Werman v. Nordstrom, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FERN WERMAN,
Plaintiff,
MEMORANDUM
v. 	AND ORDER
24-CV-8006-SJB-AYS
NORDSTROM, INC., et al.,
Defendants.
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BULSARA, United States District Judge:
After she was fired, Plaintiff Fern Werman filed this action against Nordstrom,
Inc., as well as Fernanda Lizama and Elizabeth Cardona, Werman’s former managers,
(together, “Defendants”), alleging that Defendants violated various federal and state
laws, including Title VII of the Civil Rights Act of 1964, § 1981 of the Civil Rights Act of
1866, the Age Discrimination in Employment Act (“ADEA”), and the New York State
Human Rights Law (“NYSHRL”). Werman alleges that Defendants discriminated
against her and promoted a discriminatory and hostile work environment. (Compl.
dated Nov. 18, 2024, Dkt. No. 1 ¶¶ 41–75). Defendants have moved to compel
arbitration, (Defs.’ Mot. to Compel Arb. (“Defs.’ Mot. to Compel”) dated Jan. 31, 2025,
Dkt. No. 21-1), pursuant to the terms of a 2022 arbitration agreement, which Werman
opposes, (Pl.’s Opp’n to Defs.’ Mot. to Compel Arb. dated Mar. 3, 2025 (“Pl.’s Opp’n”),
Dkt. No. 21-7). For the reasons explained below, the motion is granted.
DISCUSSION
“[T]he Federal Arbitration Act (the ‘FAA’) creates a ‘body of federal substantive
law of arbitrability’ applicable to arbitration agreements[.]” All. Bernstein Inv. Rsch. &
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Mgmt., Inc. v. Schaffran, 445 F.3d 121, 125 (2d Cir. 2006) (quoting Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). “[B]ecause the FAA puts
arbitration clauses ‘on an equal footing with other contracts,’” Certain Underwriters at
Lloyds, London v. 3131 Veterans Blvd LLC, 136 F.4th 404, 409 (2d Cir. 2025) (quoting
Coinbase, Inc. v. Suski, 602 U.S. 143, 148 (2024)), an arbitration provision “shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2; see also Viking River Cruises, Inc. v. Moriana, 596
U.S. 639, 650 (2022) (explaining that Section 2 “renders agreements to arbitrate
enforceable as a matter of federal law”); Hartford Accident & Indem. Co. v. Swiss
Reinsurance Am. Corp., 246 F.3d 219, 226 (2d Cir. 2001) (noting that Section 2 reflects “a
strong federal policy favoring arbitration as an alternative means of dispute
resolution”).
I. 	Agreement to Arbitrate
“Arbitration is a matter of contract and consent, and . . . disputes are subject to
arbitration if, and only if, the parties actually agreed to arbitrate those disputes.”
Coinbase, 602 U.S. at 145. “Questions concerning the formation and existence of an
arbitration agreement must be resolved by courts in the first instance.” Olin Holdings
Ltd. v. State, 73 F.4th 92, 101 (2d Cir. 2023). Therefore, “parties may not delegate to the
arbitrator the fundamental question of whether they formed the agreement to arbitrate
in the first place.” Doctor’s Assocs., Inc. v. Alemayehu, 934 F.3d 245, 251 (2d Cir. 2019)
(citing Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 299–301 (2010)).
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“To determine whether parties agreed to arbitrate,” the Court must “consider all
relevant, admissible evidence submitted by the parties,” drawing “all reasonable
inferences in favor of the non-moving party”—a standard akin to summary judgment.
Davitashvili v. Grubhub Inc., 131 F.4th 109, 115 (2d Cir. 2025) (quotations omitted). The
party seeking to arbitrate bears the burden on this threshold issue. Id. “If the party
seeking arbitration has substantiated the entitlement by a showing of evidentiary facts,
the party opposing may not rest on a denial but must submit evidentiary facts showing
that there is a dispute of fact to be tried.” Oppenheimer & Co. v. Neidhardt, 56 F.3d 352,
358 (2d Cir. 1995).
“The threshold question of whether the parties indeed agreed to arbitrate is
determined by state contract law principles.” Nicosia v. Amazon.com, Inc., 834 F.3d 220,
229 (2d Cir. 2016).1 New York law requires a “meeting of the minds” and a
“manifestation of mutual assent” to form a binding contract. Starke v. SquareTrade, Inc.,
913 F.3d 279, 288–89 (2d Cir. 2019) (quoting Express Indus. & Terminal Corp. v. N.Y. Dep’t
1 Here, the relevant agreement Defendants wish to enforce does not contain a
choice of law provision, nor do the parties address what law governs. But both parties
proceed as though the agreement is governed by New York law. (See Pl.’s Opp’n at 1–3;
Defs.’ Mot. to Compel at 7–10; Pl.’s Suppl. Mem. in Opp’n to Mot. to Compel Arb. dated
July 3, 2025, Dkt. No. 22 at 2). And this election resolves the choice of law issue—the
Court applies New York law to interpret the contract. See Martinez v. Bloomberg LP, 740
F.3d 211, 223 (2d Cir. 2014) (“[P]arties by their acquiescence . . . may induce the trial
court to assume that foreign law is similar to that of the forum, with the result that a
court does not err when it articulates its decision by reference to the law of the forum.”
(quotations omitted)); e.g., Blodgett v. Siemens Indus., Inc., No. 13-CV-3194, 2018 WL
385477, at *5 (E.D.N.Y. Jan. 11, 2018) (“Plaintiffs’ . . . citation solely to New York law in
support of their . . . claims in their prior submissions is deemed by this Court to
constitute an implied consent to use New York law, which settles the choice of law issue
in favor of the application of New York law.”).
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of Transp., 93 N.Y. 2d 584, 589 (1999)). Importantly, mutual assent does not require
actual notice, because inquiry notice is sufficient: “[u]nder New York law, when an
offeree does not have actual notice of certain contract terms, he is nevertheless bound by
such terms if he is on inquiry notice of them and assents to them through conduct that a
reasonable person would understand to constitute assent.” Davitashvili, 131 F.4th at
115–16 (quotations omitted); see also Meyer v. Uber Techs., Inc., 868 F.3d 66, 74–75 (2d Cir.
2017) (applying California law and noting even absent “actual notice of the terms of the
agreement, the offeree will still be bound by the agreement if a reasonably prudent user
would be on inquiry notice of the terms”); Wu v. Uber Techs., Inc., 43 N.Y.3d 288, 299
(2024) (“[T]here is no requirement that a party have correctly understood—or even
reviewed—the terms presented by the offeror for their manifestation of acceptance to be
effective. Instead, courts ask whether the offeree was put on inquiry notice of the
contractual terms.”). To determine whether an offeree has inquiry notice of a
contractual term, “New York courts evaluate whether the term was obvious and
whether it was called to the offeree’s attention—an analysis that often turns on whether
the contract terms were presented to the offeree in a clear and conspicuous way.”
Davitashvili, 131 F.4th at 116 (quotations omitted).
Nordstrom hired Werman as a salesperson on July 30, 2013, and Werman
continued to work in that capacity until she was terminated on September 26, 2023.
(Compl. ¶¶ 17–19; Decl. of Justin Fischbeck dated Jan. 13, 2025 (“Fischbeck Decl.”), Dkt.
No. 21-2 ¶ 7). Nordstrom contends that Werman signed and executed a binding
Dispute Resolution Agreement (the “2012 DRA”) when she was hired that provided
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that Nordstrom and Werman would resolve certain employment-related disputes in
arbitration. (Fischbeck Decl. ¶¶ 4, 10–12). In December 2022, Nordstrom amended the
DRA. (Id. ¶ 16). Nordstrom sent notice of the amended DRA, (the “2022 DRA”), to all
Nordstrom employees at their work and personal email addresses on December 15,
2022, uploaded the 2022 DRA to Werman’s Workday account on December 13, 2022,
and posted the 2022 DRA on Nordstrom’s intranet site in December 2022. (Id. ¶¶ 17–19).
The 2022 DRA, like the 2012 DRA, provides that certain disputes are subject to
arbitration. The 2022 DRA states in relevant part:
You and Nordstrom hereby knowingly agree that legal claims and
disputes covered by this Agreement will only be resolved in final and
binding arbitration (and not by way of a court or jury trial) . . . .
. . . Except as provided otherwise, this Agreement applies mutually to any
legal disputes arising out of or related to your application for employment
with Nordstrom, your employment with Nordstrom, or the termination of
your employment with Nordstrom (“Covered Disputes”). This
Agreement applies to any Covered Disputes that Nordstrom may have
against you or you may have against: (1) Nordstrom or one of its affiliates,
subsidiaries, or parent companies (“Nordstrom”); (2) Nordstrom’s
officers, directors, principals, shareholders, members, owners, employees,
or agents . . . .
. . . Covered Disputes include, but are not limited to, claims arising under
the Uniform Trade Secrets Act, the Fair Credit Reporting Act, the Civil
Rights Act of 1964, 42 U.S.C. § 1981, the Rehabilitation Act, the Civil
Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, the Pregnancy
Discrimination Act, the Equal Pay Act, the Americans With Disabilities
Act, the Age Discrimination in Employment Act (including the Older
Workers Benefit Protection Act), the Family Medical Leave Act, the Fair
Labor Standards Act, Affordable Care Act, the Genetic Information Non-
Discrimination Act, the Occupational Safety and Health Administration
Act, the Uniformed Services Employment and Reemployment Rights Act,
the Worker Adjustment and Retraining Notification Act, Employee
Retirement Income Security Act (“ERISA”) for breach of fiduciary duty or
for penalties based on allegations that any Nordstrom benefit plan violates
the requirements of ERISA, claims arising under sections 601-607 of
ERISA (relating to continuation coverage under group health plans), or
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other claimed violations of ERISA (including but not limited to claims
under section 510 of ERISA, even if such claims are combined with a claim
for employee benefits), and other state and local statutes or regulations
addressing the same or similar subject matters, and all other federal or
state legal claims, regardless of when the dispute arises.
(2022 DRA, attached to Fischbeck Decl. as Ex. B, Dkt. No. 21-4 at 3). The only material
difference relevant here between the 2012 DRA and the 2022 DRA is the scope of the
delegation clause. While the 2012 DRA provides that “disputes regarding the
enforceability, revocability or validity of the Agreement or any portion of the
Agreement . . . can be resolved only by a court of competent jurisdiction,” (2012 DRA,
attached to Fischbeck Decl. as Ex. A, Dkt. No. 21-3 at 2), the 2022 DRA provides
“disputes relating to the validity, applicability, enforceability, unconscionability or
waiver of this Agreement, including but not limited to any claim that all or any part of
this Agreement is void or voidable, are Covered Disputes and shall be decided by the
arbitrator,” (2022 DRA at 3–4).
The notice Nordstrom provided of the 2022 DRA, through multiple channels,
clearly and conspicuously called attention to its arbitration terms. (Email dated Dec. 15,
2022, attached to Fischbeck Decl. as Ex. C, Dkt. No. 21-5 at 6). Under the capitalized
header “KEY POLICY UPDATES,” the email identified in bold lettering “Important
Dispute Resolution Program Updates (U.S. Only).” (Id.). Under this subheading, the
email said: “We have recently made important updates to our Dispute Resolution
program and encourage you to take time to review them carefully.” (Id.) And the email
included a hyperlink to material titled “Dispute Resolution Program: 2022 Update,”
which included a copy of the 2022 DRA. (Id.; Fischbeck Decl. ¶ 19). And in addition to
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the email, Nordstrom uploaded the 2022 DRA to Werman’s Workday account in the
same location as other her other employment documents (e.g., wage notices) and
separately posted it on the Nordstrom intranet site, which employees use to access
other important resources relating to their employment. (Fischbeck Decl. ¶¶ 17–18).
Based on this distribution, Nordstrom contends that Werman had inquiry notice
of the 2022 DRA, and that her continued employment with Nordstrom manifested her
assent to the terms of the agreement. (Defs.’ Suppl. Mem. in Supp. of Mot. to Compel
Arb. dated July 9, 2025 (“Defs.’ Suppl. Mem.”), Dkt. No. 23 at 4–6). The Court agrees.
The multiple forms of notice given by Nordstrom were sufficient to put a
reasonably prudent person on inquiry notice. Werman contends she received “no
notice whatsoever” of either DRA, and therefore no agreement to arbitrate was formed.
(Pl.’s Suppl. Mem. in Opp’n to Mot. to Compel Arb. dated July 3, 2025, Dkt. No. 22 at 2–
3). She claims she does not use computers, and she never accessed her work email or
her Workday account, and therefore could not have received the 2022 DRA. (Decl. of
Fern Werman dated Mar. 3, 2025 (“Werman Decl.”), Dkt. No. 21-8 ¶¶ 5, 9–10). But
Werman does not dispute Nordstrom’s notices were sent to the identified work and
personal email addresses, or that the email addresses Nordstrom sent the notices to,
including a personal email address, belonged to her. Nor does Werman contest that
Nordstrom posted the notice to her Workday account or to the Nordstrom intranet.
Werman’s claim of not using computers—without refuting Nordstrom’s sending of the
notice or the delivery to the email accounts—amounts to an assertion of not reading the
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notices. That cannot avoid inquiry notice of the contract terms.2 See, e.g., Meyer, 868
F.3d at 79 (“As long as the hyperlinked text was itself reasonably conspicuous . . . a
reasonably prudent smartphone user would have constructive notice of the terms.
While it may be the case that many users will not bother reading the additional terms,
that is the choice the user makes; the user is still on inquiry notice.”); Plazza v. Airbnb,
Inc., 289 F. Supp. 3d 537, 550 (S.D.N.Y. 2018) (“Plaintiffs both acknowledge receiving
emails with ‘notices that Airbnb had updated its Terms of Service.’. . . The fact that
Plaintiffs failed to actually read the TOS on those occasions, or on any other occasion,
does not help them.” (citations omitted)); Coe v. Coca-Cola Co., 702 F. Supp. 3d 140, 156–
57 (W.D.N.Y. 2023) (“Whether [Plaintiff] actually clicked the hyperlink and read the
Terms of Use before agreeing to them is of no moment.”).
In any event, Nordstrom has demonstrated that there is no material issue in
dispute about whether Werman used computers. It provided evidence that Werman’s
Workday account was accessed from mobile and desktop devices 136 times from
November 2018 to August 2023, (Report of Workday Account, attached to Suppl.
Fischbeck Decl. as Ex. C, Dkt. No. 21-13), and that Werman electronically executed other
documents while employed at Nordstrom including as late as February 2020, (see e.g.,
2 In Schnabel v. Trilegiant Corp. the Second Circuit noted that the fact that
“someone has received an email does not without more establish that he or she should
know that the terms disclosed in the email relate to a service in which he or she had
previously enrolled and that a failure to affirmatively opt out of the service amounts to
assent of those terms.” 697 F.3d. 110, 126 (2d. Cir. 2012). But this case presents different
facts than those in Schnabel, where “an unsolicited email from an online consumer
business” was deemed insufficient to put consumers on inquiry notice. Id. at 123.
Werman was an employee of Nordstrom, and the emails Nordstrom sent to her
pertaining to her employment cannot be characterized as unsolicited.
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Ms. Werman’s I-9, attached to Suppl. Fischbeck Decl. as Ex. B, Dkt. No. 21-12;
Nordstrom Commission Agreement & Certificate of Completion, attached to Suppl.
Fischbeck Decl. as Ex. D, Dkt. No. 21-14). Werman’s conclusory denial of computer
use—which cites to no other evidence and is plainly contradicted by all the evidence
submitted by Nordstrom—cannot create a factual dispute on this issue. Guerriero v.
Sony Elecs. Inc., No. 21-CV-2618, 2022 WL 736428, at *2 (S.D.N.Y. Mar. 11, 2022) (“The
party opposing arbitration ‘may not rest on a denial but must submit evidentiary facts
showing that there is a dispute of fact to be tried.’”(quoting Neidhardt, 56 F.3d at 358));
DuBois v. Macy’s E. Inc., 338 F. App’x 32, 33–34 (2d Cir. 2009); e.g., Saleh v. Digital Realty
Tr., Inc., No. 21-CV-9005, 2022 WL 3139733, at * 5 (S.D.N.Y. Aug. 5, 2022) (“[Plaintiff’s]
outright denial, standing alone, would not necessarily be an insufficient basis on which
to deny the motion to compel arbitration. But it must be considered alongside all
relevant admissible evidence, which may refute the denial. [W]here the facts alleged in
a nonmovant’s declaration are so contradictory that doubt is cast upon their
plausibility, then absent other evidence, granting the motion to compel may be
appropriate.” (quotations omitted)).
Werman’s claims that she never read her emails, checked her Workday account,
or checked the Nordstrom intranet, even if true—which they appear not to be—still
would not be enough to avoid inquiry notice. She is held to the standard of a
reasonably prudent person, which is someone who has basic facility with computers,
even if they choose not to exercise that ability. See Wu, 43 N.Y.3d at 303 (“[A] user does
not need to have actually read and understood the terms of an internet contract to be so
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bound; rather, where a reasonably prudent user would have been on inquiry notice of
contractual terms, an offeree may still be bound by them. A reasonably prudent user is
one who is neither highly savvy nor a complete stranger to computers or
smartphones—that is, someone who has general familiarity with how to navigate a
website, use a scroll bar, recognize a hyperlink, and download an application.”
(quotations omitted)); Edmundson v. Klarna, Inc., 85 F.4th 695, 703 (2d Cir. 2023) (“Who is
the reasonably prudent internet or smartphone user? The standard does not require us
to imagine a user who has never before encountered a smartphone app or entered into
an online contract.” (quotations omitted)). And because a reasonably prudent person
would have been able to access the multiple notices that Nordstrom sent, Werman is
deemed to have inquiry notice of the 2022 DRA.
Having concluded that Werman had inquiry notice of the 2022 DRA, the Court
turns to whether Werman’s conduct manifested assent to its terms. The 2022 DRA
provided to employees: “YOU KNOWINGLY ACCEPT AND AGREE TO THE
NORDSTROM DISPUTE RESOLUTION AGREEMENT BY . . . CONTINUING YOUR
EMPLOYMENT WITH NORDSTROM FOR FIVE (5) DAYS AFTER YOU RECEIVE
THIS AGREEMENT.” (2022 DRA at 9). After Nordstrom sent notice of the 2022 DRA
to Werman in December 2022, Werman continued to work for Nordstrom for
approximately nine months until her termination in September 2023. (See Fischbeck
Decl. ¶¶ 7, 17–18; Werman Decl. ¶ 4). This conduct—continuing to work for
Nordstrom—is sufficient basis to conclude, under New York law, that Werman agreed
to the contract terms, including the arbitration provisions. See, e.g., Manigault v. Macy’s
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E., LLC, 318 F. App’x 6, 8 (2d. Cir. 2009) (“Manigault continued to work after receiving
notice of the SIS program. Manigault therefore agreed to arbitration by continuing with
her employment. . . . New York, unlike other jurisdictions, has found that continued
employment, without more, is sufficient to manifest assent.” (citations omitted));
Brown v. St. Paul Travelers Cos., 331 F. App’x 68, 70 (2d Cir. 2009) (finding plaintiff’s
“continued employment after . . . repeated notifications [that she was responsible for
understanding all company employment policies] lends force to the presumption that
she agreed to be bound to the arbitration policy”); Dixon v. NBCUniversal Media, LLC,
947 F. Supp. 2d 390, 400 (S.D.N.Y. 2013) (finding employee manifested assent to
arbitration agreement by continuing to work for employer after the date specified in the
agreement).3 Accordingly, Werman is bound by the terms of the 2022 DRA.
The Court now turns to whether Werman’s claims fall within the scope of the
arbitration clause in the 2022 DRA. Werman’s Complaint asserts a series of
discrimination claims against Defendants. (Compl. ¶¶ 41–75). The factual allegations
that form the basis for these claims relate to a series of 2023 events that culminated in
her termination from Nordstrom. Werman alleges that beginning in May 2023, her
managers, Defendants Lizama and Cardona, began issuing “petty warnings” to her for
minor transgressions to “garner enough disciplinary issues so that her termination
would appear justified.” (Id. ¶ 22). In September 2023, Werman alleges that a coworker
asked her why she was working on a Tuesday, and she responded that she did not
3 Having concluded that Werman had inquiry notice of the 2022 DRA and
manifested assent to be bound by the terms of the 2022 DRA, the Court need not resolve
the parties’ competing allegations about the 2012 DRA.
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work on Monday because she is Jewish and observes Yom Kippur. (Id. ¶ 28). Werman
alleges the coworker then told her “I could care less about your religion,” and Werman
then mumbled an expletive. (Id. ¶¶ 28–29). Following this interaction, on September
26, 2023, Werman was called into the office by Cardona and terminated from her job.
(Id. ¶ 30). Because the 2022 DRA went into effect in December 2022, the 2022 DRA
predates all of Werman’s allegations, and governs all her claims.
Werman’s claims against Defendants are also “Covered Disputes” under the
2022 DRA, and therefore Werman must arbitrate these disputes. The 2022 DRA
requires arbitration of “any legal disputes arising out of or related to your application
for employment with Nordstrom, your employment with Nordstrom, or the
termination of your employment with Nordstrom (‘Covered Disputes’).” (2022 DRA at
3). Each of Werman’s claims arises out of her employment with Nordstrom or her
termination from Nordstrom, and many of Werman’s claims are specifically listed as
“Covered Disputes” in the 2022 DRA. (See id.).
Werman asserts that Defendants violated § 1981 of the Civil Rights Act of 1866
and NYSHRL by discriminating against her based on her ethnicity and religion,
(Compl. ¶¶ 50–54, 68–75), that Nordstrom violated Title VII by discriminating against
her on the basis of race, religion, and national origin and fostering a hostile work
environment, (id. ¶¶ 41–46), and that Nordstrom violated the ADEA by discriminating
against her based on her age, (id. ¶¶ 59–67). All of the federal statutes are specifically
listed in the 2022 DRA’s list of claims that require arbitration. (See 2022 DRA at 3). And
the list of claims also includes “other state and local statutes or regulations addressing
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the same or similar subject matters, and all other federal or state legal claims,”
encompassing Werman’s NYSHRL claim. (Id.).
Therefore, Werman’s claims fall within the scope of the 2022 DRA’s arbitration
clause.4 E.g., Chen-Oster v. Goldman, Sachs & Co., 449 F. Supp. 3d 216, 243 (S.D.N.Y.
2020) (concluding that agreements’ broad arbitration clauses captured “any possible
type of employment-related dispute between the signatories, including claims for
discrimination under Title VII and the NYCHRL”) (collecting cases), objections overruled,
No. 10-CV-6950, 2021 WL 4199912 (Sep. 15, 2021).
II. 	The Delegation Clause
In Rent-A-Center, West, Inc. v. Jackson, the Supreme Court explained that there are
two types of challenges to arbitration agreements: the first type challenges “specifically
the validity of the agreement to arbitrate,” while the second challenges “the contract as
a whole, either on a ground that directly affects the entire agreement (e.g., the
agreement was fraudulently induced), or on the ground that the illegality of one of the
contract’s provisions renders the whole contract invalid.” 561 U.S. 63, 70 (2010)
(quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 (2006)).
This second type of challenge is a question of whether a dispute is arbitrable,
and includes the question of unconscionability. See id. at 68–69, 72 (finding that
4 Werman does not contest that Defendants Lizama and Cardona can invoke the
2022 DRA. Nonetheless, by its terms, the 2022 DRA encompasses Werman’s claims
against Lizama and Cardona because they are “employees” of Nordstrom. (See 2022
DRA at 3 (“This Agreement applies to any Covered Disputes that Nordstrom may have
against you or you may have against: (1) Nordstrom or one of its affiliates, subsidiaries,
or parent companies (‘Nordstrom’); (2) Nordstrom’s officers, directors, principals,
shareholders, members, owners, employees, or agents[.]”)).
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plaintiff’s unconscionability challenge “to the validity of the contract as a whole” was a
“gateway question of arbitrability” properly addressed to the arbitrator based on the
contract’s delegation provision). Courts are generally tasked with deciding whether a
dispute is arbitrable, unless “the parties agreed to submit the question of arbitrability
itself to arbitration.” All. Bernstein Inv. Research & Mgmt., 445 F.3d at 125; see Nicosia, 834
F.3d at 229 (“The question of whether the parties have agreed to arbitrate, i.e., the
‘question of arbitrability,’ is an issue for judicial determination unless the parties clearly
and unmistakably provide otherwise.”). “When the parties’ contract delegates the
arbitrability question to an arbitrator, the courts must respect the parties’ decision as
embodied in the contract.” Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65
(2019). The only exception is if the party challenging arbitration challenges the
delegation provision specifically. Rent-A-Center, 561 U.S. at 72 (“[U]nless [plaintiff]
challenged the delegation provision specifically, we must treat it as valid . . . and must
enforce it . . . leaving any challenge to the validity of the Agreement as a whole for the
arbitrator.”); Davitashvili, 131 F.4th at 118.
Werman contends that the arbitration agreements as a whole are procedurally
and substantively unconscionable. (See Pl.’s Opp’n at 2–3, 6). She contends the
arbitration agreements are procedurally unconscionable because she had no meaningful
opportunity to review them, and because of the disparity in bargaining power between
herself and Nordstrom. (Id. at 4–5). Werman further contends that the agreements are
substantively unconscionable because they require her to waive her right to a judicial
forum, which she contends is against public policy, and place severe restrictions on
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discovery. (Id. at 6). Under the 2022 DRA, these are issues that are to be resolved in the
first instance by the arbitrator.
It provides that: “disputes relating to the . . . unconscionability or waiver of this
Agreement, including but not limited to any claim that all or any part of this agreement
is void or voidable, are Covered Disputes and shall be decided by the arbitrator.” (2022
DRA at 3-4). Werman’s unconscionability challenges fall within that provision. And
they are general, not specific to the delegation provision. (See Pl.’s Opp’n at 3, 6, 8
(stating generally that the “DRA and Amended DRA” are unconscionable)). As such,
the arbitrator in the first instance must decide these challenges. E.g., Davitashvili, 131
F.4th at 119 (“Plaintiffs argue that arbitration in general would be unconscionable. Our
precedents require something more: Plaintiffs must show why allowing an arbitrator—
as opposed to a court—to decide the question of arbitrability would be
unconscionable. . . . Because Plaintiffs have not specifically challenged the delegation
clause, we hold that their claims against Uber and Postmates should be sent to an
arbitrator to determine whether those claims are arbitrable.”); Greene v. Kabbalah Ctr.
Int’l, Inc., 625 F. Supp. 3d 3, 18 (E.D.N.Y. 2022) (“The law is clear that absent a specific
challenge, the delegation of the questions of unconscionability and enforceability of an
arbitration agreement to an arbitrator must be upheld.”); Vargas v. Bay Terrace Plaza
LLC, 378 F. Supp. 3d 190, 196–97 (E.D.N.Y. 2019) (holding that plaintiffs’
unconscionability challenges “must . . . be addressed by an arbitrator in the first
instance” where the plaintiffs did not raise a “specific challenge” to the delegation
clause).
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CONCLUSION
The motion to compel arbitration is granted. Defendants and Werman are
directed to proceed in arbitration. The Clerk of Court is directed to administratively
close this case. Zimmerman v. UBS AG, 789 F. App’x 914, 916 (2d Cir. 2020) (“As a result,
the district court’s order to ‘close’ the case with leave to reopen within 30 days of the
conclusion of arbitration proceedings functionally amounted to a stay of the
proceedings, notwithstanding that the case would end if the parties chose not to
reinstate it.”); see also Bernardino v. Barnes & Noble Booksellers, Inc, 763 F. App’x 101, 103
(2d Cir. 2019) (“[T]his Court has previously determined that there is ‘no jurisdictional
significance to [a] docket entry marking [a] case as ‘closed,’ which we will assume was
made for administrative or statistical convenience.’”(quoting Filanto, S.p.A. v. Chilewich
Int’l Corp., 984 F.2d 58, 61 (2d Cir. 1993))).
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: 	December 17, 2025
Central Islip, New York
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