SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4283-19

JEFFREY PARRELLA,

on behalf of himself and

all others similarly situated,

Plaintiff-Appellant,

v.

SIRIUS XM HOLDINGS, INC. 

d/b/a SIRIUS XM SATELLITE 

RADIO, SIRIUS XM RADIO INC.,

and JAMES E. MEYER,

Defendants-Respondents.

Argued November 9, 2021 – Decided January 18, 2022

Before Judges Currier and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Docket Number L-1207-19.

Andrew R. Wolf argued the cause for appellant (The 

Dann Law Firm, PC and The Law Office of Henry P. 

Wolfe LLC, attorneys; Andrew R. Wolf, Bharati O. 

Sharma and Henry P. Wolfe, on the briefs). 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-4283-19

Harry P. Morgenthau (Kramer Levin Naftalis & Frankel 

LLP) of the New York bar, admitted pro hac vice, 

argued the cause for respondents (Robinson Miller 

LLC, Harry P. Morgenthau, Mark A. Baghdassarian 

(Kramer Levin Naftalis & Frankel LLP) of the New 

York and Connecticut bars, admitted pro hac vice, and 

Aaron M. Frankel and Eileen M. Patt (Kramer Levin 

Naftalis & Frankel LLP) of the New York bar, admitted 

pro hac vice, attorneys; Michael J. Gesualdo, Mark A. 

Baghdassarian, Aaron M. Frankel, Eileen M. Patt, and 

Harry P. Morgenthau, on the brief).

PER CURIAM

Plaintiff, in his individual capacity and on behalf of a putative class action,

filed a complaint against defendants, satellite radio providers,

1

alleging they 

falsely advertised discounts to induce consumers to reactivate their Sirius radio 

devices. Defendants moved to dismiss the action and compel arbitration under 

the parties' customer agreement (agreement). The trial court granted the motion, 

finding mutual assent to the arbitration clause was implied from plaintiff's 

"usage—payment, usage of [defendants'] service, [and] extended relationship 

history [with defendants] . . . ." Therefore, the arbitration agreement was 

enforceable. We affirm.

1 Defendant James E. Meyer is the Chief Executive Officer of Sirius XM 

Holdings, Inc. We refer to the entities and individual collectively as defendants.
3

A-4283-19

I.

In December 2017, plaintiff received a mailed advertisement from 

defendants offering three years of defendants' satellite radio service for a

discounted price of $99.00. The offer contained the following language: "See 

our Customer Agreement for complete terms." According to Catherine Petra, 

defendants' Vice President, defendants sent plaintiff this advertisement to 

incentivize him to reactivate his 2009 Jeep Grand Cherokee radio receiver. 

Plaintiff has utilized defendants' services for many years. In 2005, 

plaintiff purchased services for two portable radios (the 4180 account and 6008 

account). In 2009, plaintiff received a free trial subscription when he purchased

his Jeep Grand Cherokee, and subsequently purchased a subscription after the

expiration of the free trial (the 1453 account). Plaintiff terminated his 6008 

account in 2008, his 1453 account in 2010, and his 4180 account in 2011. 

When plaintiff purchased a Toyota Highlander in 2017, it included a free 

three-month trial subscription. Plaintiff did not renew the subscription at the 

end of the free trial period. 

When plaintiff received the promotion from defendants in December 

2017, he went to defendants' website and attempted to reactivate his 1453 

account previously used in his 2009 Jeep Grand Cherokee. However, 
4

A-4283-19

defendants' website did not allow him to purchase that plan. Instead, the website 

directed him to choose from a list of different and more expensive service plans. 

After calling defendants' service number, the service representative 

informed plaintiff that the three-year, $99.00 promotion was not available for 

his 2009 Jeep Grand Cherokee. The service representative stated:2

Okay. Well I tried double-checking just with my 

supervisor and the offer for—I mentioned earlier that 

we don't usually have this offer, the $99 for three years. 

It's actually radio-specific, that's the reason why I 

checked the radio ID several times with you . . . . I'm 

not showing here . . . an option for the three years for 

$99. 

Plaintiff responded, stating, "I don't know what you're telling me. I have 

it in my hands . . . . Just so you know, what you're doing is illegal . . . ." Plaintiff

requested the assistance of a supervisor. Defendants' service representative 

responded that they would "bring this issue to the higher department . . . and 

[will] mak[e] a note on this." When the representative asked plaintiff if he 

wanted to purchase a different service subscription for his Jeep, the following 

exchange took place:

2 The call was recorded. Defendants attached a transcript of the call as an 

exhibit in support of their motion to dismiss the complaint and compel 

arbitration. 
5

A-4283-19

[DEFENDANTS' REPRESENTATIVE:] So you would 

still want to activate [the radio subscription] with the 

offer for 12 months for $60?

[PLAINTIFF:] Sure. Well, yes and no. Like I said, I'll 

activate it now but that I'm assuming it will be corrected 

[to three years for $99.00] because I'm holding a valid 

offer in my hands, so—

[DEFENDANTS' REPRESENTATIVE:] Sure. 

. . . .

[DEFENDANTS' REPRESENTATIVE:] After fees and 

taxes, that will be . . . $73.18 and we will charge you 

[o]n February 8, [2018]. Okay you still have two 

months to . . . make some changes, and you have a trial 

for two months.[3] And I will escalate this issue to the

higher department so they . . . will know what 

happened. Okay?

[PLAINTIFF:] Thank you.

Plaintiff provided his credit card information for the billing. The 

representative repeated the details of the service selected by plaintiff: 

[DEFENDANTS' REPRESENTATIVE:] The 12 

months select plan you chose starts at the end of your 

trial on February 8, 2018. Your bill is $73.04 for the 

initial billing . . . . Your service will automatically 

renew on February 8, 2019. Your renewal will bill 

every month at the current rate for an estimated total 

charge of $19.46, which includes fees and taxes. You 

3

 Defendants gave plaintiff a two-month trial period before his credit card would 

be charged and the one-year subscription period would begin. Therefore, his 

subscription period did not start until February 2018.
6

A-4283-19

may cancel at any time by calling us . . . . Your 

customer agreement can be found on our website, 

Siriusxm.com, or you can request it at any time by 

phone . . . . Do you accept these terms, and may I have 

your permission to charge your card for $73.04 at the 

end of your trial on February 8, 2018 minus any credits 

on your account and for all future charges?

[PLAINTIFF:] Uh, yes, with the reservation of—that I 

have mentioned before. But yes.

[(emphasis added)].

Plaintiff's credit card was charged as described. He did not hear back from 

defendants regarding his "reservation," nor did he contact defendants at any time 

over the next year.

Defendants sent plaintiff a welcome kit that included the agreement. 

Corporate records reflected the agreement was mailed on December 28, 2017,

and the estimated arrival date at plaintiff's address was January 10, 2018,—

before the paid subscription period began and before plaintiff's credit card was 

charged. On the envelope was written "IMPORTANT SUBSCRIBER 

INFORMATION INSIDE." At the bottom of the cover letter, it stated: "See our 

Customer Agreement enclosed or online at www.siriusxm.com. Please be sure 

to read it." 
7

A-4283-19

The agreement stated: "This Customer Agreement . . . applies to [each] 

paid, trial, or other subscription . . . in the Service Area . . . and [on] the website 

. . . available to [s]ubscribers and others at www.siriusxm.com." 

IF YOU DO NOT ACCEPT [THE AGREEMENT'S] 

TERMS, PLEASE NOTIFY US IMMEDIATELY 

AND WE WILL CANCEL YOUR SUBSCRIPTION. 

IF YOU DO NOT CANCEL YOUR SUBSCRIPTION 

WITHIN THREE BUSINESS DAYS OF THE START 

OF YOUR PLAN, IT WILL MEAN THAT YOU 

AGREE TO THIS AGREEMENT WHICH WILL BE 

LEGALLY BINDING ON YOU. 

The agreement's arbitration provision labeled "RESOLVING 

DISPUTES" is located in the second column of the brochure. It states: 

ANY DISPUTE MAY BE RESOLVED BY BINDING 

ARBITRATION. BY AGREEING TO 

ARBITRATION, YOU ARE HEREBY WAIVING 

THE RIGHT TO GO TO COURT, INCLUDING THE 

RIGHT TO A JURY. IN ARBITRATION, A DISPUTE 

IS RESOLVED BY AN ARBITRATOR, OR A PANEL 

OF ARBITRATORS, INSTEAD OF A JUDGE OR 

JURY. THE PARTIES UNDERSTAND THAT THEY 

WOULD HAVE HAD A RIGHT OR OPPORTUNITY 

TO LITIGATE DISPUTES THROUGH A COURT 

AND TO HAVE A JUDGE OR JURY DECIDE THEIR 

CASE, BUT THEY CHOOSE (BY THEIR 

ACCEPTANCE OF THIS AGREEMENT, IN 

ACCESSING OR USING THE SERVICE OR THE 

SITE) TO HAVE ANY DISPUTES RESOLVED 

THROUGH ARBITRATION. 
8

A-4283-19

Under the agreement, the parties must, prior to arbitration, engage in 

"Informal Claim Resolution" by sending a mailed notice of a dispute to 

defendants. "If [defendants] cannot resolve a [c]laim informally, including any 

[c]laim between us . . . then these [c]laims shall be resolved, upon election by 

either party, exclusively and finally by binding arbitration." The agreement also 

stated that all claims are subject to arbitration and "[i]f either party elects to 

resolve a claim by arbitration, that [c]laim shall be arbitrated on an individual 

basis." 

Defendants also mailed plaintiff a welcome kit with the agreement when 

he opened the 1453 account for his Jeep Grand Cherokee in 2009 and the account 

for his Toyota Highlander purchased in 2017. Plaintiff did not recall ever 

receiving a welcome kit containing an agreement for either account. He also 

certified he had "never read and was never aware of a set of standardized terms 

and conditions that [defendants] cal[l] [an agreement.]" As stated, the identical 

agreement was also available online on the SiriusXM website.

Plaintiff did not cancel his radio service subscription during the 2018 term 

of agreement, and he continued to use the service. On December 14, 2018, 

defendants mailed an automatic subscription renewal notice to plaintiff for his 

1453 account. The notice advised that plaintiff's subscription service would 
9

A-4283-19

renew monthly beginning on February 8, 2019 and provided the monthly charge.

Additionally, plaintiff was informed if he wanted to "review or make changes to 

[his] account, [he] can visit sirusxm.com/myaccount anytime." Plaintiff was 

also instructed to "see our [agreement] . . . for complete terms, our refund policy, 

and how to cancel." And, the renewal notice provided that if plaintiff did "not 

wish to be charged for [his] subscriptions, [he] must cancel prior to renewal." 

Plaintiff did not cancel the subscription and continued to pay the monthly charge 

after the renewal date. 

II.

In June 2019, plaintiff filed a complaint relating to his 1453 account 

subscription, alleging that defendants violated the New Jersey Consumer Fraud 

Act, N.J.S.A. 56:8-1 to -20, the General Advertising Regulations, N.J.A.C. 

13:45A-9.1 to -9.8, and the Truth-in-Consumer Contract, Warranty and Notice 

Act, N.J.S.A. 56:12-14 to -18. Defendants moved for dismissal of the complaint 

and to compel arbitration under the agreement.

In a comprehensive oral opinion placed on the record over two dates in 

June 2020, the trial judge noted the fifteen-year relationship plaintiff had with 

the use of defendants' services. He also stated:

Plaintiff's arguments that he did not notice, did not 

understand, did not read, does not recall the multiple 
10 A-4283-19

notices [defendants] sent him that his subscription was 

governed by [the agreement] all fail because the law 

makes [it] clear that a customer cannot bury his head in 

the sand to avoid a valid arbitration case.

The court further noted: "Plaintiff received multiple copies of 

defendants['] [agreement], including the one he received just three months 

before reactivating his subscription in December 2017, and consistently used the 

service under the [agreement] without objecting to any of its terms." The judge 

pointed out that plaintiff did not dispute receiving the hard copies of the 

agreement in the mail at any time but instead said he could not recall receiving 

the mailed notices. 

The judge found mutual implied assent existed to support the enforcement 

of the arbitration clause, "including usage—payment, usage of the service, [and] 

an extended relationship history for an extended period of time . . . ." The court 

found the arbitration clause was "conspicuous and very clear" and encompassed 

plaintiff's claims. Therefore, he granted defendants' motion to compel arbitration 

and dismissed the complaint.

III.

On appeal, plaintiff contends the trial court erred in finding he impliedly 

assented to the terms of the agreement. He also asserts the agreement is facially 
11 A-4283-19

deficient under the Plain Language Act (PLA), N.J.S.A. 56:12-1 to -13. We are 

not persuaded by either contention.

We review de novo a trial court's order compelling or denying arbitration. 

Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020); Goffe v. Foulke Mgmt. Corp., 238 

N.J. 191, 207 (2019). Therefore, we "need not defer to the interpretative 

analysis of the trial . . . courts unless we find it persuasive." Skuse, 244 N.J. at 

46 (citing Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 316 

(2019)). "In reviewing such orders, we are mindful of the strong preference to 

enforce arbitration agreements, both at the state and federal level." Hirsch v. 

Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). 

A.

We begin with the mutual assent issue. All contracts, including arbitration 

agreements, "must be the product of mutual assent, as determined under 

customary principles of contract law." Atalese v. U.S. Legal Servs. Grp., L.P., 

219 N.J. 430, 442 (2014) (citation omitted). Mutual assent is found where the 

parties manifest an intention to be bound by the contract's essential terms. 

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435-36 (1992). Arbitration 

agreements are subject to the same general principles of contract law and are not 

subject to "more burdensome treatment than other waiver-of-right clauses under 
12 A-4283-19

state law." Atalese, 219 N.J. at 444. Therefore, an arbitration provision, as with 

any other waiver-of-rights clause, "must be clearly and unmistakably 

established." Ibid. (citing Garfinkel v. Morristown Obstetrics & Gynecology 

Assocs., P.A., 168 N.J. 124, 132 (2001)). 

Through his interactions with defendants over fifteen years, plaintiff 

manifested an intention to be bound by the agreement's terms, including the 

submission of any dispute to arbitration. He agreed to and used several trial and 

full-price service subscriptions and cancelled several accounts. Upon the 

acceptance of each trial and paid subscription use, defendants provided plaintiff

with a hard copy welcome kit containing the agreement governing the parties' 

relationship. 

In December 2017, when plaintiff reactivated his radio service, he agreed 

to a year-long subscription service and provided defendants with his credit card 

information for payment. When reactivating plaintiff's account, defendants' 

service representative verbally informed plaintiff that the agreement could be 

found on defendants' website or plaintiff could request a copy of the agreement 

by phone. Plaintiff was also informed if he did not want to be bound by the 

agreement, he could cancel at any time. Plaintiff was familiar with the 

cancellation process as he had previously terminated several accounts.
13 A-4283-19

Defendants also sent plaintiff the agreement in a welcome kit on December 28, 

2017. When the contract expired, plaintiff renewed it and continued paying the 

monthly bill.

Plaintiff does not dispute he received the agreement. He had sufficient 

notice of the arbitration provision contained in the agreement. Defendants had 

mailed two prior welcome kits containing the agreement and arbitration 

provision in connection with plaintiff's prior use of their services. Plaintiff's 

actions of requesting defendants' services, using those services, and paying for 

them after receiving the agreement demonstrates his assent to the contractual 

relationship established under the agreement. As our Court stated in Weichert, 

a person may manifest "assent to the terms of an offer through words, creating 

an express contract, or by conduct, creating a contract implied-in-fact." 128 N.J. 

at 436 (emphasis added). The totality of plaintiff's actions over the fifteen-year 

relationship with defendants establishes implied assent. 

B.

Plaintiff also asserts the arbitration provision is not enforceable because 

it is deficient under the PLA. He contends the agreement's font is less than 10-

point type and does not sufficiently explain he is waiving his rights under the 

arbitration provision. We disagree.
14 A-4283-19

The PLA does not mandate any specific language, font size, or format, but 

rather lists factors for a court to consider when determining whether a consumer 

contract is compliant with the Act. The agreement here does not offend any of 

the listed factors. The PLA also provides guidelines that a court may consider 

in reviewing a consumer contract—one guideline is that "[c]onditions and 

exceptions to the main promise of the agreement . . . shall be in at least 10 point 

type." N.J.S.A. 56:12-10(b)(3).

The agreement's arbitration provision is labeled, bolded, and contains the 

heading "RESOLVING DISPUTES." It is located in the second column on the 

front page of the agreement. And, although defendants concede the font of the 

agreement contained in the welcome kit is approximately 6.75-point type, the 

PLA does not require an agreement to be at least 10-point type. It is a guideline 

for courts to consider. Moreover, the agreement was also available to review 

online, as defendants' service representative advised plaintiff. That agreement 

may be viewed in any size font convenient for a consumer. The agreement 

contained in the welcome kit and on defendants' website did not violate the PLA.

The arbitration provision informed plaintiff he was waiving his right to go 

to court and to have a jury resolve his dispute. In clear, simple language, the 

clause stated that any dispute would be resolved by binding arbitration. An 
15 A-4283-19

arbitration agreement does not need to include any specific set of words but 

"must explain that the plaintiff is giving up [their] right to bring [their] claims 

in court or have a jury resolve the dispute." Atalese, 219 N.J. at 447.

Affirmed.