demonstrate that
Leshock took advantage of the warranties contained in the warranty booklet. (See
Doc. 23, #497; Doc. 23-3).
The Court agrees. The invoices reflect that Leshock took his 2021 Wrangler in
for service several times between August 2021 and December 2024. (See Doc. 23-3,
#509–17). And, in each case, the invoices reflect that Leshock relied on a warranty to
avoid the cost of repairs. 3 (See id.). Moreover, even if he lacked actual knowledge of
the arbitration provision and its contents, he was on constructive notice of the
warranty’s terms. See, e.g., W.K. v. Farrell, 853 N.E.2d 728, 733 (Ohio Ct. App. 2006)
(“[I]t is well established that one party’s failure to read relevant documents before
signing them does not negate the intent to be bound by those documents.”). In short,
Leshock formed a warranty contract with FCA, and that contract included an
arbitration provision. True, Leshock may wish to challenge the enforceability of that
provision on the facts here, but the point is simply that any such challenge does not
fall within the courts-must-decide-formation-questions rubric.
FCA has therefore carried its initial burden of putting forth facts that would
permit a reasonable trier of fact to find that Leshock formed a contract that included
an arbitration provision (the Voluntary Binding Arbitration Provision). And nothing
that Leshock has submitted creates a genuine dispute of material fact as to whether
3 Nowhere in Plaintiffs’ briefing does Leshock contest that he availed himself of FCA’s
warranties for the repairs.
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he formed this agreement. So the Court concludes that a jury trial is not warranted
on the question whether Leshock is a party to a contract that includes the Voluntary
Binding Arbitration Provision.
But that’s not all. In addition to the warranty agreement (and its Voluntary
Binding Arbitration Provision), FCA also points to the Leshock Agreement, which
also contains an arbitration provision. (See Doc. 23, #486–87, 497–98; Doc. 23-2; Doc.
25, #631–32). And that agreement, which Leshock signed, expressly bars Leshock
from bringing “a lawsuit for any warranty disputes relating to this vehicle.” (Doc. 23-
2, #507 (emphasis added)). Rather, Leshock must submit “any and all” such disputes
“through 	the 	FCA 	US 	Vehicle 	Resolution 	Process, 	which 	includes 	mandatory
arbitration that is binding on both FCA US and me.” (Id.). Because this is a warranty
dispute, FCA has for a second time carried its initial burden of proving up facts that
would allow a reasonable trier of fact to conclude that an arbitration agreement exists
between Leshock and FCA.
Leshock attempts to create a genuine dispute of material fact as to the Leshock
Agreement by arguing that the FCA US Vehicle Resolution Process does not handle
claims like those that Plaintiffs assert here. (See Doc. 24, #602–03). In support,
Leshock quotes the “Official Program Rules for the Employee Advantage – Friends
Program.” (Id. at #603; see Doc. 24-1, #605 (providing a link to the rules); Doc. 24-5).
The program rules, which, as noted, provide for arbitration under the auspices of the
NCDS, are “extremely narrow: ‘NCDS reviews only vehicle disputes involving FCA
US LLC’s Limited Warranty on a FCA US LLC vehicle’ and makes clear that the
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‘Vehicle Resolution Process does not review other types of disputes.’” (Doc. 24, #603).
But Leshock says that his warranty claims “are not based on FCA US LLC’s Limited
Warranty,” and that they are therefore “not arbitrable.” (Id.).
But that argument again focuses on the wrong question. Leshock formed a
contract (the Leshock Agreement) that includes an arbitration provision. So, if he
contends that the dispute here is one that falls outside the scope of that provision,
that is a question of arbitrability, not formation. But understood that way, the
relevant question would be who—the Court or the arbitrator—decides arbitrability
under this provision. The Court returns to that issue below (see infra Law & Analysis,
Part B), but for now simply notes that this is not a dispute about formation, and thus
not a question assigned to the Court on courts-must-decide-formation grounds.
In sum, the Court concludes that FCA has put forth sufficient factual matter
to allow a jury to conclude that the parties formed agreements that included
arbitration provisions. And because Leshock has not created a genuine issue of
material fact as to whether he formed either agreement, the Court concludes that a
jury resolution of the issue is unwarranted.
2. 	Frazee Has Agreed to Arbitrate His Claims Under the Voluntary
Binding Arbitration Provision.
Next up is Frazee. In support of its argument for formation, FCA points to
(1) the arbitration provision in the Frazee Agreement, (2) the Frazee Arbitration
Notice, and (3) invoices demonstrating that Frazee relied on FCA’s warranties for
free repairs. (Doc. 23, #488–90).
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The Court proceeds immediately to the third item, which it finds dispositive
here. It is clear that Frazee was on notice that the vehicle he purchased was covered
by a warranty when he purchased it. And, as above, the mere fact that Frazee did not
specifically agree to the arbitration provision is beside the point because the
arbitration provision in the warranty booklet is but one part of a larger container
contract (the warranty). Additionally, just as with Leshock, FCA has provided
evidence that Frazee has on several occasions relied on FCA’s warranties for the
purpose of obtaining free service work, confirming that he is in fact a party to that
contract. (See Doc. 23-7, #536–46). And because the Plaintiffs’ briefing does not
contest that Frazee relied on the warranty for the repairs, the Court concludes that
Frazee has failed to create a genuine dispute of material fact as to whether the parties
formed an agreement to arbitrate that at least arguably covers Frazee’s claims.
3. 	Cook Has Also Agreed to Arbitrate Her Claims.
Finally, 	the 	Court 	comes 	to 	Cook. 	While 	FCA 	points 	to 	no 	evidence
demonstrating that Cook has relied on FCA’s warranties for free repairs, FCA has
produced 	window 	stickers for 	Cook’s 	vehicle 	that 	expressly 	mention 	warranty
coverage. (Doc. 23-10, #556). The sticker directs purchasers to the “owner’s manual”
or to ask the dealer for a “copy of the limited warranties” for more information. (Id.).
As noted, this sticker would have been on Cook’s vehicle when she purchased it. Thus,
Cook cannot claim that she was unaware that her vehicle came with warranties.
True, the purchaser may be entirely unaware that the warranty contains an
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arbitration provision, but, at the risk of undue repetition, that goes to enforceability,
not formation.
Cook’s attempts to resist this conclusion fall short because they ignore this
distinction. In challenging formation, she relies solely on the claim that the cited
materials contain “[n]o mention of arbitration or the Voluntary Binding Arbitration
Provision.” (Doc. 24, #592). That may be so, and it may well provide a reason for not
enforcing the arbitration provision. But that provision is one element in a larger
contractual agreement, and there is no legitimate question here as to whether she
formed that container agreement.
In 	sum, 	all 	three 	Plaintiffs 	formed 	contracts 	that 	include 	arbitration
provisions.
B. 	Arbitrability.
The upshot is that FCA has successfully demonstrated the existence of four
agreements: (1) a warranty (that includes a Voluntary Binding Arbitration Provision)
with Leshock, (2) a separate agreement with Leshock (the Leshock Agreement) that
includes an arbitration provision, (3) a warranty with Frazee, and (4) a warranty with
Cook.
The Court now proceeds to answer another question: who decides whether
these agreements (1) are enforceable, and (2) have a scope that covers the instant
dispute? As this Court has previously explained, “parties can agree to ‘have an
arbitrator decide not only the merits of a particular dispute, but also gateway
questions of arbitrability, such as … whether their agreement covers a particular
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controversy,” i.e., questions of scope. Great Am. Ins. Co. v. Johnson Controls, Inc., No.
1:20-cv-96, 2020 WL 4569126, at *7 (S.D. Ohio Aug. 7, 2020) (quoting Henry Schein,
589 U.S. at 68–69). Likewise, parties can delegate decisional authority on defenses
such as unconscionability, which go to whether the agreement is enforceable, rather
than whether the agreement was formed. See, e.g., Wealth Assistants LLC v. Thread
Bank, No. H-24-40, 2024 WL 2980812, at *9 (S.D. Tex. June 13, 2024) (“Plaintiff’s
procedural and substantive unconscionability arguments must be decided by the
arbitrator and not the court.”). The underlying notion is that the arbitration provision
also includes “an additional, antecedent agreement about who, a court or an
arbitrator, should answer these [gateway] questions.” Great Am. Ins. Co., 2020 WL
4569126, at *7 (quoting Rent-A-Center West, Inc. v. Jackson, 561 U.S. 63, 67 (2010)).
“And when parties have agreed to arbitrate ‘arbitrability,’ a court may not disregard
their agreement.” Blanton v. Domino’s Pizza Franchising LLC, 962 F.3d 842, 844 (6th
Cir. 2020). That is true even when the agreement to arbitrate arbitrability is imputed
from constructive notice of the arbitration provision.
That said, actually showing that parties have agreed to delegate threshold
questions of arbitrability is no small task. The Supreme Court made clear in First
Options of Chicago, Inc. v. Kaplan, that the default rule is that courts decide
arbitrability. 514 U.S. 938, 944 (1995). To defeat that presumption, the party seeking
arbitration must put on “clear and unmistakable evidence” to the contrary. Id.
(cleaned up).
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As to the first, third, and fourth agreements—i.e., those formed through the
warranty—the answer to whether FCA has done so is clear. In Blanton, the Sixth
Circuit joined “eleven out of twelve” sister circuits in holding that “the incorporation
of the [American Arbitration Association’s Consumer Arbitration Rules] provides
‘clear and unmistakable’ evidence that the parties agreed to arbitrate ‘arbitrability.’”
962 F.3d at 846 (citations omitted). And here, the Voluntary Binding Arbitration
Provisions in the warranty agreements expressly incorporate those rules. (See Doc.
11-1 (“[Y]ou agree that any dispute arising out of or relating to any aspect of the
relationship between you and FCA US LLC will not be decided by a judge or jury but
instead by a single arbitration administered by the American Arbitration Association
(AAA) under its Consumer Arbitration Rules.” (emphasis omitted)). So the first, third,
and fourth agreements delegate arbitrability to the arbitrator.
The Court reaches a slightly different conclusion with respect to the Leshock
Agreement. 	Unlike 	the 	Voluntary 	Binding 	Arbitration 	Provision, 	the 	Leshock
Agreement does not incorporate the AAA Consumer Arbitration Rules. And while the
Leshock Agreement contains broad language requiring arbitration “for any warranty
disputes relating to this vehicle,” (Doc. 23-2, #507), out-of-circuit authority suggests
that “broad arbitration clauses that generally commit all interpretive disputes
‘relating to’ or ‘arising out of’ the agreement do not satisfy the clear and unmistakable
test,” Carson v. Giant Food, Inc., 175 F.3d 325, 330 (4th Cir. 1999).
Nonetheless, the Court concludes that the provision applies to the Leshock
Agreement. Because arbitration provisions are contracts, federal courts interpret
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them in accordance with state law principles. Seawright, 507 F.3d at 972. In Ohio,
contracts “must be given a just and reasonable construction that carries out the intent
of the parties as evidenced by the contractual language.” Ohio Water Dev. Auth. v. W.
Rsrv. Water Dist., 776 N.E.2d 530, 535 (Ohio Ct. App. 2002) (citing Skivolocki v. E.
Ohio Gas Go., 313 N.E.2d 374 (Ohio 1974). “The parties’ intent is presumed to reside
solely within the language employed in the agreement.” Id. (citing Kelly v. Med. Life
Ins. Co., 509 N.E.2d 411 (Ohio 1987)). And here, the Leshock Agreement’s plain
language is broad enough to sweep in Leshock’s warranty claims. (See Doc. 23-2, #407
(“I agree to submit any and all [warranty] disputes through the FCA US Vehicle
Resolution Process.” (emphasis added))). So, although the Leshock Agreement does
not delegate arbitrability to an arbitrator, the Court, considering the question for
itself, concludes that the Agreement covers Leshock’s warranty claims in this dispute.
C. 	Remedy.
That leaves one final piece of housekeeping: the appropriate remedy. FCA’s
Motion to Compel Arbitration requests dismissal. (Doc. 23, #500). Plaintiffs, on the
other hand, say that the Court should not dismiss, but should rather stay the case, if
it holds for FCA. (Doc. 24, #603–04).
Here, the Court agrees with Plaintiffs. “There is a circuit split over how much
discretion a district court has when considering whether to stay or dismiss an action
once the parties have been compelled to arbitrate.” Wells Fargo Clearing Servs., LLC
v. Satter, No. 1:22-cv-539, 2025 WL 1582253, at *4 (S.D. Ohio June 4, 2025) (citing
Anderson v. Charter Commc’ns, Inc., 860 F. App’x 374, 379–80 (6th Cir. 2021)). While
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the “Federal Arbitration Act indicates that the court ‘shall on application of one of
the parties stay the trial of the action until such arbitration has been had in
accordance with the terms of the agreement,’” “the Sixth Circuit has allowed district
courts to choose to dismiss the action if ‘it is clear that the entire controversy between
the parties will be resolved by arbitration.’” Id. (citations omitted). Here, “the parties
left several ‘gateway’ issues for the arbitrator,” and as a result, “the arbitration may
not resolve all claims.” Anderson, 860 F. App’x at 380. Additionally, “a dismissal,
unlike a stay, permits an objecting party to file an immediate appeal,” which
“undercuts the pro-arbitration appellate-review provisions of the Act.” Arabian
Motors Grp. W.LL. v. Ford Motor Co., 19 F.4th 938, 942 (6th Cir. 2021). For these
reasons, the Court concludes that a stay pending arbitration is the best course.
CONCLUSION
For the reasons discussed above, the Court GRANTS FCA’s Renewed Motion
to Compel Arbitration (Doc. 23). To be clear, the arbitrator assigned to any of the
three disputes may well conclude that the arbitration provision at issue is not
enforceable or does not cover the sort of claims at issue here. But under the terms of
the arbitration agreements here, that is a matter for the assigned arbitrator to decide.
Consistent with that, the Court STAYS this matter pending resolution of the
arbitration proceedings.
SO ORDERED.
March 16, 2026
DATE 	DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
UGLAS	S	S	S R. COLE
TED STATES DISTRICT J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	JU
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