At page 8 Determining scope of arbitration clauses through course of dealing25 citing casesWhere, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmation form which it either signed and returned or retai…
- In re Fairfield Sentry Ltd., 147 F.4th 136 (2d Cir. 2025).publishedOur precedents hold that a controversy may “relat[e] to” a contract for purposes of a dispute-resolution clause when the controversy arose out of a subsequent agreement between the parties and the “relationship” between the contract and th…
- U.S. Aprons, Inc. v. R-Five, Inc., 676 F. Supp. 2d 837 (D. Neb. 2009).publishedCo., Ltd., 189 F.3d 289, 296 (2d Cir.1999) (holding a nearly illegible arbitration clause on the reverse side of a purchase confirmation was binding on an experienced textile merchant who had purchased goods from the seller, using the same…
- Colorado-Arkansas-Texas Distrib., L.L.C. v. Am. Eagle Food Prods., Inc., 525 F. Supp. 2d 428 (S.D.N.Y. 2007).published(�’[Given] well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmati…)
- In re Cotton Yarn Antitrust Litig., 505 F.3d 274 (4th Cir. 2007).published“`[I]n industries such as fabrics and textiles . . . the specialized nature of the product has led to the widespread use of arbitration clauses and knowledgeable arbitrators”
- Atl. Textiles v. Avondale Inc., 505 F.3d 274 (4th Cir. 2007).published“[I]n industries such as fabrics and textiles ... the specialized nature of the product has led to the widespread use of arbitration clauses and knowledgeable arbitrators”
- Nobles v. Rural Cmty. Ins. Servs., 122 F. Supp. 2d 1290 (M.D. Ala. 2000).publishedSee Stedor Enter., Ltd. v. Armtex, Inc., 947 F.2d 727, 733 (4th Cir.1991); Pervel Indus., Inc. v. T M Wallcovering, Inc., 871 F.2d 7, 8 (2d Cir.1989); see also McDougle, 738 So.2d at 809 .
- E. Fish Co. v. South Pac. Shipping Co., 105 F. Supp. 2d 234 (S.D.N.Y. 2000).published(clause providing for arbitration of “any controversy ‘relating to’ ” a purchase and sale contract broad enough to cover claims stemming for an alleged collateral agreement to provide plaintiff with an exclusive distribu…)
- Chelsea Square Textiles, Inc. v. Bombay Dyeing & Mfg. Co., 189 F.3d 289 (2d Cir. 1999).published(holding that textile buyer was bound by purchase order confirmations containing an arbitration clause where buyer did not object to provision, in part on the ground that arbitration clauses are “widespread” in textile i…)
- In re CFLC, Inc., a Delaware Corp., Debtor. Expeditors Int'l of Washington, Inc. v. The Off. Creditors Comm., of CFLC, Inc., 166 F.3d 1012 (9th Cir. 1999).publishedThe New Moon court “extended this doctrine beyond prior dealings involving actual disputes to include evidence that a party has ratified terms by failing to object.” Id. (citing Pervel Indus. v. T M Wallcovering, Inc., 871 F.2d 7, 8 (2d Ci…
- Anchor Fish Corp. v. Torry Harris, Inc., 135 F.3d 856 (2d Cir. 1998).publishedCf. New Moon Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24, 30-32 (2d Cir.1997) (unob-jected to terms repeated in a number of written confirmations may, over time, become part of later contracts; however, an indication of the common und…
Show 15 more citing cases
- Huntington Int'l Corp. v. Armstrong World Indus., 981 F. Supp. 134 (E.D.N.Y. 1997).published In 1989, the Court of Appeals for the Second Circuit expressly rejected that argument, stating Where ... a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has…
- City & Cnty. of Denver v. Dist. Court ex rel. City & Cnty. of Denver, 939 P.2d 1353 (Colo. 1997).published Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245 , 251-52 (2d Cir.1991) (holding that a collateral agreement between the parties had a direct relationship to the original contracts between the parties and compelling ADR where the c…
- Akron Steel Fabricators Co. v. Krupp Plastics & Rubber Mach. (USA), Inc., 950 F. Supp. 836 (N.D. Ohio 1996).publishedId. at 8 (citations omitted).
- Tupman Thurlow Co. v. Woolf Int'l Corp., 3 Mass. L. Rptr. 252 (Mass. Super. Ct. 1994).publishedWallcovering, Inc., 871 F.2d 7, 8 (2d Cir. 1989).
- Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389 (8th Cir. 1994).published([wjhere, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each…)
- Hatzlachh Supply Inc. v. Moishe's Elec., Inc., 828 F. Supp. 178 (S.D.N.Y. 1993).published(party bound by arbitration provision where well established custom of sending purchase order confirmations containing an arbitration clause existed and buyer made numerous purchases over a period of time)
- Matter of Coastal Shipping & S. Petroleum, 812 F. Supp. 396 (S.D.N.Y. 1993).publishedAn agreement to consolidate may be implied by: (1) the language of the arbitration clause, see McDonell Douglas Finance Corp. v. Pennsylvania Power & Light Co., 858 F.2d 825 , 830 (2d Cir.1988); (2) the amendments or addenda to the agreeme…
- Drexel Burnham Lambert, Inc. v. Paul Mancino, Jr., 951 F.2d 348 (6th Cir. 1991).unpublished“Where, as here, a [seller] has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instanc…”
- Stedor Enter., Ltd. v. Armtex, Inc., 947 F.2d 727 (4th Cir. 1991).publishedPervel Indus., Inc. v. T M Wallcovering, Inc., 871 F.2d 7, 8 (2d Cir.1989) (citations omitted).
- David L. Threlkeld & Co. v. Metallgesellschaft Ltd. (London), 923 F.2d 245 (2d Cir. 1991).published See Mitsubishi, 473 U.S. at 624, n. 13 , 105 S.Ct. at 3352, n. 13 (clause providing for arbitration of all disputes “which may arise between [parties] out of or in relation to” distribution and sales contract was broad enough to cover fede…
- David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd. (London), & Peter Montrose, & Terry Willsone, Metallgesellschaft Ltd. (London), Defendant- Counterclaimant-Appellant v. David L. Threlkeld & Co., Inc., Counterclaim-Defendant-Appellee, 923 F.2d 245 (2d Cir. 1991).published See Mitsubishi, 473 U.S. at 624, n. 13 , 105 S.Ct. at 3352, n. 13 (clause providing for arbitration of all disputes "which may arise between [parties] out of or in relation to" distribution and sales contract was broad enough to cover fede…
- Salis v. Am. Exp. Lines, 566 F. Supp. 2d 216 (S.D.N.Y. 2008).published See Pervel, 871 F.2d at 8 (stating that where a seller “has a well-established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in eac…
- In re the Complaint of Moran Philadelphia, 175 F. Supp. 3d 508 (E.D. Pa. 2016).published(Where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each' i…)
- Well Luck Co. v. FC Gerlach & Co., 421 F. Supp. 2d 533 (E.D.N.Y. 2005).published(Where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each in…)
- Cherry River Music Co. v. Simitar Ent., Inc., 38 F. Supp. 2d 310 (S.D.N.Y. 1999).publishedThe Second Circuit has explained that a prior course of dealings material for contract purposes exists when the parties have a "well-established custom” established in “numerous purchases over a period of time.” New Moon Shipping Co. v. Ma…
At page 9 Distinguishing contract formation from exclusive distributorship arrangement7 citing cases“had no starting point, no finishing point and no subject matter.”
- Collins v. Int'l Dairy Queen, 990 F. Supp. 1469 (M.D. Ga. 1998).publishedThe metals contracts between Threlkeld and MG represent the subject matter of the alleged valuation agreements; absent the forward contracts, the valuation agreement “had no starting point, no finishing point, and no subject matter.” Id. a…
- City & Cnty. of Denver v. Dist. Court ex rel. City & Cnty. of Denver, 939 P.2d 1353 (Colo. 1997).published Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245 , 251-52 (2d Cir.1991) (holding that a collateral agreement between the parties had a direct relationship to the original contracts between the parties and compelling ADR where the c…
- Reliance Nat'l Ins. v. Seismic Risk Ins. Servs., Inc., 962 F. Supp. 385 (S.D.N.Y. 1997).published(compelling arbitration where relationship between exclusive distributorship and purchase contract containing arbitration clause was “clear and direct)
- David L. Threlkeld & Co. v. Metallgesellschaft Ltd. (London), 923 F.2d 245 (2d Cir. 1991).published See Mitsubishi, 473 U.S. at 624, n. 13 , 105 S.Ct. at 3352, n. 13 (clause providing for arbitration of all disputes “which may arise between [parties] out of or in relation to” distribution and sales contract was broad enough to cover fede…
- David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd. (London), & Peter Montrose, & Terry Willsone, Metallgesellschaft Ltd. (London), Defendant- Counterclaimant-Appellant v. David L. Threlkeld & Co., Inc., Counterclaim-Defendant-Appellee, 923 F.2d 245 (2d Cir. 1991).published See Mitsubishi, 473 U.S. at 624, n. 13 , 105 S.Ct. at 3352, n. 13 (clause providing for arbitration of all disputes "which may arise between [parties] out of or in relation to" distribution and sales contract was broad enough to cover fede…
- Infinity Indus., Inc. v. Rexall Sundown, Inc., 71 F. Supp. 2d 168 (E.D.N.Y. 1999).published(holding that arbitration agreement appearing on reverse side of printed confirmation form was binding on the parties)
- Dapuzzo v. Globalvest Mgmt. Co., L.P., 263 F. Supp. 2d 714 (S.D.N.Y. 2003).published
At page 7 “where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmation form which it either signed and returned or retain…”0 citing cases
Other citing cases
- (PS) Sprague v. Krause, No. 2:19-cv-02026 (E.D. Cal. Sept. 1, 2020).
- United States v. Miller, No. 13-822-cr (2d Cir. Dec. 16, 2015).published
- W.J. Nolan & Co. v. Midway Fed. Credit Union, 913 F. Supp. 806 (S.D.N.Y. 1996).published
- Overhead v. Standen Contr. Co. (Ohio Ct. App. 6th Dist. 2002).unpublished
- Transouth Fin. Corp. v. Bell, 149 F.3d 1292 (11th Cir. 1998).published
- Filanto, S.P.A. v. Chilewich Int'l Corp., 789 F. Supp. 1229 (S.D.N.Y. 1992).published
v.
T M WALLCOVERING, INC., Respondent-Appellant
T M Wallcovering, Inc. appeals from an order of the United States District Court for the Southern District of New York (Edelstein, J.) staying an action brought by T M against Pervel Industries, Inc. in Tennessee state court and directing the parties to proceed to arbitration. See 675 F.Supp. 867. We affirm.
Pervel is a manufacturer of fabrics and wallcoverings. T M is a distributor of Pervel's products. During the years that the parties dealt with each other, “numerous orders” were placed by T M with Perv-el. In each instance, Pervel followed its standard practice of returning a printed confirmation form, which contained the terms of the transaction, including a description of the product sold, the quantity, the price, the terms of payment, the routing and the consignee. The document was self-styled a “contract” and provided on its face that it was subject to the terms therein stated and those on the reverse side “including the provision for arbitration.”
The document also provided on its face that it should become a contract for the entire quantity specified when signed and returned, or “(b) when Buyer receives and retains this without objection for ten days or (c) when Buyer accepts delivery of all or any part of the merchandise ordered hereunder. ...” Although T M’s president avers that a “large majority” of these confirmation forms were not signed and returned to Pervel, it is undisputed that some of them were. Seven such documents, several of which were signed by T M’s president, are included in the record on appeal. We agree with the district court that there was a binding arbitration agreement between the parties.
Where, as here, a manufacturer has a well established custom of sending purchase order confirmations containing an arbitration clause, a buyer who has made numerous purchases over a period of time, receiving in each instance a standard confirmation form which it either signed and returned or retained without objection, is bound by the arbitration provision. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 845-46 (2d Cir.1987); Manes Organization, Inc. v. Standard Dyeing & Finishing Co., 472 F.Supp. 687, 690-91 n. 4 (S.D.N.Y.1979); In re Arbitration Between Baroque Fashions, Inc. and Scotney Mills, Inc., 19 A.D.2d 873, 874, 244 N.Y.S.2d 118 (1963) (mem.). This is particularly true in industries such as fabrics and textiles where the specialized nature of the product has led to the widespread use of arbitration clauses and knowledgeable arbitrators. See, e.g., In re Arbitration Between Helen Whiting, Inc. and Trojan Textile Corp., 307 N.Y. 360, 366-67, 121 N.E.2d 367 (1954); In re Arbitration Between Gaynor-Stafford Industries, Inc. and Mafco Textured Fibers, 52 A.D.2d 481, 485, 384 N.Y.S.2d 788 (1976); Imptex Int’l Corp. v. Lorprint, Inc., 625 F.Supp. 1572 (S.D.N.Y.1986). Thus, the arbitration clause in the instant case provides that the arbitration shall proceed “in accordance with the Rules then obtaining of the American Arbitration Association or the General Arbitration Council of the Textile Industry....” Cf. Trafalgar Square, Ltd. v. Reeves Brothers, Inc. 35 A.D.2d 194, 196, 315 N.Y.S.2d 239 (1970).
The arbitration clause also provides that it covers any controversy “relating to this contract.” It cannot be contended seriously that the amount of financial return which T M expected to receive from a contract to purchase Pervel goods bore no relationship to the purchase contract. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983); Peter Pan Fabrics, Inc. v. Kay Windsor Frocks, Inc., 187 F.Supp. 763, 764 (S.D.N.Y.1959). Neither Pervel nor T M is a philanthropic organization; both are in business to make money. If, in fact, Perv-el gave T M an exclusive distributorship with a covenant not to compete, it obviously was because both parties believed it would benefit them financially to do so. It would blink reality to hold that this desire for profit bore no relationship to the purchase contract.
[*9] Indeed, unless and until T M and Pervel entered into a contract for the purchase and sale of a particular Pervel product, the asserted exclusive distributorship arrangement for that product did not come into being; the arrangement had no starting point, no finishing point and no subject matter. It was at best an offer for a unilateral contract which was accepted, if at all, by T M’s purchase from a particular product line. The relationship between the contract of purchase and the exclusive distributorship which it created is clear and direct. The district court therefore correctly distinguished this case from Necchi S.p.A. v. Necchi Sewing Machine Sales Corp., 348 F.2d 693 (2d Cir.1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15 L.Ed.2d 664 (1966), upon which T M heavily relied.
For all the foregoing reasons, the order of the. district court is affirmed.