Alfia v. Coinbase Global, Inc.

Opinion

1 Evan Selik (SBN 251039) Christine Zaouk (SBN 251355) 2 McCATHERN LLP 3 523 West Sixth Street, Suite 830 Los Angeles, California 90014 4 (213) 225-6150 / Fax (213) 225-6151 5 eselik@mccathernlaw.com czaouk@mccathernlaw.com 6 7 Attorneys for Plaintiff, ADAM ALFIA 8 9 UNITED STATES DISTRICT COURT 10 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 ADAM ALFIA, individually and on ) CASE NO. 4:21-cv-08689-HSG 14 behalf of other persons similarly ) situated, ) PLAINTIFF’S MOTION FOR 15 ) LEAVE TO FILE A SUR-REPLY 16 Plaintiffs, ) TO DEFENDANT’S REPLY ) REGARDING ITS MOTION TO 17 vs. ) COMPEL ARBITRATION AND TO 18 ) STAY THE CASE; ORDER COINBASE GLOBAL, INC.; and ) 19 DOES 1 through 50 ) Date: April 14, 2022 20 ) Time: 2:00 p.m. Defendants. ) Dept.: 4th Floor, Courtroom 2 21 ) 22 ) Complaint Filed: November 8, 2021 ) Trial Date: None 23 ) 24 25 /// 26 /// 27 /// 1 Plaintiff, Adam Alfia, individually and on behalf of other persons similarly 2 situated, (“Alfia” or “Plaintiff”) respectfully move this Court for leave to file a Sur- 3 reply in response to Coinbase’s (“Coinbase” or “Defendant”) Reply papers submitted 4 5 in regards to its Motion to Compel Arbitration. New facts have developed since 6 Defendant filed its Reply on February 11, 2022. This, coupled with the arguments 7 made in Defendant’s Reply regarding unconscionability and the 2019 User 8 9 Agreement, should allow Plaintiff to file a Sur-reply of not more than five pages. 10 A district court may allow a sur-reply to be filed, but only “where a valid 11 reason for such additional briefing exists, such as where the movant raises new 12 13 arguments in its reply brief.” Hill v. England, WL 3031136 at *1 (E.D. Cal. 2005). 14 District courts have the discretion to either permit or preclude a sur-reply. 15 Garcia v. Biter, 195 F.Supp.3d 1131, 1134 (E.D. Cal. 2016). 16 17 Plaintiff satisfy this requirement. In its Reply, Defendant’s argue that the 18 delegation clause and the arbitration provision itself are not unconscionable because 19 Mr. Alfia “had a meaningful choice to use other exchanges or forgo digital currency 20 21 trading altogether. [Dkt. 23, p. 10:3-4]. New facts that have come to light within the 22 last week of this filing that show otherwise. Plaintiff intends to submit multiple 23 24 declarations from a Coinbase consumers who are being required to “consent” to and 25 “Updated User Agreement” and when they decline to do so, the consumers are locked 26 out of their accounts and cannot get back in until they consent. These consumers 27 1 have cryptocurrency (money) in their Coinbase accounts and are being locked out of 2 their accounts until they consent to an “Updated User Agreement”. 3 These consumers cannot just go to another exchange or forgo digital currency 4 5 because their money is in their Coinbase accounts. These consumers have no choice. 6 It is unconscionable and improper for Defendant to require a consumer to leave their 7 money placed in their Coinbase account and go somewhere else, unless they consent 8 9 to an “Updated User Agreement”. Coinbase has turned its purported arbitration 10 agreement in its “Updated User Agreement” in a contract of adhesion, a type of “take 11 it or leave it” contract. 12 13 A contract of adhesion is defined as “a standardized contract, imposed upon 14 the subscribing party without an opportunity to negotiate the terms.” Flores v. 15 Transamerica Homefirst, Inc., 93 Cal.App.4th 846, 853. A finding of a contract of 16 17 adhesion is essentially a finding of procedural unconscionability.” Id.; Circuit City 18 Stores, Inc. v. Adams, 279 F.3d 889, 893 (9th Cir.2002). 19 Second, in Defendant’s Reply it argues that both the 2017 and 2019 User 20 21 Agreements compel Mr. Alfia to arbitrate. If true, why is Coinbase asking its 22 consumers to consent to an “Updated User Agreement” with an arbitration provision? 23 24 /// 25 /// 26 /// 27 1 For these reasons, Plaintiff respectfully requests leave to file a Sur-reply of n more than five page. 4 5||Date: March 22, 2022 McCATHERN, LLP By: /s/ Evan Selik 8 Evan Selik 9 Christine Zaouk Attorneys for Plaintiffs, 10 ADAM ALFIA 1] 12 13 ORDER + KES DISTRI} 14 b> SS <0 15|| DATED: 3/23/2022 KE) A) □ by > 16 > DENIED

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