The specific provisions at issue state as follows:

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Article 1: Agreement to Arbitrate: It is understood that any dispute as to medical malpractice, that is, as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration pursuant to New York law, and not by a lawsuit or resort to court process except as New York law may provide for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration.

Article 2: All Claims Must Be Arbitrated: It is the intention of the parties that this agreement shall cover all claims or controversies whether in tort, contract or otherwise, and shall bind all parties whose bc data brazil claims may arise out of or in any way relate to treatment or services provided or not provided by the below identified physician, medical group or association, their partners, associates, associations, corporations, partnerships, employees, agents, clinics, and/or providers (hereinafter referred to as “Physician”) to a patient, including any spouse or heirs of the patient and any children, whether born or unborn, at the time of the occurrence giving rise to any claim. In the case of any pregnant mother, the term “patient” herein shall mean both the mother and the mother’s child or children.

The Court found this language to be ambiguous in a way that could not be resolved without exploration of the surrounding context. It therefore denied the motion to compel arbitration without prejudice and ordered the parties to engage in expedited discovery on the issue of arbitrability. Following this discovery, New Age could renew its motion, which would be decided on a summary judgment standard or, if necessary, tried.

Although the claim may ultimately end up in arbitration, New Age has to litigate the issue of arbitrability and faces an unnecessary risk of having a TCPA class action proceed in federal court. This conundrum can be avoided through the use of clear language explicitly stating that the arbitration provision applied to all claims of whatever nature.

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