Cox v. CoinMarketCap OpCo LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ryan Cox,
Plaintiff,
v.
CoinMarketCap OpCo LLC, et al.,
Defendants.
No. CV-21-08197-PCT-SMB
ORDER
The Court now considers CoinMarketCap OpCo., LLC’s (“CMC”) Motion to
Dismiss (Doc. 118) and Defendants BAM Trading Services Inc. d/b/a Binance.US’s
(“BAM”) Motion to Compel Arbitration and Motion to Dismiss (Doc. 119). The Court
rules as follows.
I. BACKGROUND
At a high level, Plaintiff Ryan Cox alleges that CMC and BAM unlawfully
suppressed the value of HEX cryptocurrency. (Doc. 112 at 1.) CMC is a cryptocurrency
price-tracking website and BAM is an affiliated cryptocurrency exchange. (Id.) Plaintiff
filed a First Amended Class Action Complaint (the “FAC”) alleging violations of the
Commodity Exchange Act (“CEA”), the Arizona Consumer Fraud Act (“ACFA”), and the
Sherman Act. (See Doc. 105.) The Court dismissed the FAC without prejudice. (Doc.
112.) Plaintiff thereafter filed a Second Amended Class Action Complaint (“SAC”) (Doc.
114), which reasserts violations of the ACFA and the Sherman Act and adds a variety of
state law claims. (See id.)
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II. CMC’S MOTION TO DISMISS
The Court begins with CMC’s Motion. CMC argues that the Court lacks personal
jurisdiction over CMC without the CEA claim. (Doc. 118 at 5.) The Court agrees.
“For a court to exercise personal jurisdiction over a defendant, there must be an
applicable rule or statute that potentially confers jurisdiction over the defendant.” Action
Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1177 (9th Cir. 2004) (citation
modified). “[A] federal court obtains personal jurisdiction over a defendant if it is able to
serve process on him.” Id. (citation modified).
Ordinarily, cases proceed under Federal Rule of Civil Procedure 4(k)(1)(A). See
Daimler AG v. Bauman, 571 U.S. 117, 125 (2014) (“Federal courts ordinarily follow state
law in determining the bounds of their jurisdiction over persons.” (citing Fed. R. Civ. P.
4(k)(1)(A))). In such cases “personal jurisdiction over a defendant is proper if it is
permitted by [the forum state’s] long-arm statute and if the exercise of that jurisdiction
does not violate federal due process.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154
(9th Cir. 2006). “Arizona exerts personal jurisdiction over a nonresident litigant to the
maximum extent allowed by the federal constitution.” LNS Enters. LLC v. Cont’l Motors,
Inc., 22 F.4th 852, 858 (9th Cir. 2022) (citation modified). Thus, in Arizona, courts “can
exercise personal jurisdiction if the defendant has sufficient contacts with the state ‘such
that the maintenance of the suit does not offend “traditional notions of fair play and
substantial justice.”’” Id. (emphasis added) (quoting Walden v. Fiore, 571 U.S. 277, 283
(2014)).
This case is unique because, until this point, personal jurisdiction was grounded in
Rule 4(k)(1)(C). Rule 4(k)(1)(C) provides that “[s]erving a summons . . . establishes
personal jurisdiction over a defendant . . . when authorized by a federal statute.”
Previously, Plaintiff asserted claims under the CEA, which permits “nationwide service of
process.” Cox v. CoinMarketCap OPCO, LLC, 112 F.4th 822, 833 (9th Cir. 2024). “In a
statute providing for nationwide service of process, the inquiry to determine minimum
contacts is whether the defendant has acted within any district of the United States or
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sufficiently caused foreseeable consequences in this country.” Id. at 834. On an earlier
appeal in this matter, the Ninth Circuit found that CMC had “sufficient contacts with the
United States to satisfy due process.” Id. However, Plaintiff no longer asserts claims under
the CEA.
Without the CEA claims, CMC contends that the Court must evaluate its contacts
with Arizona only rather than the United States generally. (Doc. 118 at 14–15.) CMC
argues that it does not have the requisite contacts with Arizona. (Id. at 15–16.) Plaintiff
does not expressly disagree with this latter point; instead, Plaintiff contends that personal
jurisdiction still exists because the Clayton Act § 12, like the CEA, “supplies the
nationwide-service hook for the Sherman Act Claims.” (Doc. 120 at 7 (citation modified).)
Section 12 of the Clayton Act provides:
Any suit, action, or proceeding under the antitrust laws against a corporation
may be brought not only in the judicial district whereof it is an inhabitant,
but also in any district wherein it may be found or transacts business; and all
process in such cases may be served in the district of which it is an inhabitant,
or wherever it may be found.
15 U.S.C. § 22. The Ninth Circuit has “held that the relevant forum with which a defendant
must have minimum contacts in a suit brought under Section 12 of the Clayton Act is the
United States.” Action Embroidery, 368 F.3d at 1180 (citation modified).
Nonetheless, CMC contends that “the Clayton Act’s service provision applies only
to corporations” and thus “does not apply to unincorporated entities, such as LLCs like
CMC.” (Doc. 124 at 9 (emphasis omitted).) The Court agrees.
“[T]ime and again courts have cabined Section 12’s applicability to corporations.”
GovernmentGPT Inc. v. Axon Enter. Inc., 769 F. Supp. 3d 959, 978 (D. Ariz. 2025)
(collecting cases). Indeed, in GovernmentGPT, the court expressly found that “[b]ased
upon the statute’s plain language, and the supporting persuasive case law, there is no
question that Section 12 does not apply to [LLCs].” Id. at 979. Accordingly, for claims
brought under the Clayton Act against LLCs, the question of “whether the Court has
personal jurisdiction . . . must be determined through a traditional minimum contacts
analysis.” Id.
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The Court previously conducted an extensive Arizona-minimum-contacts analysis
and determined that CMC has insufficient contacts with Arizona. (See generally Doc. 84.)
CMC argues that the SAC does not add any new allegations that materially impact that
analysis. (Doc. 118 at 15.) As noted, Plaintiff does not argue otherwise and only argues
that personal jurisdiction exists under a nationwide-contacts analysis. (Doc. 120 at 6–7.)
The Court agrees with CMC and sees no reason to reconduct an exhaustive
traditional minimum contacts analysis as to Arizona. Although the Ninth Circuit vacated
this Court’s previous Order, it did so based on CMC’s contacts with the United States. See
generally Cox, 112 F.4th 822. The Ninth Circuit found that the Arizona contact analysis
was inapplicable but did not otherwise opine on the propriety of that analysis. See id.
Given that Plaintiff does not argue that CMC has sufficient contacts with Arizona, the
Court’s previous analysis of CMC’s contacts with Arizona applies with equal force. In
short, the SAC does not allege that CMC specifically targeted Arizona or otherwise
purposefully availed itself of Arizona. Moreover, there is no allegation that CMC’s
conduct was tethered to Arizona in any meaningful way. At bottom, the “sole connection”
between this case and Arizona is that Plaintiff lives there; this is insufficient to establish
personal jurisdiction. See Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1145 (9th Cir. 2017).
Because personal jurisdiction does not exist for the Sherman Act claims, the Court
lacks personal jurisdiction over the other claims asserted against CMC. See Action
Embroidery, 368 F.3d at 1180 (“Personal jurisdiction must exist for each claim asserted
against a defendant.”). Indeed, the doctrine of pendent personal jurisdiction only applies
“to a claim for which there is no independent basis of personal jurisdiction so long as it
arises out of a common nucleus of operative facts with a claim in the same suit over which
the court does have personal jurisdiction.” Id.
Accordingly, CMC will be dismissed from this lawsuit with prejudice.
III. BAM’S MOTION TO COMPEL ARBITRATION
The Court turns next to BAM’s Motion to Compel Arbitration. The Court first
assesses whether a valid arbitration agreement exists among the parties. The Court then
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determines what version of that agreement applies here. Then, Court considers whether
the agreement delegates the threshold issue of arbitrability to an arbitrator. Finally, the
Court analyzes whether BAM waived its right to arbitrate.
A. Legal Standard
The Federal Arbitration Act (“FAA”) “governs arbitration agreements in
‘contract[s] evidencing a transaction involving commerce.’” Fli-Lo Falcon, LLC v.
Amazon.com, Inc., 97 F.4th 1190, 1193 (9th Cir. 2024) (alteration in original) (quoting 9
U.S.C. § 2)). The FAA “provides that written agreements to arbitrate controversies arising
out of an existing contract ‘shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract.’” Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (quoting § 2). “Because an arbitration
agreement is a contract like any other, it may be invalidated by generally applicable
contract defenses, such as fraud, duress, or unconscionability.” Bielski v. Coinbase, Inc.,
87 F.4th 1003, 1009 (9th Cir. 2023) (citation modified). “The FAA limits federal court
review of arbitration agreements to two gateway arbitrability issues: (1) whether a valid
agreement to arbitrate exists, and if it does, (2) whether the agreement encompasses the
dispute at issue.” Id. (citation modified).
However, “parties may delegate threshold arbitrability questions to the arbitrator,
so long as the parties’ agreement does so by ‘clear and unmistakable’ evidence.” Henry
Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 69 (2019) (quoting First Options
of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). If the arbitrability question has been
delegated to an arbitrator, it “limits the issues that a court may decide.” Fli-Lo Falcon, 97
F.4th at 1194 (citation modified). In such circumstances, a “court need not conduct further
inquiries beyond the existence of the arbitration agreement.” Id. Instead, “the only
remaining question is whether the particular agreement to delegate arbitrability—the
Delegation Provision—is itself unconscionable.” Brennan v. Opus Bank, 796 F.3d 1125,
1132 (9th Cir. 2015) (emphasis in original). Indeed, “if a valid agreement exists, and if the
agreement delegates the arbitrability issue to an arbitrator, a court may not decide the
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arbitrability issue.” Henry Schein, 586 U.S. at 69 (emphasis added).
B. Whether an Arbitration Agreement Exists
The Court first assesses whether a valid arbitration agreement exists between BAM
and Plaintiff. See Fli-Lo Falcon, 97 F.4th at 1194. “In determining whether the parties
have agreed to arbitrate a particular dispute, federal courts apply state-law principles of
contract formation.” Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 855 (9th Cir.
2022). The parties agree that California law governs this dispute. (Doc. 119 at 7; Doc.
121 at 13.)
“[E]lemental principles of contract formation apply . . . to contracts formed online.”
Berman, 30 F.4th at 855–56. “Thus, if a website offers contractual terms to those who use
the site, and a user engages in conduct that manifests her acceptance of those terms, an
enforceable agreement can be formed.” Id. at 856. “To avoid the unfairness of enforcing
contractual terms that consumers never intended to accept, courts confronted with online
agreements . . . have devised rules to determine whether meaningful assent has been
given.” Id. Absent a consumer having actual knowledge of an agreement, “an enforceable
contract will be found based on an inquiry notice theory only if: (1) the website provides
reasonably conspicuous notice of the terms to which the consumer will be bound; and
(2) the consumer takes some action, such as clicking a button or checking a box, that
unambiguously manifests his or her assent to those terms.” Id. These elements are met
here.
Plaintiff made a BAM account and, during the account creation process, Plaintiff
was required to a check a box that stated: “I am over age 18, and I agree to Binance.US
Terms of Use.” (Doc. 119 at 11; Doc. 121 at 9.) The phrase “Binance.US Terms of Use”
appeared in yellow and was a hyperlink that would bring users to the Terms. (Doc. 119
at 8; Doc. 121 at 9.) Plaintiff argues that “a generic terms-of-use checkbox with a buried
hyperlink and no notice that the Terms contained an arbitration clause—does not constitute
reasonably conspicuous notice . . . and the checkbox action does not constitute
unambiguous manifestation of assent to arbitration specifically.” (Doc. 121 at 9.)
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Plaintiff is mistaken. “[I]t is permissible to disclose terms and conditions through a
hyperlink” so long as the hyperlink is “readily apparent.” Berman, 30 F.4th at 857. To be
“readily apparent,” the hyperlink “must be displayed in a font size and format such that the
court can fairly assume that a reasonably prudent Internet user would have seen it.” Id.
This standard is met here.
As noted, the hyperlink was offset in a different color, it was “not hidden or
obscured,” “[t]he notice [was] clear and legible,” and the hyperlink otherwise “contrasted
against the surrounding white background and adjacent black text.” See Patrick v. Running
Warehouse, 93 F.4th 468, 477 (9th Cir. 2024). This is unlike Berman, wherein“the text
disclosing the existence of the terms and conditions was ‘printed in a tiny gray font
considerably smaller than the font used in the surrounding website elements, and indeed in
a font so small that it is barely legible to the naked eye.’” See Patrick, 93 F.4th
at 477(quoting Berman, 30 F.4th at 856–57).
Plaintiff assented to these terms. “A user’s click of a button can be construed as an
unambiguous manifestation of assent only if the user is explicitly advised that the act of
clicking will constitute assent to the terms and conditions of an agreement.” Berman, 30
F.4th at 857. This standard is met here because Plaintiff, to create a BAM account, had to
click a box that acknowledges: “I am over age 18, and I agree to Binance.US Terms of
Use.” (Doc. 119 at 11.)
Accordingly, Plaintiff assented to BAM’s Terms of Use.
C. What Version of the Arbitration Agreement Applies
The Court next determines what version of the Terms of Use apply. Here, Plaintiff
created his BAM Account in March 2020. (Doc. 119 at 12; Doc. 121 at 9.) The Terms of
Use were periodically updated, and BAM contends that the May 2023 version of the Terms
of Use applies here. (Doc. 119 at 14.) The Court agrees.
Here, Plaintiff does not dispute he received a May 2023 email from BAM with the
subject: “Updates to our Terms and Policies.” (Doc. 119-1 at 219.) The email reads in
pertinent part as follows:
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We are updating our Terms of Use and Privacy Policy, including our
Consumer Privacy Notice, with the changes taking effect on May 5, 2023.
As part of our commitment to offer you safe, secure, and reliable service, we
periodically review and update our Terms and Policies. The purpose of this
communication is to provide you greater transparency and clarity around
these updates. Notable changes include the following:
. . . .
We encourage you to familiarize yourself with these changes by reviewing
the updated Terms of Use and Privacy Policy. These updates will go into
effect for new customers immediately and existing customers on May 5,
2023.
By continuing to use the Binance.US platform from that date onward, you
agree and will be subject to our updated Terms of Use and Privacy Policy.
Customers who do not wish to agree to the updated Terms of Use and Privacy
Policy can close their Binance.US account at any time, as long as their
account is in good standing.
(Id.)
The phrases “Terms of Use” and “Privacy Policy” were hyperlinked in blue. (Id.) The
listed “notable changes” do not mention arbitration. (See id.)
This email was sufficient to put Plaintiff on inquiry notice of any updated terms. To
start, Plaintiff was required to submit his email when signing up for a BAM account, (Doc.
119 at 11), and thus “should have expected to receive relevant updates there while the
account was active.” Ireland-Gordy v. Tile, Inc., No. 25-403, 2026 WL 594859, at *3 (9th
Cir. Mar. 3, 2026). Moreover, the email is “clear and legible”; “[t]he subject line clearly
stated that [BAM] was updating its Terms”; and “the body contained a hyperlink to
the . . Terms in bold, blue text which contrasted against the white background.” See id.
And “[a]lthough the email did not say specifically that the arbitration agreement would be
updated, reasonable notice does not require the email to discuss every revision.” Id.
Plaintiff’s arguments to the contrary are thin. Plaintiff merely argues that “BAM’s
evidentiary submissions—the Miller Declaration’s characterizations of subject lines, body
text, and hyperlinks—are contested factual assertions a Rule 12 motion cannot resolve.”
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(Doc. 121 at 10.) Plaintiff goes on to argue that whether the May 2023 was sufficient to
put him on inquiry notice “are inquiries inappropriate for resolution before discovery and
an evidentiary hearing on formation.” (Id.) However, Plaintiff does not point to a genuine
dispute of fact that would preclude this Court from opining on the sufficiency of the May
2023 email. Plaintiff does not dispute that he received the email and he does not dispute
its contents. Thus, whether the May 2023 was sufficient to put Plaintiff on inquiry notice
of its contents is a legal question ripe for resolution. See, e.g., Ireland-Gordy, 2026 WL
594859, at *3.
D. Whether There is an Enforceable Delegation Provision
Finally, the Court considers whether the May 2023 Terms of Use delegate the
threshold question of arbitrability to an arbitrator. As indicated, “parties can agree to
arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to
arbitrate.” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010). The parties did so
here.
The May 2023 Terms of Use provide:
Delegation. Any dispute between BAM and You regarding the construction,
interpretation, or application of this arbitration provision, including the
enforceability, severability, revocability, scope or validity of this arbitration
provision, shall be decided by an arbitrator and not by a court or judge.
(Doc. 119 at 20; Doc. 119-1 at 214.) This provision “clearly and unmistakably” delegates
the issue of arbitrability to an arbitrator. See AT & T Techs., Inc. v. Commc’ns Workers of
Am., 475 U.S. 643, 649 (1986) (emphasis omitted). Thus, “the only remaining question is
whether the particular agreement to delegate arbitrability—the Delegation Provision—is
itself unconscionable.” Brennan, 796 F.3d at 1132 (emphasis in original).
A delegation provision is unconscionable if it is “so one-sided as to shock the
conscience.” Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1210 (9th Cir. 2016) (citation
modified). “Under California law, unconscionability has both a procedural and a
substantive’ element, the former focusing on oppression or surprise due to unequal
bargaining power, the latter on overly harsh or one-sided results.” See Gutierrez v.
FriendFinder Networks Inc., No. 18-CV-05918-BLF, 2019 WL 1974900, at *10 (N.D.
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Cal. May 3, 2019) (citation modified). “A contract must be both substantively and
procedurally unconscionable for a court to find the contract unconscionable.” Id.
“However, the procedural and substantive unconscionability need not be present in the
same degree. Essentially a sliding scale is invoked which disregards the regularity of the
procedural process of the contract formation, that creates the terms, in proportion to the
greater harshness or unreasonableness of the substantive terms themselves.” Id. (citation
modified).
Plaintiff makes a variety of unconscionability arguments, but the Court only
considers those arguments directed at the delegation provision. See Id. at *11 (“The Court
declines to address Plaintiff’s third argument because it is not specific to the delegation
provision.” (citation modified)). Regarding the delegation provision, Plaintiff argues that
it is an “adhesion contract presented without genuine opportunity to negotiate” and that
“the delegation clause strips courts of any gatekeeping role over arbitrability in favor of an
arbitrator chosen under a process BAM controls.” (Doc. 121 at 13.) Plaintiff’s arguments
are unavailing.
The Court begins with procedural unconscionability. Even accepting as true the
adhesive nature of the delegation provision, Plaintiff does not make any further arguments
regarding procedural unconscionability. Accordingly, there is only a slight degree of
procedural unconscionability here; “the Ninth Circuit has made clear that ‘the adhesive
nature of a contract, without more, would give rise to a low degree of procedural
unconscionability at most.’” Gutierrez, 2019 WL 1974900, at *10 (quoting Poublon v.
C.H. Robinson Co., 846 F.3d 1251, 1261–62 (9th Cir. 2017)). Accordingly, the delegation
provision can only be deemed unconscionable if there is a high degree of substantive
unconscionability. See id. at *10 (discussing the sliding scale approach to determining
unconscionability).
Again, regarding substantive unconscionability, Plaintiff argues that “the delegation
clause strips courts of any gatekeeping role over arbitrability in favor of an arbitrator
chosen under a process BAM controls.” (Doc. 121 at 13.) Frankly, Plaintiff describes the
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very purpose of a delegation provision, that is, to “delegate threshold arbitrability questions
to [an] arbitrator.” Henry Schein, 586 U.S. at 69. Courts are not stripped of “any
gatekeeping role” under these circumstances. Indeed, courts still must determine: whether
a valid arbitration agreement exists; whether that agreement contains a delegation
provision; and whether that provision is unconscionable. See id.
Moreover, Plaintiff does not cite any authority suggesting that an “arbitrator chosen
under a process BAM controls” renders the delegation provision unconscionable. Instead,
Plaintiff cites to Armendariz v. Foundation Health Psychare Services, Inc., 6 P.3d 669
(Cal. 2000) for the proposition that “lack of mutuality renders arbitration term
unconscionable.” (Doc. 121 at 13.) However, Armendariz stands for a narrower
proposition: “the doctrine of unconscionability limits the extent to which a stronger party
may, through a contract of adhesion, impose the arbitration forum on the weaker party
without accepting that forum for itself.” 6 P.3d at 118. Plaintiff does not argue that such
circumstances are implicated here.
Accordingly, the Court finds that the delegation provision is not unconscionable.
Thus, the threshold issue of arbitrability must be decided by an arbitrator and this Court
“may not decide [the] arbitrability question.” Henry Schein, 586 U.S. at 530.
E. Waiver
Finally, the Court addresses whether BAM waived its right to arbitrate. “Waiver of
the right to arbitration falls into the category of gateway questions that are presumptively
for courts to decide but can be delegated.” Ensambles Hyson, S.A. de C.V. v. Sanchez, 718
F. Supp. 3d 1258, 1270 (S.D. Cal. 2024). There is no argument that waiver has been
delegated. “[T]he test for waiver of the right to compel arbitration consists of two elements:
(1) knowledge of an existing right to compel arbitration; and (2) intentional acts
inconsistent with that existing right.” Hill v. Xerox Bus. Servs., LLC, 59 F.4th 457 468 (9th
Cir. 2023).
To start, the Court finds that BAM did not waive the right to arbitrate Counts 5, 8,
and 9—the newly asserted state law claims against BAM. (See Doc. 114.) Generally,
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courts find that even “a waived right to arbitration can be reasserted as to the newly added
claims.” Lackie Drug Store, Inc. v. OptumRx, Inc., 143 F.4th 985, 994 (8th Cir. 2025)
(collecting cases). In short, “[a] party cannot waive defenses to claims that have not been
asserted.” Id. at 995.
The Court also finds that BAM did not waive the right to arbitrate the ACFA claims
because it could not arbitrate those claims in the first instance. See Letizia v. Prudential
Bache Sec., Inc., 802 F.2d 1185, 1187 (9th Cir. 1986) (“[T]here could be no waiver here
because there was no existing right to arbitration.”). Until this point, the ACFA claims
were not predicated on any interaction between Plaintiff and BAM. Instead, the ACFA
claims were predicated on HEX trades; HEX is not traded on BAM. (Doc. 112 at 9.)
Accordingly, the Court dismissed the ACFA claims because there was not a “sale between
the parties.” (Id. (emphasis omitted) (quoting Williams v. TMC Health, No.
CV-23-00434-TUC-SHR, 2024 WL 4364150, at *5 (D. Ariz. Sep. 30, 2024) (citation
modified).) The SAC, for the first time, makes clear that “[t]he merchandise at issue . . . is
Binance Coin, which Plaintiff purchased on BAM’s exchange.” (Doc. 114 at 43.) Thus,
BAM did not waive the right to arbitrate the ACFA claims because those claims only
became arbitrable in the SAC.1
However, the Court finds that BAM waived any right to arbitrate the Sherman Act
claims.2 Unlike the ACFA claims, the Sherman Act claims remained similar between the
FAC and the SAC. BAM nonetheless contends that it lacked knowledge of its ability to
arbitrate because it “only knows what Plaintiff pleaded” and Plaintiff did not previously
plead or indicate that he had a BAM account. (Doc. 125 at 13.) BAM does not cite any
authority supporting this assertion. Instead, BAM cites Lackie and Forby v. one
Technologies, L.P. 13 F.4th 460 (5th Cir. 2021); but these cases stand for the more modest
1 Alternatively, courts recognize that even “a waived right to compel arbitration is
‘revived’” “when an amended complaint unexpectedly changes the scope or theory of the
plaintiff’s claims.” Lackie, 143 F.4th at 995 (citation modified) (collecting cases).
2 The Court questions whether the Sherman Act claims are arbitrable under BAM’s Terms
of Use. However, for the purposes of this Order, the Court assumes that the SAC’s
Sherman Act claims are arbitrable. Whether this assumption is correct is ultimately
immaterial because the Court concludes that arbitration is not appropriate.
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proposition that a party cannot waive arbitration as to unpled claims. See Lackie, 143 F.4th
at 995 (holding “that a waiver of arbitral rights only applies to claims that were actually
pled”). The cited cases do not establish that a party can only be charged with knowledge
of its own contractual relationships if those relationships are detailed in the pleadings.
Indeed, courts overwhelmingly impute knowledge of a contractual right to arbitrate the
contract’s drafter. See, e.g., Christian v. ABM Onsite Servs.-W., Inc., No. CV
16-8493-MWF(PLAX), 2017 WL 11632815, at *4 (C.D. Cal. June 8, 2017) (collecting
cases).
BAM still argues that “even if BAM knew that Plaintiff had a BAM account . . . ,
BAM did not know that Plaintiff asserted claims premised on use of his BAM account or
services that would trigger the arbitration agreement.” (Doc. 125 at 13.) This argument is
only convincing as to the ACFA claims. BAM does not separately explain how the
Sherman Act claims are premised on Plaintiff’s use of his BAM account. As noted, for the
purposes of arbitrability, the Sherman Act claims remain materially similar between the
FAC and the SAC.
Accordingly, the Court will compel arbitration as to all claims asserted against BAM
except for the Sherman Act claims—Counts 3 and 4.
IV. BAM’S MOTION TO DISMISS
The Court now considers BAM’s Motion to Dismiss as to the Sherman Act claims.
As a general matter, Plaintiff’s Response does not address BAM’s arguments as to the
Sherman Act. (See generally Doc. 121.) “In most circumstances, failure to respond in an
opposition brief to an argument put forward in an opening brief constitutes waiver or
abandonment in regard to the uncontested issue.” Stichting Pensioenfonds ABP v.
Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) (citation modified).
Indeed, this Court has noted that failure to address an argument that a claim should be
dismiss is “an independent basis for granting the motion to dismiss.” Simpson v. Mark E
Hall PC, No. CV-25-00081-PHX-SMB, 2025 WL 2531550, at *5 (D. Ariz. Sept. 3, 2025)
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(citation modified).3 Accordingly, the Court only briefly addresses the Sherman Act
claims.
A. Legal Standard
To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet
the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the
claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice
of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if it contains sufficient factual
matter, which, if accepted as true, states a claim to relief that is “plausible on its face.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal
“probability,” but requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’”
Id. (quoting Twombly, 550 U.S. at 557).
In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations
are taken as true and construed in the light most favorable to the nonmoving party. Cousins
v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as
3 Previously the Court—in dismissing the FAC’s Sherman Act claims against
BAM—declined to address arguments left uncontested by Plaintiff. (See Doc. 112 at 11.)
The Court specifically emphasized that “it is not the Court’s role to make arguments for
any party” and noted that it is may decline to “decide an issue not specifically briefed.”
(Id. (quoting Segura v. City of La Mesa¸647 F. Supp. 3d 926, 934 (S.D. Cal. 2022).)
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factual allegations are not given a presumption of truthfulness, and “conclusory allegations
of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence
outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States
v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider
materials—documents attached to the complaint, documents incorporated by reference in
the complaint, or matters of judicial notice—without converting the motion to dismiss into
a motion for summary judgment.” Id. at 908.
B. Discussion
Section 2 of the Sherman Act makes it unlawful to “monopolize, or attempt to
monopolize, or combine or conspire . . . to monopolize” a market. 15 U.S.C. § 2.
Monopolization claims have two elements: “(1) the possession of monopoly power in the
relevant market and (2) the willful acquisition or maintenance of that power as
distinguished from growth or development as a consequence of a superior product, business
acumen, or historic accident.” Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 998 (9th Cir.
2023) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966)). “The
second element requires that the plaintiff ‘show that the defendant acquired or maintained
its monopoly through “anticompetitive conduct.”’” AliveCor, Inc. v. Apple Inc., No.
24-1392, 2026 WL 61304, at *4 (9th Cir. Jan. 8, 2026) (quoting Verizon Commc'ns Inc. v.
L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004)). “Anticompetitive conduct
consists of acts that tend to impair the opportunities of rivals and do not further competition
on the merits or do so in an unnecessarily restrictive way.” Id. (citation modified).
Here, the SAC alleges that “[t]he relevant product market is the market for
cryptocurrency ranking and information services.” (Doc. 114 at 34.) It is apparent that the
Sherman Act claims are directed primarily towards CMC. (See generally id.) Indeed, the
Court previously dismissed the Sherman Act claims against BAM because there were not
any specific allegations detailing how BAM violated the Sherman Act. (Doc. 112 at 11.)
The SAC’s attempt to remedy this defect is unavailing. The SAC adds the following
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allegation:
BAM participated in the anticompetitive maintenance of CMC’s monopoly
through its own independent conduct as a separate economic actor in the U.S.
market. BAM is not alleged to have conspired with CMC. Rather, BAM is
independently liable under § 2 because it willfully participated in
maintaining CMC’s monopoly power through its own acts: (a) entering into
and maintaining a commercial arrangement under which BAM used CMC’s
manipulated rankings as its primary U.S. customer-acquisition tool;
(b) holding CMC out to U.S. consumers as an objective information source
while knowing or having reason to know of the manipulation; (c) profiting
from the increased trading volumes in Binance-affiliated tokens; and
(d) failing to require accurate rankings despite having the practical ability to
do so.
The Sherman Act claims against BAM are seemingly predicated on this lone allegation.
This allegation is far too conclusory to plausibly establish that BAM violated the
Sherman Act. In short, there are no allegations that BAM enjoyed a monopoly power in
the market for cryptocurrency ranking and information services. Again, BAM is not
alleged to have been a direct participant in the market for cryptocurrency ranking and
information services. Instead, it appears that Plaintiff claims that BAM violated the
Sherman Act based merely on its interactions with CMC. It is unclear—particularly given
the lack of briefing from Plaintiff—whether BAM can be exposed to Sherman Act liability
based on its use of CMC. Even if BAM could be, the SAC’s allegations on the matter are
far too scant for the Court to meaningfully understand the contours of this claim.
Given Plaintiff’s repeated failure to address the deficiencies of his Sherman Act
claims against BAM, the Court will dismiss this claim with prejudice.
V. CONCLUSION
Accordingly,
IT IS ORDERED granting Defendant CMC’s Motion to Dismiss (Doc. 118).
CMC is dismissed from the case with prejudice.
IT IS FURTHER ORDERED granting Defendant BAM’s Motion to Dismiss
(Doc. 119) as to Counts 3 and 4 only. Counts 3 and 4 are dismissed with prejudice.
IT IS FURTHER ORDERED granting Defendant BAM’s Motion to Compel
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Arbitration (Doc. 119) as to all remaining Counts asserted against BAM. The case is stayed
until arbitration is terminated. The parties are ordered to file a joint status report every 120
days until the arbitration is terminated. If the parties prefer to avoid this obligation, they
may stipulate to dismiss this action without prejudice and that the defendant waives any
statute of limitations defense based on the period the dispute is with the arbitrator.
Dated this 26th day of August, 2026.
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