NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-1903

_____________

DAVID W. NOBLE, individually and on

behalf of others similarly situated

v.

SAMSUNG ELECTRONICS AMERICA, INC.,

 Appellant 

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-15-cv-03713)

District Judge: Hon. Madeline C. Arleo

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Argued

January 13, 2017

Before: SMITH, Chief Judge, JORDAN, and SHWARTZ, Circuit Judges.

(Opinion Filed: March 3, 2017)

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S. Gale Dick [ARGUED]

Cohen & Gresser

800 Third Avenue

New York, NY 10022
2

Samuel P. Moulthrop

Stephanie R. Wolfe

Riker Danzig Scherer Hyland & Perretti

One Speedwell Avenue

Headquarters Plaza

Morristown, NJ 07962

 Counsel for Appellant

Rachel M. Clattenburg [ARGUED]

Scott L. Nelson

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

Joseph J. DePalma

Lite DePalma Greenberg

570 Broad Street

Suite 1201

Newark, NJ 07102

Benjamin D. Elga

Cuneo Gilbert & LaDuca

16 Court Street

Suite 1012

Brooklyn, NY 11241

 Counsel for Appellee

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OPINION

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JORDAN, Circuit Judge.

From David Noble’s point of view, perhaps the only thing more frustrating than 

the weak battery in his Samsung Galaxy Gear S Smartwatch has been Samsung’s effort to 

force him into arbitration after he brought suit. That effort failed in the District Court, 

 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
3

but Samsung now appeals from the denial of its motion to compel arbitration in this

putative class action. It argues that a reference to arbitration located on the ninetyseventh page of the “Health and Safety and Warranty Guide” contained within the 

Smartwatch package is a binding contract under New Jersey law and therefore entitles it

to have Noble’s claims decided by an arbitrator. The District Court rejected that 

argument, and, because we do too, we will affirm. 

I. Factual Background1

Noble purchased his Samsung Smartwatch from an AT&T store after seeing 

advertisements saying that the device’s battery lasted 24 to 48 hours with typical use. 

But Noble’s Smartwatch battery lasted only about four hours, so he returned the 

Smartwatch and received a new one. The second Smartwatch suffered from the same 

battery problem, so Noble again went back to the AT&T store and, this time, was

directed to ship the Smartwatch to Samsung. Samsung then sent Noble a third 

Smartwatch with equally poor battery life. 

Inside each of the Smartwatch boxes that Noble received was a 3.1-inch by 2.5-

inch, 143-page document, titled “Health and Safety and Warranty Guide” (the “Guide”). 

The cover of the Guide directs the watch user to “[p]lease read this manual before 

operating your device and keep it for future reference.” (App. at 51.) The next eight

pages include numerous legal disclaimers and warnings, followed by a table of contents 

 

1 Given the stage of the proceedings, we recount this background based solely on 

Noble’s allegations. See Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 

771 (3d Cir. 2013) (explaining that a motion to compel arbitration filed after the 

complaint, but before discovery, should be considered under the Federal Rule of Civil 

Procedure 12(b)(6) standard). 
4

with three sections and many subsections. The table of contents indicates that “Warranty 

Information” begins on page eighty-six and includes a “Standard Limited Warranty”

(App. at 61), but nowhere is there mention of an agreement to arbitrate. The table of 

contents also references an index beginning on page 133, though, the index itself – like 

the table of contents – does not mention an agreement to arbitrate. 

On page ninety-seven of the Guide, there is a question in bold face type that reads

“What is the procedure for resolving disputes?” (App. at 156 (emphasis omitted).) 

Below that question is the following text:

ALL DISPUTES WITH SAMSUNG ARISING IN ANY WAY FROM 

THIS LIMITED WARRANTY OR THE SALE, CONDITION OR 

PERFORMANCE OF THE PRODUCTS SHALL BE RESOLVED 

EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, 

AND NOT BY A COURT OR JURY.

Any such dispute shall not be combined or consolidated with a dispute 

involving any other person’s or entity’s Product or claim, and specifically, 

without limitation of the foregoing, shall not under any circumstances 

proceed as part of a class action.

(App. at 156.) This purported arbitration clause (the “Clause”) continues through page 

102 and, in its final paragraph, states that consumers may opt-out of the “dispute 

resolution procedure by providing notice to SAMSUNG no later than 30 calendar days 

from the date of the first consumer purchaser’s purchase of the Product.” (App. at 159-

60 (emphasis omitted).) 

II. Procedural Background

Noble filed a Complaint in the United States District Court for the District of New 

Jersey on behalf of himself and others similarly situated, alleging six causes of action
5

based on (1) the New Jersey Consumer Fraud Act (“NJCFA”), (2) common law fraud, (3) 

negligent misrepresentation, (4) breach of an express warranty, (5) breach of the implied 

warranty of merchantability, and (6) unjust enrichment. All of those claims arise out of 

what is said to be Samsung’s “fraudulent and deceptive marketing and pricing” related to 

the battery life of the Smartwatch. (App. at 20.)

Samsung moved to compel arbitration on all of Noble’s individual claims and to 

dismiss his class claims, citing the Clause. The District Court held that Samsung had not 

provided reasonable notice of the arbitration provision and, consequently, Noble could 

not be treated as if he had assented to it. In short, there was no meeting of the minds and 

no binding contract under New Jersey law. Although the Court recognized that the Guide 

was readily available, the issue was whether the Clause itself was “readily ascertainable 

or unreasonably hidden.” (App. at 13.) The Court determined that the Clause was 

unreasonably hidden and that Samsung’s motion thus had to be denied. This timely 

appeal followed. 

III. Discussion2

“We exercise plenary review over questions regarding the validity and 

enforceability of an agreement to arbitrate.” Quilloin v. Tenet HealthSystem Phila., Inc., 

673 F.3d 221, 228 (3d Cir. 2012) (quoting Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 

177 (3d Cir. 2010)). When the merit, or lack thereof, in the affirmative defense of 

arbitrability can be discerned from the face of a complaint or documents that the 

 

2 The District Court had jurisdiction under 28 U.S.C. § 1332(d)(2) and 9 U.S.C. 

§ 4. We have jurisdiction to review the District Court’s denial of the motion to compel 

arbitration pursuant to 9 U.S.C. § 16(a)(1)(B). 
6

complaint relies on, a motion to compel arbitration can be resolved under the same kind 

of standard applicable to a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), without the inherent delay of discovery. Guidotti v. Legal Helpers Debt 

Resolution, LLC, 716 F.3d 764, 773-74 (3d Cir. 2013) (citation omitted). That is the case 

here, so the question is whether, accepting all factual allegations as true and construing 

the Complaint in the light most favorable to Noble, it is clear that Samsung is either 

entitled to arbitration or that it is not. In making that determination, we are permitted to 

“consider the substance of the contracts that ostensibly compel arbitration.” CardioNet, 

Inc. v. Cigna Health Corp., 751 F.3d 165, 168 n.2 (3d Cir. 2014) (citation omitted).

“[A] question of arbitrability arises only in two circumstances – first, when there is 

a threshold dispute over ‘whether the parties have a valid arbitration agreement at all,’ 

and, second, when the parties are in dispute as to ‘whether a concededly binding 

arbitration clause applies to a certain type of controversy.’” Puleo, 605 F.3d at 178

(quoting Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003)). We are concerned 

here only with the first of those alternatives, the question of validity. The validity of an 

arbitration agreement is determined under ordinary principles of state contract law, First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995), and it is undisputed that 

the operative state law in this instance is New Jersey’s.

3

 Under New Jersey law, a 

 

3 At oral argument, Samsung argued that the Clause is part of a written warranty 

and should thus be upheld under validity principles applicable to warranties, rather than 

bilateral contracts more generally. In New Jersey, “[a]ny affirmation of fact or promise 

made by the seller to the buyer which relates to the goods ... creates an express warranty 

that the goods shall conform to the affirmation or promise.” N.J. Stat. Ann. § 12A:2-

313(1)(a). The Clause is plainly not a warranty under New Jersey law. Therefore, 
7

binding contract requires four things: an offer and acceptance, consideration, a meeting of 

the minds, and sufficiently definite terms. Serrins & Assocs., LLC v. Hanover Direct, 

Inc., No. A-5629-11T4, 2014 WL 3928523, at *9 (N.J. Super. Ct. App. Div. Aug. 13, 

2014) (citing Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284 (N.J. 1992)). Noble and 

Samsung dispute whether there was a meeting of the minds, “an essential element to the 

valid consummation of any contract.” Ctr. 48 Ltd. P’ship v. May Dep’t Stores Co., 810 

A.2d 610, 619 (N.J. Super. Ct. App. Div. 2002).

A meeting of the minds, or mutual assent, “requires that the parties have an 

understanding of the terms to which they have agreed.” Atalese v. U.S. Legal Servs. 

Grp., L.P., 99 A.3d 306, 313 (N.J. 2014), cert. denied, 135 S. Ct. 2804 (2015). That 

necessarily requires reasonable notice to each contracting party of the contractual terms. 

Hoffman v. Supplements Togo Mgmt., LLC, 18 A.3d 210, 218 (N.J. Super. Ct. App. Div. 

2011). Once there is reasonable notice, a party is bound by those terms, even if he failed 

to read them. See Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 30 (2d Cir. 2002)

(applying California’s reasonable notice requirement); Hoffman, 18 A.3d at 218

(recognizing that California and New Jersey have identical reasonable notice 

requirements). But, “when the writing does not appear to be a contract and the terms are 

not called to the attention of the recipient,” there is no reasonable notice and the terms 

cannot be binding. Specht, 306 F.3d at 30. Therefore, contractual terms, including an 

 

Samsung’s argument is unavailing and ordinary contract formation principles apply. See

Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1288 (9th Cir. 2017) 

(distinguishing between “warranty law and contract law, which are governed by different 

sets of rules”). 
8

arbitration clause, will only be binding when they are “reasonably conspicuous,” id. at 

32, rather than “proffered unfairly, or with a design to conceal or de-emphasize its 

provisions.” Caspi v. Microsoft Network, L.L.C., 732 A.2d 528, 532 (N.J. Super. Ct. 

App. Div. 1999). Here, the document in which the Clause was included did not appear to 

be a bilateral contract, and the terms were buried in a manner that gave no hint to a 

consumer that an arbitration provision was within. See Specht, 306 F.3d at 30

(explaining that a reasonable consumer cannot be deemed to have consented to a writing 

that does not even appear to be a contract). 

More particularly, there was no indication on the outside of the Guide that it was a 

bilateral contract or included any terms or conditions. In fact, the cover of the Guide 

referred to itself only as a “manual.” (App. at 51.) Those facts alone distinguish this case 

from those in which shrinkwrap4 or clickwrap5agreements were found to be binding,

because those agreements clearly informed consumers that they were agreeing to certain

terms.

6

 With the Samsung Smartwatch, a consumer would open the package and find 

 

4 Shrinkwrap agreements, sometimes called “in-the-box contracts,” are terms 

included in a document inside the box that contains the purchased product. The failure to 

return the product after removing the plastic shrinkwrap from the box and unpacking the 

product may constitute assent to the terms. Schnabel v. Trilegiant Corp., 697 F.3d 110, 

121-22 (2d Cir. 2012). 

5 Clickwrap agreements are terms that appear on a consumer’s computer screen 

and to which a consumer can manifest assent by clicking on an icon indicating 

agreement. Hoffman v. Supplements Togo Mgmt., LLC, 18 A.3d 210, 219 (N.J. Super. 

Ct. App. Div. 2011).

6 See, e.g., Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th Cir. 1997) 

(product packaging contained stand-alone “statement of terms” that consumer admitted 

noticing); ProCD v. Zeidenberg, 86 F.3d 1447, 1450-52 (7th Cir. 1996) (product box 
9

only the Guide and an instruction to “[p]lease read this manual before operating your 

device and keep it for future reference.” (App. at 51.) The outside of the “Health and 

Safety and Warranty Guide” does not include any language indicating that bilateral 

contractual terms or conditions are inside, let alone an arbitration agreement.

7

 Nor does 

the table of contents provide a hint. It lists an “End User License Agreement for 

Software” beginning on page 105, but it includes no language to tell consumers to expect 

bilateral terms, such as a binding arbitration agreement, in the Guide. (App. at 61.) The 

index too is devoid of any reference to the Clause. 

Faced with a nearly identical case, the United States Court of Appeals for the 

Ninth Circuit rejected Samsung’s argument that an arbitration agreement was created by 

language tucked away in a brochure titled “Product Safety & Warranty Information.” 

The Court said that, “[b]ecause ‘an offeree ... is not bound by inconspicuous contractual 

provisions of which he was unaware, contained in a document whose contractual nature 

is not obvious,’ [the plaintiff] was not bound by the arbitration provision even if the inthe-box contract were otherwise enforceable under California law.” Norcia v. Samsung 

 

declared that binding terms were stated in an enclosed agreement and those terms 

appeared every time the program was used); Mortenson Co. v. Timberline Software 

Corp., 970 P.2d 803, 806 (Wash. App. 1999) (terms were printed on each disk envelope, 

inside the cover of the user agreement, and appeared on the computer screen every time 

the program was used), aff’d, 998 P.2d 305 (Wash. 2000); Caspi v. Microsoft Network, 

L.L.C., 732 A.2d 528, 532 (N.J. Super. Ct. App. Div. 1999) (plaintiffs clicked that they 

agreed to the terms); Feldman v. Google, Inc., 513 F. Supp. 2d 229, 237 (E.D. Pa. 2007) 

(plaintiff clicked agreement to notice entitled “terms and conditions”). 

7 Regardless of whether a warranty may be considered a type of contract – a 

question which we need not answer here – notice of a warranty does not, by itself, 

provide notice of an ensuing bilateral contract term, such as an arbitration clause. 
10

Telecomms. Am., LLC, 845 F.3d 1279, 1285 (9th Cir. 2017) (quoting Windsor Mills, Inc. 

v. Collins & Aikman Corp., 101 Cal. Rptr. 347, 351 (Cal. Ct. App. 1972)). 

Ultimately, the only manner in which a consumer could receive notice of the 

Clause at issue here would be to read ninety-seven pages into the Guide where the Clause 

appears, or to happen upon page ninety-seven by luck. While it may sometimes be

presumed that consumers agree to contractual provisions of which they are on notice,

8

that presumption is warranted only where there is a reasonable basis to conclude that 

consumers will have understood the document contained a bilateral agreement. Because 

the contractual provision here appears on the ninety-seventh page of a “Health and Safety 

and Warranty Guide” that gives no notice of something claiming to be a binding bilateral

agreement and waiver of legal rights, we will not presume that consumers read or had 

notice of that purportedly binding agreement.

9

 The District Court correctly concluded 

that there was no mutual assent here because Noble lacked reasonable notice of the 

arbitration provision. The Clause, in short, is not a valid contractual term. 

 

8 See, e.g., Carfaro v. Blue Haven Pools Ne., Inc., No. A-2803-13T3, 2015 WL 

1980705, at *5 (N.J. Super. Ct. App. Div. May 5, 2015) (upholding a forum selection 

clause where “[t]he provisions ... [we]re immediately viewable, on the reverse side of the 

sales contract”); Canon Fin. Servs., Inc. v. Eufaula Sch. Dist., No. A-2200-11T2, 2012 

WL 1989225, at *1-2 (N.J. Super. Ct. App. Div. June 4, 2012) (upholding a forum 

selection clause included in the last paragraph of a two-page lease agreement directly 

above where the plaintiffs had initialed the agreement). 

9 Samsung argues that the Clause was conspicuous because it appeared in all 

capitalized text. But “[t]he relative size of the disclaimer’s type face is irrelevant” when 

it is “designed in a manner that makes it unlikely that consumers would ever see it at 

all[.]” Hoffman, 18 A.3d at 219. 
11

IV. Conclusion

For the foregoing reasons, we will affirm the District Court’s order denying the 

motion to compel arbitration.