Casella v. Solmax Geosynthetics

Termont Superior Court
Filed 12/16/25
Rutland nit

VERMONT SUPERIOR COURT CIVIL DIVISION
Rutland Unit Case No. 25-CV-01524
83 Center St
Rutland VT 05701
802-775-4394
www.vermontjudiciary.org

Casella Waste Systems Inc. v. Solmax Geosynthetics, LLC

DECISION AND ORDER ON PLAINTIFF'S SECOND RENEWED MOTION TO
STAY ARBITRATION
In this action for declaratory and monetary relief, Plaintiff Casella Waste Systems, Inc.

("Casella'') claims that Defendant Solmax Geosynthetics, LLC ("Solmax'') sold defective needle-

laden geosynthetic clay liner ("GCL") for two of Casella's landfill projects. The parties disagree

about whose terms and conditions control the transaction and whether they are required to arbitrate

their dispute. Casella moved the Court to stay arbitration proceedings that Solmax initiated in Texas

pending the outcome of this decision.

On June 30, 2025, the Court granted a temporary stay pending a hearing. On September 29,

2025, the Court conducted a hearing at which it took evidence and heard testimony from witnesses

Samuel Nicolai, Kenneth Gelting, Debora McPhee, and Michael Winterbourne.

Findings of Fact

The Court makes the following findings of fact by a preponderance of the evidence unless

otherwise noted. Casella is a waste management company that manages residential, industrial, and

commercial waste materials. Samuel Nicolai was employed by Casella for eleven years as Vice

President of Engineering and Compliance. He managed 9 active landfills and 10 closed facilities.

Biosynthetics are used for lining, separating, and draining landfills, and vary from site to site

due to state requirements and site designs. During Nicolai's time with Casella, there were 70 to 75

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transactions with Solmax relating to the purchase of biosynthetics. During the course of his

employment at Casella, Nicolai met with representatives from Solmax at Casella’s Rutland and

Clifton Park offices, but not on an annual basis.

Casella typically issues Requests for Proposals (“RFPs”) at the end of the year for

construction projects planned for the upcoming year. Nicolai was typically the lead for Casella in

managing procurement, including reviewing the documents, RFPs, and results; he participated in

conversations deciding which companies Casella would award contracts. This yearly process has

been similar for his time employed by the company.

Typically, Casella’s budget was finalized in October or November timeframe, and informed

what projects would be built in the upcoming year. As part of this process, in November, Casella

determined the quantity and materials required for the upcoming projects. Casella then incorporated

that information into the RFP document. Conformance testing was critical to Casella, in order to

understand whether the material meets the standards needed by a particular facility. Samples of the

manufactured material are sent to a laboratory that performs tests to ensure compliance with

Casella’s standards and necessary performance specifications. The only place in the transaction with

a materials vendor in which the conformance testing and specifications are found is the RFP.

It was typical to award multiple sites to a particular vendor. Nicolai reviewed the compiled

summaries of the information and participated in the decision-making process to award the bids.

Casella then sent out the award letters, notifying the vendors that Casella was awarding them the

contract. After the notice of award, Casella’s individual locations would issue purchase orders that

matched the information in the award letter, so that the financial details lined up for each location’s

budget. Nicolai signed off on each purchase order.

In December 2023, Casella sent an RFP to Michael Winterbourne at Solmax. See Hearing

Exhibit 1 at 1 (“Exh. 1”). The RFP was for projects at 6 facilities in 4 different states, for

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geosynthetic membrane liner and clay liner. The RFP contained several attachments. Attachment 2

includes the bid forms, which require the bidder to fill in the quantity and pricing. Attachment 3

includes general material requirements. Attachments 4–7 include specifications for materials at the

individual sites. Attachment 8 “provides the terms and conditions of the standard Casella Coupa

Purchase Order that will govern the invoicing and payment process for the selected vendors(s).”

Exh. 1 at 2. The RFP states that “[f]or Bid submittal, only pricing, material cut sheets and a

certification of compliance with the respective material specifications is required,” although it

permits bidders to provide “supplemental information.” Id. Specifically, the RFP requires that “[a]

responsive Bid will consist of the Bidder’s material cost as provided on the submitted Bid Form

(Attachment 2), cut sheets for each proposed material, and a certification of compliance that the

properties of the Bidder’s proposed material(s) meet or exceed the detailed technical specifications

(as presented in Attachments 4 - 7).” Id. The RFP describes that selected vendors will receive a

Notice of Award along with a request to submit technical support information, and that following

the receipt of that information, Casella will issue a site-specific Purchase Order. Id. at 2. Finally,

before any actual deliveries, the vendor must submit acceptable conformance testing data. Id.

The RFP contains miscellaneous, specific requirements:
Vendors shall supply one (1) bag of zip ties (minimum 1,000 ties per
bag) for every 20,000 square feet of geocomposite delivered to a
given landfill site. Each geocomposite roll delivered shall be equipped
with appropriate lifting straps (2 per roll) for safe/secure unloading.
The cost for these zip ties and lifting straps shall be included in the
per square foot unit price for delivered geocomposites.
Vendors shall supply one (1) spool of 5mm welding rod spools
(minimum 15-pound spool) for every roll of geomembrane delivered
to a given landfill site. Each geomembrane roll delivered shall be
equipped with appropriate lifting straps (2 per roll) for safe/secure
unloading. The cost for these spools and straps shall be included in
the per square foot unit price for delivered geomembrane.
Vendors shall supply one (1) bag of bentonite (minimum 50-pound
bag) for each roll of GCL delivered to a given landfill site. Each roll
of GCL shall be equipped with appropriate lifting straps (2 per roll)
for safe/secure unloading. The cost for these bags and straps shall be
included in the per square foot unit price for delivered GCL.

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Exh. 1 at 3.
Attachment 8 of the RFP includes Casella’s terms and conditions. In pertinent part, the

terms and conditions provide as follows:

1. These terms and conditions of purchase (these “Terms”) are the
only terms which govern the purchase of goods (“Goods”) and
services (“Services”) by Casella Waste Systems, Inc., its subsidiaries
and affiliates (“Buyer”) from the seller named above (“Seller”).
Notwithstanding anything herein to the contrary, if a written contract
signed by both parties is in existence covering the sale of the Goods
and Services covered hereby, these Terms shall prevail in the event of
an inconsistency or omission, unless it specifically acknowledged
otherwise in the written contract or as provided in Section 28. The
purchase order printed above (the “Purchase Order”), and these
Terms (collectively, this “Agreement”) comprise the entire
agreement between the parties, and supersedes all prior or
contemporaneous understandings, agreements, negotiations,
representations and warranties, and communications, both written
and oral. These Terms prevail over any of Seller’s general terms and
conditions of sale regardless whether or when Seller has submitted its
sales confirmation or such terms. This Agreement expressly limits
Seller’s acceptance to the terms of this Agreement. Fulfillment of this
Purchase Order constitutes acceptance of these Terms.

Exh. 1 at 230.
23. Governing Law. All matters arising out of or relating to this
Agreement are governed by and construed in accordance with the
internal laws of the State of Vermont without giving effect to any
choice or conflict of law provision or rule whether of the State of
Vermont or any other jurisdiction that would cause the application of
the laws of any jurisdiction other than those of the State of Vermont.
24. Submission to Jurisdiction. Any legal suit, action or proceeding
arising out of or relating to this Agreement shall be instituted in the
federal courts of the United States of America or the courts of the
State of Vermont in each case located in State of Vermont and each
party irrevocably submits to the exclusive jurisdiction of such courts
in any such suit, action or proceeding.

Exh. 1 at 235.
On January 15, 2024, Winterbourne sent Casella an email with Solmax’s completed bid form

attached. Hearing Exh. 2 (“Exh. 2”) at 1. He noted that he would also send separate emails per site

with the Solmax “quotes” and cut sheets. Id. The bid email did not include any terms and

conditions.

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The same day, Winterbourne sent by separate email the Solmax “quote” for the McKean site

in Kane, Pennsylvania. Hearing Exh. 3 (“Exh. 3”) at 1. The attachments included technical data

sheets, a “quotation” on Solmax letterhead mirroring the quantities and prices from the bid sheet,

exception notes per product, and finally, Solmax’s Terms and Conditions. Those terms and

conditions provide, in pertinent part, as follows:

1. COMPLETE AGREEMENT: These Seller's Terms and
Conditions (“T&C”) are attached to and an integral part of the
Quotation for the sale/purchase of products to Buyer (the
“Product”’) for the project referenced therein (the “Quotation”)
between the Seller (named in the Quotation) and the Buyer (named in
the Quotation). Such Quotation shall be binding between the parties
upon the Seller’s receipt and acceptance of the Buyer’s written
purchase order, order, acceptance, confirmation or acknowledgment
(herein the “PO”), it being understood that any PO submitted by the
Buyer shall be deemed to reflect, acknowledge, refer to or accept the
terms and conditions contained in the Quotation. The Quotation,
these T&C (including all exhibits relating thereto), the Credit
Approval (as herein defined), the PO (excluding any terms and
conditions different from or additional to those contained in the
Quotation, these T&C and the Credit Approval) and the sales order
represent the complete agreement between the parties (the
“Contract”) and no terms or conditions made by the Buyer verbally,
in the PO or otherwise in any way adding to, modifying or otherwise
changing the provisions stated in the Quotation, the T&C and the
Credit Approval shall be binding upon the Seller.

In no way shall the Seller be required to accept a PO by signing the
said PO, whether electronically or manually after Buyer has accepted
the Quotation and issued its PO. Notwithstanding the foregoing and
in the event, Seller signs a PO, Buyer confirms and acknowledges
that the signing of the PO, whether electronically or manually, is not
intended and does not constitute consent or agreement in any way to
vary the Contract, which shall remain in full force and effect and
unamended. Seller does not agree, does not accept and herein rejects
any of Buyer’s terms and conditions appearing in any PO or separate
agreement whether signed by both parties or not, whether appearing
online or on a webpage, which may vary, alter, conflict with, add to,
or otherwise change the Quotation, the T&C and the Credit
Approval. The Contract supersedes all prior agreements,
understandings, writings, proposals, representations and
communications, oral or written, of either party with respect to the

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subject matter hereof and the transactions contemplated hereby. No
amendment of any provision of this Contract shall be valid unless
made in writing and signed by both parties specifically referencing the
portion of the Contract being amended.
Exh. 3 at 7.

12. GOVERNING LAW AND ARBITRATION: The Contract
shall in all respects be governed by and construed according to the
laws of the Province of Quebec, Canada, including the Quebec Act
respecting the United Nations Convention on Contracts for the
International Sale of Goods (CQLR, c. C-67.01), despite any
applicable conflict of law provisions.
Notwithstanding the foregoing, this Contract and any dispute
involving a Seller that is a legal entity incorporated in the United
States of America shall be governed by and construed according to
the laws of the State of Texas without regard to its conflict of law
provisions.
All disputes, controversies or claims arising out of or relating to the
Contract, or the breach thereof, shall be finally settled by arbitration
administered either by:
a. the American Arbitration Association (“AAA”) in accordance with
its Commercial Arbitration Rules;
b. the International Centre for Dispute Resolution Canada (“ICDR
Canada’) in accordance with its Canadian Arbitration Rules; or,
c. by the /International Centre for Dispute Resolution (“ICDR’”) in
accordance with its International Arbitration Rules; depending on
whether it is an American domestic dispute, a Canadian domestic
dispute or an International dispute as decided by the AAA, ICDR
Canada or ICDR unless the parties agree otherwise.

In the case of an American domestic dispute, the place of the
arbitration administered by the AAA will be in Harris County, State
of Texas and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. For greater
clarity, the parties hereby consent to personal jurisdiction in said
county and further consent not to assert any venue claims based
upon forum non conveniens.
Exh. 3 at 9.

Winterbourne sent another email on January 15, 2024 including the Solmax quote for the

Ontario County site in Stanley, New York. Hearing Exh. 4 (“Exh. 4”) at 1. Attachments to that

email included a technical data sheet, a quotation again mirroring the quantity and price information

from the bid sheet, notes on exceptions by product, and again, the Solmax Terms and Conditions.

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Casella sent Solmax a Notice of Award on February 9, 2024, listing materials, quantities, and

prices for multiple sites, including the McKean and Ontario County Landfills, and noting that it

would soon issue site-specific purchase orders. Hearing Exh. 5 (“Exh. 5”) at 1. Casella then sent

purchase orders for the individual sites. The purchase orders for McKean and Ontario County did

not include Casella Terms and Conditions. Hearing Exhs. 6–8. Other purchase orders that Casella

issued to Solmax at that time (for a site in Maine) included the Casella terms and conditions.

Solmax then sent Sales Orders confirming the materials, quantities, and prices for the

McKean site. See Hearing Exhs. Z, AA, and BB (“Exh. Z,” etc.). Those Sales Orders included the

Solmax Terms and Conditions. Id.

Solmax sent an updated “quotation” on February 16, 2024, correcting a $0.003 pricing error.

Like the previous quotations, it included the Solmax terms and conditions. Hearing Exh. V (“Exh.

V”). On February 29, 2024, Solmax asked Casella to confirm the pricing and quantity, which Casella

confirmed. Exh. 11 at 5.

Kenneth Gelting started working for Casella in 2022 and retired in March 2024. He was the

Senior Engineer involved in procuring geosynthetics for Casella sites. Gelting generated the RFP

and ran it by Nicolai before sending it out to vendors. He would typically receive 8 to 12 bids.

Gelting would review the bids to evaluate whether they were conforming bids, if they met the RFP

requirements, if they were signed, and if they were complete. Terms and Conditions were not an

item that the RFP requested that bidders submit; accordingly, Gelting did not review the Solmax

terms and conditions. He sent the purchase orders to Solmax. Gelting never reviewed Solmax’s

Terms and Conditions, nor was he aware of any discussion of them at Casella.

When sending the purchase orders to Solmax, Gelting reviewed them for quantities and

prices. Gelting was accustomed to seeing Casellas terms and conditions attached to purchase orders

as exemplified by Hearing Exhibit 13.

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Debora McPhee has been the Home Office Controller at Casella for 4 years. She is involved

in creating purchase orders that are sent to vendors. Casella uses 2 systems, NetSuite and Coupa, to

generate purchase orders. When Casella uses Coupa, every purchase order automatically includes

Casella’s terms and conditions. Prior to 2021, Casella only used NetSuite to create purchase orders.

McPhee can access all purchase orders that Casella has send out. She examined the purchase orders

sent to Solmax in both systems. Since Casella began using Coupa, 26 purchase orders to Solmax

were created in Coupa, while 10 were created in NetSuite. NetSuite does not automatically add

terms and conditions. The purchase orders at issue in this case were generated by NetSuite.

Michael Winterbourne is a sales representative for Solmax, and has worked on orders from

Casella for the past 21 years. To his knowledge, Solmax and Casella have never litigated any

disputes. He is accustomed to sending a separate quote in addition to bids so that he can list

exceptions and include the Solmax terms and conditions. After he received the Casella Notice of

Award and purchase orders, he generated sales orders. The sales orders automatically included the

Solmax terms and conditions. After confirmation, Solmax was cleared for production, and releases

samples for third-party conformance testing. Assuming compliance with Casella’s standards and

specifications, after the testing, the order is shipped.

Discussion
“[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration

any dispute which he has not agreed so to submit.” AT & T Techs., Inc. v. Commc’ns Workers of Am.,

475 U.S. 643, 648 (1986) (citation omitted). The question of whether the parties are bound by an

agreement to resolve a particular dispute through arbitration is generally for a court of law to decide,

particularly when there is a question of contract formation. See, e.g., Granite Rock Co. v. Int’l Bhd. of

Teamsters, 561 U.S. 287, 296 (2010). The Vermont Arbitration Act authorizes the court to stay

arbitration to resolve disputes as to whether there is an enforceable agreement to arbitrate. The Act

provides as follows:

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On application to compel or stay arbitration, and on a showing that
there is no agreement to arbitrate, the court may stay a commenced
or threatened arbitration proceeding. When in substantial and bona
fide dispute, the issue of whether there is an agreement to arbitrate
shall be forthwith and summarily tried. The court shall order the stay
if it finds no enforceable agreement to arbitrate. Otherwise, the court
shall order the parties to proceed to arbitration.

12 V.S.A. § 5674(b). Casella argues that it is not bound by an agreement to arbitrate its dispute with

Solmax, and requests that the Court stay the arbitration proceedings that have commenced in Texas.

The dispute involves “a contract evidencing a transaction involving commerce,” and

accordingly, the Federal Arbitration Act (“FAA”) requires that written agreements to arbitrate be

valid and enforceable “save upon such grounds as exist at law or in equity for the revocation of any

contract.” 9 U.S.C. § 2. “When deciding whether the parties agreed to arbitrate a certain matter

(including arbitrability), courts generally . . . should apply ordinary state-law principles that govern

the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

It is undisputed that the parties had an agreement for the purchase and sale of geosynthetic

clay liner. The agreement, however, is not found in a single document, but rather, was formed

during a series of communications. At issue is whether Casella’s terms and conditions, or Solmax’s

terms and conditions, became an enforceable part of the overall agreement.

The parties agree that the question of whether Solmax’s terms and conditions apply to the

parties’ deal, in particular the arbitration provision within its terms and conditions, is to be resolved

by application of the Uniform Commercial Code (“UCC”). See Bourdeau Bros. v. Boissonneault Fam.

Farm, Inc., 2020 VT 35, ¶ 8, 212 Vt. 231 (“For purposes of the UCC, a merchant is defined in

relevant part as ‘a person who deals in goods of the kind or otherwise by his or her occupation holds

himself or herself out as having knowledge or skill peculiar to the practices or goods involved in the

transaction.’ ”) (citing 9A V.S.A. § 2-104(1)).

UCC § 2-207, Vermont’s 9A V.S.A. § 2-207, supplanted the common law rule that an

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acceptance of an offer that differs from the original offer by including additional terms or conditions

is not treated as an acceptance, but rather, as a counteroffer. See 2 Williston on Contracts § 6:17

(4th) (“The common-law rule that if the offeree’s response to an offer qualified the offer, such as by

adding to it or differing from it, no acceptance took place and a rejection resulted, sometimes

referred to as the ‘mirror image rule,’ had the virtue of maintaining the offeror as the master of the

offer and providing for certain resolution of conflict.”); 1 White, Summers, & Hillman, Uniform

Commercial Code § 2:13 (6th) (“Section 2-207 rejects the common-law mirror-image rule and

converts many common-law counteroffers into acceptances under § 2-207(1).”). 9A V.S.A.§ 2-207

provides the following:

(1) A definite and seasonable expression of acceptance or a written
confirmation which is sent within a reasonable time operates as an
acceptance even though it states terms additional to or different from
those offered or agreed upon, unless acceptance is expressly made
conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition
to the contract. Between merchants such terms become part of the
contract unless:
(a) the offer expressly limits acceptance to the terms of the
offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or
is given within a reasonable time after notice of them is
received.
(3) Conduct by both parties which recognizes the existence of a
contract is sufficient to establish a contract for sale although the
writings of the parties do not otherwise establish a contract. In such
case the terms of the particular contract consist of those terms on
which the writings of the parties agree, together with any
supplementary terms incorporated under any other provisions of this
title.

As one treatise noted, “[a]fter decades of experience with the section, the only thing clear about the

section is that it is inherently unclear; this, partly because of its awkward phrasing, partly because of

the numerous situations it was designed to address and the many more it has been used to address,

and partly because of a judicial reluctance to apply the statute too literally.” 2 Williston on Contracts

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§ 6:17 (4th) (footnotes omitted). The crux of the parties’ dispute is when an “offer” was made, such

that subsequent additional or different terms are treated in accordance with section 2-207(2).

Solmax argues that the only points at which a contract formed all include Solmax’s terms

and conditions, and thus, its arbitration provision survives analysis under section 2-207. According

to Solmax, the RFP was not an offer, but rather, was an invitation to deal, as it makes clear that

Casella would only issue purchase orders after determining with which bid it would proceed. See

Compass Auto. Grp., LLC v. Denso Mfg. Tennessee, Inc., No. 12-10919, 2013 WL 655112, at *3 (E.D.

Mich. Feb. 22, 2013) (RFQ was “invitation to deal”). Indeed, “[a] sufficiently detailed price

quotation can be an offer.” ETC Intrastate Procurement Co., LLC v. JSW Steel (USA), Inc., 620 S.W.3d

168, 174 (Tex. App. 2021). Similarly, “some price quotes are sufficiently detailed to be deemed

offers, which turns a subsequent document from a buyer containing a positive response into an

acceptance.” Reilly Foam Corp. v. Rubbermaid Corp., 206 F. Supp. 2d 643, 650 (E.D. Pa. 2002). Relying

on Compass Auto, ETC Intrastate Procurement, and Reilly Foam, Solmax contends that its quotation

contained sufficient detail to be considered to be an offer.

The question of whether the quotation can be construed as the offer, and the purchase order

as the acceptance, is significant for analysis under section 2-207. The quotation contained Solmax’s

terms and conditions, including the arbitration provision. The purchase orders were silent on the

question of choice of forum and arbitration because for these two sites, Casella failed to include its

terms and conditions in the purchase order. If those assumptions are correct, then there is no

“additional term” or contradictory “different term” in the acceptance, and the arbitration provision

becomes an enforceable part of the agreement. See U.S. for Use & Benefit of Control Sys., Inc. v. Arundel

Corp., 814 F.2d 193, 198 (5th Cir.), decision clarified on denial of reh’g, 826 F.2d 298, n.7 (5th Cir. 1987).

Solmax’s argument misses the point. In the very cases that it cites in support of its position,

the court held that “[a]n offer is an act that leads the offeree reasonably to believe that assent will

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conclude the deal.” ETC Intrastate Procurement Co., LLC, 620 S.W.3d at 174; see also Reilly Foam Corp.

v. Rubbermaid Corp., 206 F. Supp. 2d at 651. (“As is the case with a purported offer under the

common law, the seller must intend that the contract exist upon acceptance of the offer; that is, it

must reasonably appear from the price quotation that assent to that quotation is all that is needed to

ripen the offer into a contract.”) (quotation omitted). Such would be the case if the quotation

contained only the required elements of the bid, namely the quantities and prices, and the technical

specifications to conform with the RFP’s requirements. Instead, Solmax added terms and

conditions to the quotation, which underscore that a purchase order does not conclude the deal until

Solmax accepts the purchase order, so the situation here differs materially from that in Compass Auto

and ETC Intrastate Procurement. The Court cannot agree that under these circumstances the

quotation, with the Solmax terms and conditions, constituted an offer, because under its own terms,

a Casella purchase order in response would still require further acceptance from Solmax. It was an

offer to make an offer. See Restatement (2d) of Contracts § 26 (1981) (“A manifestation of

willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has

reason to know that the person making it does not intend to conclude a bargain until he has made a

further manifestation of assent.”). The Casella purchase order was the offer, which Solmax accepted

through its sales order. See SEC Am., LLC v. Marine Elec. Sys., Inc., 2011 VT 125, ¶ 8, 191 Vt. 541

(“[T]he submission of a purchase order is generally considered to be an offer to purchase which the

seller may then accept or reject.”) (citing L.V. Appleby, Inc. v. Griffes, 160 Vt. 601, 602 (1993) (mem.)

(holding that “[s]ubmission of the purchase order ... was an offer to purchase”)). The Solmax

accepted added an additional term requiring arbitration.

Solmax contends that the price correction could also be construed to be an all-new offer,

which also included the Solmax terms and conditions. However, this was clearly considered to be a

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post-deal correction of a minor error, and Casella’s acceptance of the corrected term is not an

entirely new agreement.

Solmax argues in the alternative, that if the purchase order was the offer, Solmax’s inclusion

of its terms and conditions, and thus its arbitration provision, in the sales order resulted in it being

included in the agreement as an additional term that does not fall into any of the exceptions in

section 2-207(2). Casella responds that the arbitration term is a material alteration under section 2-

207(2)(b), and thus does not become part of the contract.

“[M]ost courts agree that an additional term is a material alteration if it would result in

unreasonable surprise or hardship if incorporated without the buyer’s express awareness.” Bourdeau

Bros. v. Boissonneault Fam. Farm, Inc., 2020 VT 35, ¶ 11, 212 Vt. 231 (collecting cases). “[T]he test for

a material alteration under 9A V.S.A. § 2-207 is whether the additional term would result in surprise

or hardship to the nonassenting party.” Id. Casella’s argument is that the incorporation of the

arbitration term would result in surprise. “[W]hether an additional term in a written confirmation

constitutes a ‘material alteration’ is a question of fact to be resolved by the circumstances of each

particular case.” Id. (quoting N & D Fashions, Inc. v. DHJ Indus., Inc., 548 F.2d 722, 726 (8th Cir.

1976). “[R]elevant factors to the materiality determination may include the prior course of dealing

between the parties, the number of written confirmations provided by plaintiff, and whether the

term reflects industry custom.” Bourdeau Bros., 2020 VT 35, ¶ 13. “[T]he materiality of an alteration

depends largely on the subjective, and objectively reasonable, expectations of the parties in the

context of a particular transaction or business relationship.” Id. (citing Ebasco Servs. Inc. v. Pa. Power

& Light Co., 402 F. Supp. 421, 442-43 (E.D. Pa. 1975) (explaining Official Comment 4 “indicates to

us that the materiality of a change is to be judged in large part by the expectations of the parties

involved in the transaction,” which “is a determination uniquely within the province of a fact

finder”)).

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Casella’s agents involved in the transaction with Solmax never discussed any arbitration

provision, and they disregarded the terms and conditions attached to Solmax’s quotation and sales

orders. Casella included sophisticated terms and conditions in its RFP, which additionally indicated

that those terms and conditions were to be included with purchase orders. The RFP announced

Casella’s intention to include its terms and conditions with its purchase orders and through the

language of those terms, to exclude the enforceability of any additional or different terms introduced

by the other party in its dealings. Those terms, included in the RFP, also clearly indicate that Casella

intended that the parties it conducted business with would take conflicts to Vermont courts or

federal courts in Vermont. Casella implemented a system (Coupa) that automatically added those

terms and conditions when it generated purchase orders—and then unintentionally omitted to

manually include the terms and conditions when they used a different, and older, system to generate

the purchase orders in this case. Once Casella implemented Coupa, it generated 36 purchase orders,

of which 26 were generated with Coupa and therefore included the Casella terms and conditions

automatically; ten were generated with NetSuite. The omission of the terms and conditions in the

purchase orders for McKean was an error. The prior course of dealing of the parties shows that

Casella included terms and conditions that effectively prevented Solmax from adding additional or

different terms and conditions.

Because Casella’s terms were written in such a manner that its purchase orders constituted

offers and included its terms and conditions by design, the result reasonably anticipated under

section 2-207 is that either the other side’s terms, presented in confirmations or sales orders, would

not be included, or that the conflicting terms would simply be knocked out. Casella thus amply

proved that it was “subjectively” surprised by the arbitration clause.1 See Avedon Eng'g, Inc. v. Seatex,

1 Nicolai testified that he would not be surprised if another party attempted to include their own terms and conditions,

but that does not change that it would be surprising if those terms actually became part of the deal. See 9A V.S.A. § 2-

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112 F. Supp. 2d 1090, 1095 (D. Colo. 2000) (concluding that there was subjective surprise even

when party ignored multiple copies of the terms in question).

Although Winterbourne testified that he could not generate quotations or sales orders

without the Solmax terms and conditions, he did not testify to having direct knowledge that Casella

actually received the terms and conditions with all of the past quotations and sales orders, or that he

received specific confirmation at any point from Casella that it had received the Solmax terms and

conditions. Even if Casella received those terms during past transactions, “the repeated sending of a

writing which contains certain standard terms, without any action with respect to the issues

addressed by those terms, cannot constitute a course of dealing which would incorporate a term of

the writing otherwise excluded under § 2–207.” Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91,

104 (3d Cir. 1991). There was no prior action that would have indicated to Casella that the Solmax

terms would have ever been enforceable with regard to any of the parties’ prior transactions. The

question is not whether Casella would be surprised that Solmax desired to include its own terms and

conditions in the parties’ agreement, but rather, whether those terms and conditions, even if Solmax

repeatedly attempted to include them, were actually incorporated in the agreement. As stated in

Step-Saver:

First, the repeated exchange of forms by the parties only tells Step–
Saver that TSL desires certain terms. Given TSL’s failure to obtain
Step–Saver's express assent to these terms before it will ship the
program, Step–Saver can reasonably believe that, while TSL desires
certain terms, it has agreed to do business on other terms—those
terms expressly agreed upon by the parties. Thus, even though Step–
Saver would not be surprised to learn that TSL desires the terms of
the box-top license, Step–Saver might well be surprised to learn that
the terms of the box-top license have been incorporated into the
parties’ agreement.

207 cmt. 4 (terms are material alterations if they would result in “surprise or hardship if incorporated without express
awareness by the other party”).

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Step-Saver Data Sys., Inc., 939 F.2d at 104 (emphasis in original). Casella was not surprised that

Solmax wanted to include its own terms but would be surprised if those terms actually became part

of the agreement and if they were enforceable.

Unlike in Avedon where arbitration provisions in particular were commonly included in the

industry in question, it is not as clear in this context, where one party purportedly repeatedly sought

to include Vermont courts as a forum for disputes, and the other purportedly repeatedly sought to

include an arbitration forum in Texas. The parties have never arbitrated or a litigated a dispute with

each other prior to this dispute. Additionally, given the strength of the Casella terms and conditions

in knocking out any terms to the contrary, the manner in which Casella limited the requirements for

complete bids, and the expectation that purchase orders from Casella, as offers, would include the

Casella terms and conditions, it was objectively reasonable for Casella to expect that additional or

conflicting terms submitted by sellers would not become enforceable terms of the agreement. A

reasonable person handling Casella’s side of the transaction would be surprised if any of Solmax’s

terms and conditions were enforceable and would expect that disputes between the parties—if any

ever arose—would be resolved in the forum directed by Casella’s terms and conditions, and thus, in

a court in Vermont, rather than in an arbitral forum in Texas. Under the circumstances here, where

the Casella terms included in the RFP clearly prove that it was Casella’s intention that disputes be

resolved in a court in Vermont under Vermont law, “it cannot be presumed that a reasonable

merchant would have consented to the additional term.” Coosemans Specialties, Inc. v. Gargiulo, 485

F.3d 701, 708 (2d Cir. 2007).2 The element of objective surprise is met.

2 Casella’s RFP also limits the contents of a completed bid to several simple elements, including price and data. While it
indicates that bidders may submit additional information, it is clear from the Casella terms and conditions that Casella
wished to exclude additional or different terms from its deals, and that it wanted its own terms and conditions to apply
to the deals. Thus, allowing submission of additional information was clearly not an invitation for bidders to include
additional or different terms and conditions.

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Casella has met its burden to prove objective and subjective surprise in the specific

circumstances of the transactions at issue in this case. Thus, under section 2-207(2)(b), the

arbitration provision of the Solmax terms and condition is not part of the parties’ agreement.3

Accordingly, the Court finds that there was no enforceable agreement for the parties to arbitrate this

dispute. Solmax cannot compel Casella to arbitrate.

Order

For the reasons discussed above, Casella’s motion to stay arbitration is granted.

Electronically Signed on: Monday, December 15, 2025 pursuant to V.R.E.F. 9(d).

___________________________
Susan A. McManus
Superior Court Judge

3 This ruling does not resolve the question of whether any terms and conditions from Casella’s RFP became enforceable

components of the parties’ agreement.

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