21-3097-cv Glikin v. Major Energy Elec. Servs. LLC

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 2nd day of December, two thousand twenty-two. 4 5 Present: 6 GERARD E. LYNCH, 7 EUNICE C. LEE, 8 BETH ROBINSON, 9 Circuit Judges. 10 _____________________________________ 11 12 ANGELA GLIKIN, on behalf of herself and all others 13 similarly situated, 14 15 Plaintiff-Appellee, 16 17 v. 21-3097-cv 18 19 MAJOR ENERGY ELECTRIC SERVICES LLC, 20 21 Defendant-Appellant. 22 _______________________________ 23 24 For Plaintiff-Appellee: D. GREGORY BLANKINSHIP, Finkelstein, Blankinship, 25 Frei-Pearson & Garber, LLP, White Plains, New York 26 (J. Burkett McInturff, Wittels McInturff Palikovic, 27 Armonk, New York, on the brief). 28 29 For Defendant-Appellant: Kevin P. Allen and Thomas E. Sanchez, on the brief, 30 Duane Morris LLP, Pittsburgh, Pennsylvania.

1 1 Appeal from the United States District Court for the Southern District of New York

2 (Briccetti, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

4 DECREED that the order of the district court is AFFIRMED.

5 Plaintiff-Appellee Angela Glikin brought this putative class action alleging that Defendant-

6 Appellant Major Energy Electric Services LLC (“Major”) deceived its customers and overcharged

7 them for electricity. Major now appeals the district court’s order denying its motion to stay the

8 action pending arbitration under the Federal Arbitration Act (“FAA”),

. See Glikin v.

9 Major Energy Elec. Servs., LLC,

(S.D.N.Y. Dec. 13, 2021). We assume the

10 parties’ familiarity with the underlying facts, procedural history, and issues and arguments on

11 appeal.

12 This Court applies de novo review to a district court’s denial of a motion to stay an action

13 pending arbitration. Adams v. Suozzi,

(2d Cir. 2005). Section 3 of the FAA

14 requires a district court to stay proceedings “when all of the claims in an action have been referred

15 to arbitration and a stay requested.” Katz v. Cellco P’ship,

(2d Cir. 2015). To

16 determine whether a valid agreement to arbitrate exists, courts look to ordinary state-law

17 principles. Zachman v. Hudson Valley Fed. Credit Union,

(2d Cir. 2022). The

18 parties and the district court agree that Maryland law applies.

19 Major argues that the district court erred in concluding that Glikin did not receive sufficient

20 and effective notice of a purported contractual modification, which included an arbitration

21 provision and class action waiver. We disagree. Glikin’s original contract stated that she would

22 receive “written notification of the renewal terms at least 45 days prior to the renewal date” and

23 “30 days advance written notice of any material change to the Agreement.” App’x at 78. The July

2 1 21, 2016 mailing, which Major claims modified Glikin’s original contract, consisted of a letter

2 stating that Glikin’s contract would expire on September 7, 2016, and informing her that she could

3 (1) choose a new electricity rate online, (2) select a new plan by phone, or (3) “Do Nothing!”—in

4 which case her account would “automatically renew on a month to month variable rate plan.”

5 App’x at 88. The mailing also included a four-page, fine-print document titled “Maryland

6 Residential and Small Commercial Disclosure Statement and Terms of Service,” which included

7 an arbitration provision and class action waiver. App’x at 90–94. The letter made no reference to

8 those enclosed terms of service.

9 Under Maryland law, “where a party voluntarily included a notice of changes provision in

10 a customer agreement it authored and had unilateral authority to amend,” the authoring party’s

11 failure to comply with the notice provision cannot establish a valid contractual modification.

12 DIRECTV, Inc. v. Mattingly,

, 636–37 (Md. 2003). In DIRECTV, Maryland’s highest

13 court specifically rejected the argument advanced by Major that merely enclosing a copy of the

14 text of the new agreement was sufficient to comply with the notice provision. Major argues that

15 DIRECTV is distinguishable because the contract in DIRECTV required “written notice describing

16 the change,” DIRECTV,

(emphasis in original), whereas Glikin’s contract required

17 simply “written notice of any material change,” App’x at 78 (emphasis added). We need not

18 address whether Major was required to provide a detailed description of the changes in the contract

19 because Major failed to provide any notice of a material change in the first place. Relying on the

20 dictionary definitions of “notice” and “describe,” the DIRECTV court concluded that the contract

21 there required, “in writing, information or a warning [notice] that would convey an image or

22 impression in words designed to reveal [describe] the content of the new modifications . . . that

23 w[ere] different from what the initial . . . agreement stated.” DIRECTV,

(internal

3 1 quotation marks omitted). In other words, DIRECTV agreed to let the customer “know when a

2 change occurred and what that changed entailed.”

(emphasis omitted). Here, Major’s letter

3 neither informed Glikin that the attached contract was modified nor warned her to review the

4 contract for changes. Regardless of any potential need for a detailed description, Major failed to

5 let Glikin “know when a changed occurred.”

Because the Maryland Court of Appeals has

6 explained that merely attaching a contract is insufficient written notice, accepting Major’s position

7 “would be the practical equivalent of writing the notice [of any material change] provision out of

8 the customer agreement.”

. Since the July 21, 2016 mailing did not effect a valid

9 contractual modification so as to subject Glikin to the mandatory arbitration clause or class waiver

10 provision, the district court did not err in denying Major’s motion to stay the action pending

11 arbitration.

12 We have considered Major’s remaining arguments and find them to be without merit.

13 Accordingly, we AFFIRM the order of the district court.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk

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