Additionally, the Agreement contained the following cost-sharing provision: will pay all filing and administration fees charged by the administrator and arbitrator fees up to $1,000, and will consider request to pay any additional arbitration costs. “Claim” was defined as “any dispute, claim, or controversy (whether based on contract, tort, intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing, present, or future, and whether 2 seeking monetary, injunctive, declaratory, or any other relief) arising from or relating to this Note or the relationship between and (including claims arising prior to or after the date of this Agreement. The Agreement provided, in relevant part, that “ny Claim shall be resolved, upon the election of either or, by binding arbitration administered by the American Arbitration Association or JAMS, under the applicable arbitration rules of the administrator in effect at the time a Claim is filed.” Bryant Decl. Whitt completed a loan application using Prosper’s website. An applicant could not complete a loan application without clicking the box indicating his or her acceptance of the Agreement. This text appeared near the bottom of the webpage, immediately above a “Continue” button.
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The term “borrower registration agreement,” which was underlined and shaded blue, was rendered as a hyperlink to the Agreement itself. 41 (ApDeclaration of Allyson Bryant) (“Bryant Decl. the borrower registration agreement.” See Dkt. The website specifically required applicants to click a box adjacent to the bolded text “Clicking the box below constitutes your acceptance of. 25 (MaDeclaration of Allyson Bryant) (“Bryant Decl. Agreement to Arbitrate According to the evidence attached to Prosper’s motion, at the time that Whitt applied for a loan through Prosper’s website, the website required all applicants to confirm their acceptance of Prosper’s Borrower Registration Agreement (the “Agreement”). Whitt alleges that Prosper’s conduct violated the ADA and the corresponding state and municipal statutes. In connection with this policy, Prosper required Whitt to provide additional proof of identity and suspended his account. Prosper informed Whitt that its policy was to not accept calls made using a Video Relay Service and that it would not accept his call on that basis. In the process of attempting to confirm his identity, Whitt called Prosper using a Video Relay Service, which is a service that allows a hearing impaired individual to communicate by telephone using a sign language interpreter as a mediator. On September 1, 2014, Whitt, who is deaf, applied for a loan through Prosper’s website. Prosper also services each loan on behalf of matched borrowers and investors. Whitt’s Allegations According to the allegations in the complaint, Prosper operates a peer-to-peer lending service that connects potential borrowers with potential investors. Accordingly, Prosper’s motion to dismiss and to compel arbitration is granted. For the following reasons, the Court holds that Whitt entered into an enforceable agreement to arbitrate his claims in this case, and that the appropriate remedy under the circumstances is to dismiss rather than stay the case in favor of arbitration. § 1 et seq., and Federal Rule of Civil Procedure 12(b)(6). Prosper moves to stay or dismiss this action and to compel arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 12182, and the corresponding provisions of state and municipal law. (together, “Prosper”), alleging that Prosper discriminated against him based on a disability, in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. WOODS, United States District Judge: Plaintiff Larry Whitt brought this action against Defendants Prosper Funding LLC and Prosper Marketplace, Inc. 48 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _ DATE FILED: 1:15-cv-136-GHW MEMORANDUM OPINION AND ORDER GREGORY H. Prosper Funding LLC et al UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -X LARRY WHITT, : : Plaintiff, : : -v : : PROSPER FUNDING LLC and PROSPER : MARKETPLACE, INC., : : Defendants.
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