USCA4 Appeal: 23-2020 Doc: 52 Filed: 10/29/2024 Pg: 1 of 18

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2020

MICHAEL A. NAIMOLI, JR.; MORGAN FRENCH; ANDREW COLLINS; MARISSA SANTARLASCI,

Plaintiffs - Appellees,

v.

PRO-FOOTBALL, INC., now known as Pro-Football LLC, a/k/a Washington Commanders Football Team, f/k/a Washington Football Team, f/k/a Washington Redskins Football Team; WFI STADIUM, INC., now known as WFI Stadium LLC, f/k/a JKC Stadium, Inc.; CONTEMPORARY SERVICES CORPORATION, (CSC),

Defendants - Appellants,

and

COMPANY DOES, Maintenance Subcontractors at FedEx Field,

Defendant.

------------------------------------------

ATLANTIC LEGAL FOUNDATION,

Amicus Supporting Appellants.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:22-cv-02276-TDC)

Argued: September 24, 2024 Decided: October 29, 2024 USCA4 Appeal: 23-2020 Doc: 52 Filed: 10/29/2024 Pg: 2 of 18

Before NIEMEYER, GREGORY, and HEYTENS, Circuit Judges.

Vacated, reversed in part, and remanded in part by published opinion. Judge Niemeyer wrote the opinion, in which Judge Gregory and Judge Heytens joined.

ARGUED: Shay Dvoretzky, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Washington, D.C., for Appellants. Robert D. Sokolove, WEIR GREENBLATT PIERCE LLP, Philadelphia, Pennsylvania, for Appellees. ON BRIEF: Joe G. Hollingsworth, Grant W. Hollingsworth, Brett S. Covington, HOLLINGSWORTH LLP, Washington, D.C.; Paul Finamore, Halle P. Gray, PESSIN KATZ LAW, P.A., Columbia, Maryland, for Appellants Pro-Football, Inc. and WFI Stadium Inc. M. Patrick Gallagher, MARTELL, DONNELLY, GRIMALDI & GALLAGHER, P.A., Hunt Valley, Maryland, for Appellant Contemporary Services Corporation. Jennifer Hiller Nimeroff, WEIR GREENBLATT PIERCE LLP, Philadelphia, Pennsylvania, for Appellees. Lawrence S. Ebner, ATLANTIC LEGAL FOUNDATION, Washington, D.C., for Amicus Curiae.

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NIEMEYER, Circuit Judge:

While attending a professional football game between the Philadelphia Eagles and

the Washington Football Team at FedExField in the Maryland suburbs of Washington,

D.C., the four plaintiffs were injured when a railing collapsed. They commenced this

action for negligence against the owner of the football team, the owner of the stadium, the

company that provided security services at the stadium, and unidentified maintenance

persons. The defendants filed a motion to compel arbitration based on an arbitration clause

contained in the terms and conditions governing the purchase and use of the tickets. The

tickets were purchased online by a friend and relative of the plaintiffs, Brandon Gordon

(who is not a party), and Gordon displayed the electronic tickets using his iPhone to provide

entry into the game for him, the plaintiffs, and four others.

The district court denied the motion to compel arbitration finding (1) that factual

disputes existed as to whether the arbitration clause was indeed agreed to by Gordon, but

(2) that, even if he did enter into such a contract, the defendants did not demonstrate that

Gordon was an agent of the plaintiffs who could bind them to the arbitration clause.

As to whether the plaintiffs were bound by any contract that Gordon may have

entered into, we reverse. And as to whether Gordon actually had a contract with the

defendants, we remand to permit the district court to conduct such proceedings as necessary

to resolve the factual disputes and determine the legal issue.

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I

Through a website called “TickPick,” Brandon Gordon purchased nine tickets on

December 27, 2021, for the football game scheduled for January 2, 2022, between the

Philadelphia Eagles and the Washington Football Team at FedExField in Landover,

Maryland. He purchased one ticket for himself, one for his cousin, and seven for friends

and stored all of them on his iPhone. On the day of the game, the group of nine drove from

New Jersey to FedExField, and Gordon presented the nine tickets at the gate with his

iPhone, which allowed the group to enter FedExField to watch the game. After the Eagles

won 20 to 16, the group wanted to congratulate the Eagles players, and employees of

Contemporary Services Corporation, the company providing security at the stadium,

directed them to a location near the tunnel where the Eagles players would be departing

from the field to their locker room. As the plaintiffs — Michael Naimoli, Jr., Morgan

French, Andrew Collins, and Marissa Santarlasci — leaned against the railing to give

congratulatory “high-fives” to the players, the railing collapsed, causing them to fall 5 to

10 feet to the concrete floor of the tunnel and sustain personal injury.

The four commenced this action against Pro-Football, Inc., WFI Stadium Inc., * and

Contemporary Services Corporation, as well as other unidentified maintenance persons,

* Pro-Football, Inc, owns the Washington Commanders Football Team, formerly the Washington Football Team and before that the Washington Redskins Football Team. WFI Stadium, Inc. is the owner of what was, at the time, referred to as FedExField. Based on the parties’ status as of the time of the plaintiffs’ claims, we refer to Pro-Football, Inc., as the Washington Football Team and the stadium as FedExField. 4 USCA4 Appeal: 23-2020 Doc: 52 Filed: 10/29/2024 Pg: 5 of 18

alleging negligence. They relied on diversity jurisdiction, and each plaintiff claimed

damages in excess of $75,000.

Proceeding under § 3 of the Federal Arbitration Act, the defendants filed a “Motion

to Compel Arbitration and Dismiss the First Amended Complaint.” They contended that

the plaintiffs were subject to “mandatory, binding arbitration,” as included in the “terms of

the ticket licenses that Plaintiffs used to enter and attend” the game. They brought their

motion under Federal Rules of Civil Procedure 12(b)(1) (lack of subject-matter

jurisdiction), 12(b)(3) (improper venue), and 12(b)(6) (failure to state a claim upon which

relief can be granted).

The parties’ submissions to the court on the motion included affidavits, exhibits,

and memoranda. The plaintiffs maintained (1) that Gordon did not enter into any

agreement to arbitrate and (2) that, in any event, the four plaintiffs never possessed the

tickets and had no notice of any arbitration agreement so as to be bound by it.

Gordon stated in an affidavit that he purchased the tickets on December 27, 2021,

through a website called TickPick and received an email from TickPick confirming the

order and stating, “You will receive a followup email when your tickets are ready for

Electronic Transfer delivery.” He also stated that TickPick then followed up with another

email on that same date, stating, “Your tickets are ready to be accepted through the venue’s

Mobile-To-Mobile Transfer System.” The email directed Gordon to click on a box labeled

“Transfer Link.” When he did, it triggered an email from Ticketmaster, stating that he had

received “9 Washington Football Team tickets.” The Ticketmaster screen provided a

location to click, labeled “Accept Tickets.” When Gordon did so, he was prompted to log

5 USCA4 Appeal: 23-2020 Doc: 52 Filed: 10/29/2024 Pg: 6 of 18

into his Ticketmaster account, which he did. According to Gordon’s affidavit, after he

logged into his Ticketmaster account, he “accessed the electronic tickets, which [he] placed

in [his] Apple Wallet on [his] iPhone.” He claimed that at no time during the ticket-

purchase or ticket-access process was he shown the terms and conditions of the Washington

Football Team, the company owning FedExField, or Contemporary Services — or, more

particularly, a clause requiring arbitration of any claims against those entities. He also

claimed that the electronic tickets had no terms or conditions on their face. He concluded

accordingly, “I never entered into any contract agreeing to mandatory arbitration.”

Michael Naimoli, one of the plaintiffs, submitted an affidavit in which he stated that

he never possessed any of the tickets that Gordon had purchased and that he was never

“prompted to read terms and conditions which established any sort of contractual

relationship with” the defendants. He too concluded, “I never entered into any contract

agreeing to mandatory arbitration with any of the Defendants in this lawsuit.”

The defendants submitted an affidavit of Matthew Carabajal, the Senior Director of

Ticket Operations for the Washington Football Team. Carabajal stated that TickPick is an

online secondary marketplace from which to purchase tickets and that a purchaser of tickets

from TickPick still had to proceed “through the Washington Football Account Manager

(which is powered by Ticketmaster).” According to Carabajal, directly below the space on

the Ticketmaster website where Gordon was required to log into his Ticketmaster account

with his email address and password and directly above the “Sign In” button that Gordon

was required to click to access his account was the following phrase: “By continuing past

this page, you agree to the Terms of Use and understand that information will be used as

6 USCA4 Appeal: 23-2020 Doc: 52 Filed: 10/29/2024 Pg: 7 of 18

described in both the Ticketmaster Privacy Policy and Washington [Football Team’s]

Privacy Policy.” Carabajal also stated that immediately after Gordon signed into his

Ticketmaster account on January 2, 2022 — before the game — he would have been taken

to a pop-up window that presented the full text of the Washington Football Team’s terms

and conditions, which included the arbitration clause. He stated further that those terms

and conditions were accompanied by a “button labeled ‘Agree,’” which Gordon would

have been required to click in order to “access, download, or use electronic tickets for the

Football Game.” Nonetheless, the screenshot of the pop-up window that Carabajal

attached to his affidavit, showing a tab labeled “Washington Commanders Terms &

Conditions,” also includes a tab labeled “Ticketmaster,” which raises the unanswered

question whether Gordon was only given the opportunity to click on the tab with the

Washington Football Team’s terms and conditions or was required to pass through them

to obtain the tickets. Finally, Carabajal stated that the tickets in Gordon’s Apple Wallet

would have shown a small circle with three dots at the top right corner of the screen, which,

when clicked, would have displayed another screen — “the ‘back’ of the electronic ticket.”

The “back” of the ticket would have displayed the Washington Football Team’s terms and

conditions.

Washington Football Team’s terms and conditions defined a ticketholder’s status as

follows:

Tickets to Washington Football Team (“Team”) games and other events held at FedExField are revocable licenses that only grant a one-time entry into the stadium and a seat, or if specified on the ticket, a standing location, for the specified game (the “Event”) with no right of re-entry. The person seeking entry pursuant to such license, and any accompanying minors

7 USCA4 Appeal: 23-2020 Doc: 52 Filed: 10/29/2024 Pg: 8 of 18

(“Holder”), agrees that such license is subject to these terms (“Terms”) and by purchase, acceptance and/or use of such license, Holder is deemed to have read the Terms and has agreed to be bound by them.

And they also included an arbitration clause, written in all caps and partially underlined as

follows:

ANY DISPUTE, CLAIM, OR CAUSE OF ACTION IN ANY WAY RELATED TO THE TICKET OR THE EVENT SHALL BE RESOLVED BY MANDATORY, CONFIDENTIAL, FINAL, AND BINDING ARBITRATION . . . . HOLDER UNDERSTANDS THAT THEY ARE WAIVING THEIR RIGHT TO A COURT OR JURY TRIAL . . . . IF HOLDER DOES NOT CONSENT TO THIS CLAUSE, HOLDER MUST LEAVE OR NOT ENTER THE STADIUM. THIS CLAUSE IS GOVERNED BY THE FEDERAL ARBITRATION ACT.

The district court found that the plaintiffs were not bound by this arbitration clause.

The court concluded first that factual disputes precluded its “finding of a valid contract”

between Gordon and the Washington Football Team. Naimoli v. Pro-Football, Inc.,

, 509 (D. Md. 2023). Based on the affidavits of Gordon and Carabajal, the

court explained, “this factual dispute is material because if Gordon moved past the pop-up

window by viewing and agreeing only to the Ticketmaster Terms of Use, which do not

include the arbitration agreement, he would not have agreed to the [Washington Football

Team’s] Terms & Conditions.”

The court acknowledged that if it credited Gordon’s

account, “[t]he only way that a user could learn that the [Washington Football Team’s]

Terms & Conditions were meant to be part of the ticket would be to click on a small circle

with three dots in the upper right corner of the ticket, which contained no language directing

the user to click on it, stating that it would lead to the ‘back’ of the ticket, or informing the

user that it would lead to the [Washington Football Team’s] Terms & Conditions which

8 USCA4 Appeal: 23-2020 Doc: 52 Filed: 10/29/2024 Pg: 9 of 18

are part of a contract to which the user was agreeing.”

. The court found that if

the defendants had to rely on Gordon’s engagement of the three dots, such notice was

“entirely insufficient to establish an agreement to a contract.”

The district court did not undertake to resolve this factual dispute but rather

concluded that, “regardless of whether Gordon entered into a contract including the

arbitration clause, Defendants [had] not demonstrated that Plaintiffs were bound by the

terms of that contract.” Naimoli, 692 F. Supp. 3d at 510. Acknowledging Maryland’s

principal-agent law, the court concluded that “Plaintiffs took no actions at the time of the

entry of the contract that could be construed as communicating that they had given Gordon

the authority to enter into the contract. The only act they undertook was to later enter the

stadium using Gordon’s tickets.” Id. at 513. The court continued, “Here, there is no claim

or evidence that Plaintiffs were aware of the arbitration clause, or even the [Washington

Football Team’s] Terms & Conditions more generally, so the Court cannot find that

Gordon had apparent authority to enter into a contract containing an arbitration clause, or

that Plaintiffs later ratified or assented to the contract and its arbitration clause.” Id. at 514.

Because the defendants had not shown that Gordon had authority to bind the plaintiffs with

the arbitration clause, the court denied the defendants’ motion to compel the plaintiffs to

arbitrate their claims. Id. at 516.

From the district court’s interlocutory order dated September 14, 2023, the

defendants filed this appeal. See

(authorizing such interlocutory appeals).

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II

The district court found that the factual circumstances under which the Washington

Football Team’s terms and conditions were displayed to Gordon online were disputed and

therefore that the basis for the formation of a contract containing the arbitration clause

could not be resolved as a matter of law. Rather than conducting proceedings to resolve

the factual question, the court denied the defendants’ motion to compel arbitration “because

regardless of whether Gordon entered into a contract including an arbitration clause,” the

defendants had “not demonstrated that Plaintiffs were bound by the terms of that contract.”

Naimoli, 692 F. Supp. 3d at 510. Regarding the defendants’ claim that Gordon had

“apparent authority” under agency law to bind the plaintiffs to the arbitration clause, the

court reasoned that the defendants had failed to provide sufficient evidence establishing

the critical element that the plaintiffs had “knowledge of [the arbitration clause’s]

existence.” Id. at 511. Relying on the Maryland Supreme Court’s decision in Dickerson

v. Longoria,

(Md. 2010), the court asserted that a person seeking to enforce

an arbitration clause by apparent authority must show that the principal was “aware of the

arbitration agreement” that the person as agent had agreed to. Naimoli, 692 F. Supp. 3d at

512 (quoting Dickerson,

). Thus, because there was no evidence that

plaintiffs were aware of any arbitration clause governing their tickets, they did not, the

district court reasoned, give Gordon apparent authority under Maryland law to bind them

to the arbitration clause. Accordingly, the court concluded that the motion to compel

arbitration had to be denied. Id. at 516.

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The issue presented thus reduces to whether Gordon’s agreement to arbitrate any

claim “related to the ticket or the event” — the existence of which we assume for purposes

of this issue — was binding on the plaintiffs under the doctrine of apparent authority.

The Federal Arbitration Act provides that a contract containing an arbitration clause

“shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in

equity for the revocation of any contract.”

. “As a foundational principle, the

Federal Arbitration Act provides for the enforcement of agreements to arbitrate when they

are created by contract, and such contracts must be treated like any other contract under

applicable state law.” Rogers v. Tug Hill Operating, LLC,

(4th Cir.

2023) (emphasis omitted), cert. denied,

(2024). Thus, enforcement of the

arbitration clause depends on the enforcement of the contract containing the clause, as

determined under state law. See Morgan v. Sundance, Inc.,

(2022)

(“Arbitration agreements are as enforceable as other contracts, but not more so” (cleaned

up)); Marshall v. Georgetown Mem’l Hosp.,

(4th Cir. 2024) (“Whether

an agreement to arbitrate was formed is a question of ordinary state contract law principles”

(cleaned up)). Accordingly, “as a general matter, the relevant threshold question that a

court must address when being asked to compel arbitration is whether an arbitration

agreement exists between the parties.” Rogers,

(cleaned up). Put simply,

the existence of a contract is a precondition to enforcement of an arbitration clause, and a

court must conclude that “the relevant state contract law allows [the plaintiff] to enforce

the agreement.” Arthur Andersen LLP v. Carlisle,

(2009).

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The relevant state law here is the law of Maryland. Consequently, whether Gordon

entered into a contract with the Washington Football Team to arbitrate and whether the

plaintiffs are bound by that contract under the agency principle of apparent authority are

determined under Maryland law.

Maryland recognizes that the common law concept of agency, as articulated by the

Restatement of Agency, applies in the State. Thus, it has defined the agency relationship

as a “fiduciary relation which results from the manifestation of consent by one person to

another that the other shall act on his behalf and subject to his control, and consent by the

other to so act.” Williams v. Dimensions Health Corp.,

, 958 (Md. 2022)

(ultimately quoting Restatement (Second) of Agency § 1(1)). Maryland courts have

explained that the agency relationship “is created when the principal confers actual

authority on the agent,” Dickerson,

, or when, “[i]n the absence of actual

authority, a . . . person has apparent authority to act on behalf of the principal,” id.; see also

Williams, 279 A.3d at 958 (quoting Restatement (Third) of Agency § 2.03). The

Restatement of Agency defines “apparent authority” as “the power held by an agent or

other actor to affect a principal’s legal relations with third parties when a third party

reasonably believes the actor has authority to act on behalf of the principal and that belief

is traceable to the principal’s manifestations.” Restatement (Third) of Agency § 2.03.

Thus, a third party can rely on an agent’s purported authority (1) when the third party acts

reasonably in relying on the agent’s authority and (2) when that belief is traceable to the

principal’s manifestations. This formulation of apparent authority applies even where the

agent fails to notify the principal of information. See id. § 5.03 cmt. b; id. § 2.03 cmt. d.

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In this case, the Washington Football Team claims that its reliance on Gordon’s

apparent authority to act on behalf of the plaintiffs was reasonable, and we agree. When

Gordon purchased the nine tickets, he entered into a contract — as we are assuming for

this argument — that gave him a limited license to attend the football game. And he agreed

that if he were to refuse to consent to the attendant limitations, he would have to “leave or

not enter the stadium.” When he gave or sold those tickets with their limitations to the

plaintiffs, he could give them no more than he had. And it is undisputed that he did transfer

the tickets to the plaintiffs as they used them, albeit from his iPhone, to enter the stadium.

Even though Gordon was the purchaser of the tickets, it was reasonable for the Washington

Football Team to assume that in purchasing nine tickets, Gordon did so both for himself

and for the plaintiffs, as indicated by the purchase of multiple tickets and the plaintiffs’

entry into the stadium by means of those tickets. Indeed, this was consistent with the

universal practice of purchasing event tickets both for oneself and for others. Not only was

the Washington Football Team’s reliance on Gordon’s agency reasonable, there is also

evidence in the record that the plaintiffs assented to Gordon’s agency. The plaintiffs used

the tickets on Gordon’s iPhone to enter the stadium, thereby manifesting their acceptance

that Gordon had acted and was acting on their behalf in purchasing the tickets and

presenting them at the game. Thus, not only was the Washington Football Team’s reliance

on Gordon’s agency reasonable, its belief was traceable to the plaintiffs’ manifestations —

their use of the tickets to enter the stadium. This is all that is required for apparent authority

under Maryland law. See Williams, 279 A.3d at 958; Dickerson,

; see also

Restatement (Third) of Agency § 2.03.

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Such apparent authority is reflected not only in the circumstances of this case, but

it reflects the reasonable practice of virtually every ticketed event where one person buys

tickets for himself or herself as well as for family and friends, often to sit together. See,

e.g., Jackson v. World Wrestling Ent., Inc.,

(5th Cir. 2024). In Jackson, the

court held that “[a]n individual who permits a third party to present a ticket for admittance

to an event on his behalf is bound by the terms and conditions governing the use of that

ticket.”

. The court explained that accepting the arbitration agreement as part of

the tickets was well within the agent’s authority to give others entry into the stadium. It

noted, “Event attendees routinely purchase and present tickets on behalf of family and

friends, and in doing so, accept the required terms and conditions.”

. We agree.

We thus conclude that the district court erred in requiring actual awareness as a

condition for apparent authority, and therefore we reverse its holding that the plaintiffs

were not bound to Gordon’s contract with the Washington Football Team, assuming it

existed.

The district court, as well as the plaintiffs, relied on Dickerson to argue that apparent

authority requires actual awareness. Dickerson, however, was resolved on a much

narrower basis. In Dickerson, Carter Bradley gave Carman Dickerson a written power of

attorney to act as Bradley’s agent for purposes of “health care and financial decisions.”

. Reviewing this explicit agency agreement, the Maryland Supreme Court

held that “the scope of this consensual relationship did not include the authority to bind

Bradley to [an] arbitration agreement” that was included in the agreement that Dickerson

signed to place Bradley in a nursing home.

As the court observed, “Bradley may have

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conferred on Dickerson the authority to make health care and financial decisions on his

behalf, but no more than that. . . . Quite obviously, the decision to sign an arbitration

agreement is not, in and of itself, a health care decision.”

at 736–37. The court

explained also that in light of the express agency agreement and the lack of any other

manifestation by Bradley that “Dickerson had the authority to waive [Bradley’s] right of

access to the courts and right to a trial by jury by signing an arbitration agreement on his

behalf,” there was no evidence suggesting that Dickerson had apparent authority.

. While the court did note that the record showed “no evidence suggesting that Bradley

was ever aware of the arbitration agreement,”

, it emphasized that Maryland

follows standard agency principles. It explained, “Apparent authority results from certain

acts or manifestations by the alleged principal to a third party leading the third party to

believe that an agent had authority to act.”

(cleaned up). And this is how the

Maryland Supreme Court later explained the doctrine more fully in Williams. See 279 A.2d

at 958. This formulation was derived from the Restatement of Agency, which explicitly

notes that apparent authority does not require awareness. See Restatement (Third) of

Agency § 5.03 cmt. b; id. § 2.03 cmt. d.

We believe that Dickerson, rather than undermining the well-established principles

of apparent authority in Maryland, applied them to the particular facts of the case before

the court. It thus provides little support to the plaintiffs’ effort to add additional elements

to the well-established requirements for apparent authority.

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III

In view of our ruling on apparent authority, it becomes necessary to address whether

Gordon’s online engagement in purchasing the tickets actually resulted in a contract that

included the Washington Football Team’s terms and conditions and arbitration clause. And

that, in turn, required that the defendants have shown (1) that the interface design for the

purchase of the tickets provided Gordon with actual or constructive notice of the

Washington Football Team’s terms and conditions and (2) that Gordon assented to those

terms and conditions, as necessary for the formation of a contract. See DIRECTV, Inc. v.

Mattingly,

(Md. 2003); Galloway v. Santander Consumer USA, Inc.,

, 88–89 (4th Cir. 2016).

The district court fairly set forth the legal principles governing those requirements

in the context of contract formation on the Internet, see Naimoli, 692 F. Supp. 3d at 508,

which appear consistent with our recent decision in Marshall. In Marshall, we explained

that traditional contract requirements apply to contracts formed on the Internet and that the

person asserting the contract’s existence must demonstrate that the person alleged to be

bound by the contract (1) had “reasonable notice of an offer” to enter into the contract and

(2) “manifested” assent to it. Marshall,

. While notice can be actual or

constructive, “in the internet context, the traditional notice inquiry focuses on the design

and content of the relevant interface and asks whether it would put a reasonably prudent

user on notice of a contract on offer and its terms.”

at 218–19 (cleaned up). “Offers

and terms that are made reasonably conspicuous generally will satisfy this standard.”

(cleaned up). We explained, however, that constructive notice cannot be presumed

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if obtaining it requires clicking all available boxes on the computer screen. Stated

otherwise, “we cannot presume that a person who clicks on a box that appears on a digital

screen has notice of all contents not only of that page but of other content that requires

further action (scrolling, following a link, etc.).”

(alteration omitted) (quoting Sgouros

v. TransUnion Corp.,

(7th Cir. 2016)); see also Starke v.

SquareTrade, Inc.,

(2d Cir. 2019). We explained that the duty-to-read

principle that is applicable to traditional contracts must take account of the realities of the

Internet where readers reasonably do not often scroll down or follow links presented. As

we noted in Marshall, “‘the duty to read does not morph into a duty to ferret out contract

provisions when they are contained in inconspicuous hyperlinks,’ or can be found only by

scrolling down through additional screens.” Marshall,

(quoting Starke,

); see also Specht v. Netscape Commc’ns Corp.,

, 32 (2d Cir.

2002).

In this case, the district court found that the facts necessary to apply the legal

principles of online contract formation were in dispute, as each side gave different accounts

of how, if at all, the websites displayed the Washington Football Team’s terms and

conditions. And because the question of contract formation turns on this factual dispute,

we remand for resolution of whether Gordon’s online engagement in purchasing the tickets

resulted in a contract with the Washington Football Team that included its terms and

conditions and the arbitration clause in particular.

On remand, the court will continue to have before it the defendants’ motion to

compel arbitration and to be governed procedurally by the Federal Arbitration Act, which

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provides that “[a]ny application to the court hereunder shall be made and heard in the

manner provided by law for the making and hearing of motions, except as otherwise herein

expressly provided.”

. As the Supreme Court has noted, this “directive to a

federal court to treat arbitration applications ‘in the manner provided by law’ for all other

motions is simply a command to apply the usual federal procedural rules.” Morgan,

. Thus, a district court may resolve the relevant factual disputes by, as

necessary, affording targeted discovery, conducting an evidentiary hearing, conducting a

summary trial, making findings of fact and conclusions of law, all as necessary and

appropriate to resolve the motion. See, e.g., Tehran-Berkeley Civ. & Env’t Eng’rs v.

Tippetts-Abbett-McCarthy-Stratton,

, 868–69 (2d Cir. 1987). But in doing

so, it must recognize that the Federal Arbitration Act “calls for a summary and speedy

disposition of motions or petitions to enforce arbitration clauses.” Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp.,

(1983).

On remand, the district court thus should conduct such proceedings as necessary to

resolve the disputed facts that, in this case, are necessary to determine whether Gordon

entered into a contract with the Washington Football Team that included its terms and

conditions and the arbitration clause.

* * *

Accordingly, we vacate the district court’s order denying arbitration; we reverse its

ruling on Gordon’s apparent authority; and we remand the case for further proceedings as

noted.

IT IS SO ORDERED.

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