United States District Court, D. Massachusetts
ORDER ON MOTION TO COMPEL ARBITRATION (DOC. NO.
Sorokin United States District Judge
Whoop, Inc. (“Whoop”) contracted with Defendants
Ascent International Group Co., Ltd. (“AI”) and
Ascent Batteries International, Inc. (“AB”),
collectively “Ascent, ” to manufacture batteries
for Whoop's fitness tracking devices. Whoop alleges that
some of the batteries overheated, thereby harming its
customers and their property. Whoop sued Ascent for breach of
contract, products liability, violation of chapter 93A, and
indemnification. Doc. No. 1-1 at 12-19. Ascent moved
to compel arbitration, asserting that the claims against it
fall within the scope of an arbitration provision contained
in the parties' contract. Doc. No. 12 at 1-2.
Whoop opposed. Doc. No. 15. For the reasons
discussed below, Ascent's motion to compel arbitration is
Whoop offers fitness tracking products that help
“individuals and teams perform at a higher
level.” Doc. No. 1-1 ¶ 2. Whoop has sued
four related manufacturers and sellers of the batteries
installed in these products,  claiming certain batteries it
purchased from the defendants were defective in various ways.
Id. at ¶¶ 2-10. Two defendants, AI and AB,
move to compel arbitration of the claims relating to
batteries described in a January 12, 2017, purchase order
(PAR-70018). Doc. No. 11. They say claims arising
from those batteries are subject to mandatory arbitration.
parties dispute whether the allegedly defective batteries
also came from other purchase orders. However, this dispute
is not presently before the Court since Ascent has only moved
to compel arbitration of the claims arising from batteries
produced under the January 12, 2017, purchase order. The
following facts bear mention with respect to that purchase
around February 2015, Whoop engaged Ascent to design battery
specifications and manufacture two different batteries for
its fitness bands-the “Kenmore” and
“Ortiz” batteries. Id. ¶ 25. The
specifications describe the batteries' technical details,
such as performance, safety testing, operating instructions,
and warranty period. Doc. No. 17-2 at 11-22. Based
on these specifications, Whoop placed various purchase orders
for Kenmore and Ortiz batteries between 2015 and 2017. Each
of these orders sought small numbers of batteries.
January 12, 2017, Whoop emailed purchase order PAR-70018 to
Ascent, requesting 7, 300 Kenmore batteries and 5, 200 Ortiz
batteries, both at a price of $3.38/unit with net
payment terms. Doc. No. 13-4 at 2-3. The purchase
order (“PO”) is addressed to AB and provides
Whoop's shipping address and requested delivery date.
Id. at 3. In the description column, the purchase
order specifies the type of battery ordered and includes the
PO to provide coverage for Ascent to begin work on order
immediately Volume pricing should be consistent with quote of
5/19 from Brett Kacura: 5k @ 3.375 USD, 10k @ 3.30 USD Awaiting
formal quote per Chas Esposito
Id. In its email accompanying the purchase order,
Whoop also instructs Ascent to “use this PO to begin
preparation of this material immediately.” Id.
at 2. Under “quote number, ” the purchase order
references Ascent's “[e]mail of 5/19, ” which
discusses volume pricing for large battery orders.
See Doc. No. 17-3 at 9. Neither the January
12, 2017, purchase order, Doc. No. 13-4 at 3, nor
the May 19 Brett Kacura email quote, id. at 2,
discuss any terms or conditions involving arbitration.
January 14, 2017, Ascent emailed quote #100183 to Whoop.
Doc. No. 26-1 at 2, 4. The email was sent from an AB
email address and the quote is on AI's letterhead. The
quote states that Ascent would sell 10, 000 Kenmore batteries
for $3.38/unit and 10, 000 Ortiz batteries for $3.51/unit
with net 10 payment terms. Id. at 4. The quote
further recites that “all quotes are subject to Ascent
International Group Co., Ltd. standard terms and conditions
of sale . . . Please go to the following link for complete
list of terms and conditions of sale
http://ascentbatteries.com/?pageid=630.” Id. The terms and
conditions linked in quote #100183 include the following
3. ACCEPTANCE OF BUYER'S ORDER.
Seller's terms and conditions herein apply to all Offers
made, and all Orders accepted, by Selle [sic] Seller's
acceptance of Buyer's Order, and any changes or
amendments thereto is strictly limited to and conditioned up
on Seller's terms and conditions. Unless otherwise agreed
in writing by a duly authorized representative of Seller,
Seller objects to and is not bound by terms or conditions
that differ from, add to, or modify Seller's terms and
conditions. . . . Unless Seller agrees otherwise, Buyer's
issuance of an Order in response to Seller's Offer shall
conclusively evidence Buyers unconditional acceptance of
Seller's terms and conditions irrespective of any
different terms and conditions Buyer may offer or include in
its Order. . . .
28. DISPUTES AND ARBITRATION. The
Parties shall attempt to resolve any dispute, controversy, or
claim arising under or relating to Seller's Offer or
buyer's Order, or to a material breach, including its
interpretation, performance, or termination. If the parties
are unable to resolve such dispute, either Party may refer
the dispute to arbitration. The arbitration shall be
conducted in English and in accordance with the Commercial
Rules of the American Arbitration Association, which shall
administer the arbitration and act as appointing authority.
The arbitration, including the rendering of the decision
and/or award, shall take place in Philadelphia, Pennsylvania
United States of America, and shall be the exclusive forum
for resolving the dispute, controversy, or c
Doc. No. 17-3 at 20, 27.
January 18, 2017, Whoop emailed Ascent to inquire whether the
prices listed in quote #100183 applied to smaller orders and
attached a revised purchase order. Doc. No. 13-5 at
2. The revised purchase order references Ascent's
quote #100183 and requests 7, 300 Kenmore for $3.38/unit and
5, 200 Ortiz batteries for $3.51/unit with net 30 payment
terms. Id. at 4.
February 8, 2017, Whoop emailed to inform Ascent that it had
inadvertently switched the requested quantities of the two
batteries in its January 18, 2017 revised purchase order.
Doc. No. 13-6 at 2. Whoop attached a second revised
purchase order requesting 5, 200 Kenmore batteries for
$3.38/unit and 7, 300 Ortiz for $3.51/unit with net 30
payment terms. Id. at 9. The February 8, 2017
purchase order is otherwise substantively identical to the
January 18, 2017 purchase order.
after February 8, 2017 (the record does not reflect the
specific date), Ascent sent Whoop sales order #300465 to
confirm Whoop's order for 7, 300 Ortiz batteries at a
price of $3.51/unit and 5, 200 Kenmore batteries at a price
of $3.38/unit, with net 30 payment terms. Doc. No. 14-4
at 2. The price, quantity, and payment terms exactly
matched the February 8 purchase order sent by Whoop. As with
quote #100183, the order confirmation is on AI's
letterhead and includes a link to terms and conditions of
sale involving a Philadelphia arbitration clause.
Id. Based on the record before the Court, neither
party sent any other forms regarding this order of batteries
after Ascent's sales order #300465.
fulfilled Whoop's order in two shipments on March 25,
2017, and April 8, 2017. Doc. No. 12 at 5. Both
shipments were accompanied by invoices (#500614 and #500637)
that contain links to terms and conditions involving a
Philadelphia arbitration clause. Doc. No. 17-3 at 17
and Doc. No. 14-3 at 2. Whoop accepted the batteries
shipped by Ascent.
one year later, on February 10, 2018, Whoop notified Ascent
of an issue with batteries overheating in Whoop's fitness
bands. Doc. No. 1-1 ¶ 32. After additional
testing, Whoop began recalling and replacing products with
the allegedly defective batteries. Doc. No. 17-1
January 31, 2019, Whoop filed an eight-count complaint in the
Massachusetts Superior Court alleging: breach of contract
(Count I), negligence (Count II), strict products liability
for defective design and failure to warn (Count III), breach
of implied warranties of merchantability and fitness for a
particular purpose (Count IV), breach of express warranty
(Count V), negligent interference with prospective economic
relations (Count VI), unfair and deceptive business practices
under Mass. Gen. Laws ch. 93A (Count VII), and implied
indemnity (Count VIII). Doc. No. 1-1. Ascent timely
removed the case to this Court. Doc. No. 1.
February 15, 2019, Ascent moved to compel arbitration in Hong
Kong, asserting that all of Whoop's claims are subject to
an arbitration provision contained in the parties'
contract. Doc. No. 12 at 1. Whoop opposed and
asserted that Ascent submitted an incorrect copy of quote
#100183 containing a link that was inoperative in January
2017. Doc. No. 15 at 22-23. Ascent conceded this
point and submitted a corrected exhibit (discussed above).
The correct link, which Ascent confirmed in its reply brief,
leads to terms and conditions requiring arbitration in
Philadelphia, not Hong Kong. Doc. No. 24 at 1. The
Court heard oral argument from the parties on April 12, 2019.