Last Updated: May 23, 2024
PLEASE READ THIS AGREEMENT CAREFULLY. IT REQUIRES YOU AND MONEYLION TO RESOLVE DISPUTES THROUGH ARBITRATION OR SMALL CLAIMS COURT ON AN INDIVIDUAL BASIS RATHER THAN JURY TRIALS, CLASS ACTIONS, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTIONS.
If you are a “Covered Borrower,” as defined by 32 C.F.R. § 232.3(g) as of the date that you agree to this Agreement, then this Agreement will not apply to you with respect to any Claims concerning any of our lending products or services, including our credit-builder loan.
Defined terms used in this Agreement are defined in section 2 below.
1. Summary
This Agreement for Resolving Disputes (“Agreement“) outlines how disputes concerning Claims between you and MoneyLion will be resolved through our Informal Dispute Resolution Procedure, individual arbitration, or small claims court. The Informal Dispute Resolution Procedure gives you the opportunity to explain what happened regarding your Claim to someone in, or working with, our legal department. Under the terms of this Agreement, MoneyLion is encouraged to resolve your concerns efficiently.
An “arbitration” is a less formal alternative to a lawsuit or jury trial in court. A neutral third party, called an arbitrator, decides the dispute. The arbitrator applies the same law and can award the same individualized remedies that a court could award but uses streamlined procedures and limits discovery to simplify the process and reduce costs. The arbitrator’s decision is legally binding and subject to very limited review by courts.
A “small claims court,” meanwhile, is a state court where legal claims that fall below a statutory threshold are adjudicated. The rules of evidence in small claims courts are typically informal, and litigants often appear without a lawyer. Judgments in small claims court carry the same weight as any trial court, and successful litigants are entitled to an array of judgment enforcement remedies.
YOU AND MONEYLION AGREE THAT ANY ARBITRATION THAT TAKES PLACE WILL BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, AND OTHER REPRESENTATIVE ACTIONS OF ANY KIND ARE NOT PERMITTED (UNLESS MONEYLION EXPRESSLY AGREES TO MASS ARBITRATION, AS DISCUSSED BELOW). THIS MEANS THAT YOU AND MONEYLION WILL NEITHER FILE A LAWSUIT IN ANY COURT OTHER THAN A SMALL CLAIMS COURT, NOR PURSUE OR PARTICIPATE IN AN ACTION SEEKING RELIEF ON BEHALF OF OTHERS.
YOU AND MONEYLION ALSO AGREE THAT BOTH PARTIES ARE WAIVING THE RIGHT TO A TRIAL BY JURY. YOU AND MONEYLION ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, YOU AND MONEYLION, AFTER HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF ANY DISPUTE ARISING OUT OF OR RELATED TO ANY CLAIMS. THIS JURY TRIAL WAIVER SHALL NOT AFFECT OR BE INTERPRETED AS MODIFYING IN ANY FASHION ANY SEPARATE ARBITRATION PROVISION ENTERED INTO BETWEEN YOU AND MONEYLION, WHICH MAY CONTAIN ITS OWN SEPARATE JURY TRIAL WAIVER.
While sections 3, 4, and 5 below lay out the specifics, here is an overview of the procedure you must follow to resolve a dispute relating to a Claim:
Contact customer service. You agree to first contact our customer service team. A phone call, chat session, or email with us is usually the quickest way to resolve an issue. Go to https://www.moneylion.com/contactus/ for more information on how best to contact us.
File a Notice of Dispute. If you are not satisfied after talking to customer service, you agree to start the mandatory Informal Dispute Resolution Procedure, discussed in section 3 below, by sending us a Notice of Dispute. You agree to follow the mandatory Informal Dispute Resolution Procedure before pursuing legal action in the form of an arbitration or small claims action.
Let’s work it out. If you decide to submit a Notice of Dispute, then you and MoneyLion agree to give each other at least 45 calendar days to share information and try to reach an agreement before commencing an arbitration or small claims action. (We will use the same process if we have a dispute with you.)
Pursue legal action. If the dispute is still not resolved, and only after the mandatory Informal Dispute Resolution Procedure has been fully satisfied, you can pursue an individual arbitration or small claims action. NAM (National Arbitration and Mediation) will administer the arbitration and appoint a neutral arbitrator, with input from both you and MoneyLion.
There are special rules for mass or coordinated arbitrations, where the same lawyers or a group of coordinated lawyers seek to file 25 or more similar arbitrations. If you choose to be part of those proceedings, the matters will proceed in stages, so it might take longer to arbitrate your dispute than it would otherwise. See section 4h below for more information on the rules governing coordinated or mass arbitrations under this Agreement.
2. Definitions
As used in this Agreement, the following terms have the meanings set forth below:
“MoneyLion,” “we,” “our,” or “us” means MoneyLion Technologies Inc. and all its past, present, and future parents, subsidiaries, affiliates, and related entities, including MoneyLion Inc., as well as all of MoneyLion’s directors, officers, employees, consultants, service providers, licensees, agents, predecessors in interest, successors, and assigns.
“You” or “your” means the individual authorized to use the MoneyLion Platform or MoneyLion’s products or services in accordance with MoneyLion’s Terms of Service. For the avoidance of doubt, you must be a natural person and not a corporation, company, partnership, association, or other entity or organization.
“Claim” means any past, present, or future dispute or controversy between you and MoneyLion, whether or not presently known, that relates in any way to your use of or access to the MoneyLion Platform or to any product or service offered by or through the MoneyLion Platform. Except as otherwise provided herein, “Claim” is to be given the broadest reasonable meaning and includes claims of every kind, including initial claims, counterclaims, cross-claims, and third-party claims, as well as claims based on any constitution, statute, regulation, ordinance, common law rule (including rules relating to
contracts, torts, negligence, fraud or other intentional wrongs) and equity. It includes disputes against MoneyLion (but not, for the avoidance of doubt, against a third party, including any third party that offers products and services on the MoneyLion Platform) that seek relief of any type, including damages or individual injunctive, declaratory, or other equitable relief. If you use a third-party product or service, you understand and agree to the third party’s terms and conditions and requirements. MoneyLion expressly disclaims all responsibility for any third-party product or service, which you elect to use at your own risk. You understand and acknowledge that any legal recourse you seek as a result of any deficiencies in the provision of a third-party product or service must be pursued against the provider of those third-party products or services and not against MoneyLion. No part of this Agreement shall prevent MoneyLion from (i) exercising or enforcing its rights under any present, past, or future agreements entered into between you and MoneyLion or that may otherwise govern your use of the MoneyLion Platform or MoneyLion’s products or services, including MoneyLion’s ability to terminate or suspend your account or access to any product or service due to a violation of our Terms of Service, liquidate your collateral in connection with non-payment of a loan, or report your payment history or other credit information to the credit bureaus; and (ii) pursuing any “self-help remedy,” including any steps taken to enforce rights without a determination by a court or arbitrator, or any individual action by you or MoneyLion to prevent the other party from using any self-help remedy, so long as such action does not involve a request for monetary relief of any kind.
“Informal Dispute Resolution Procedure” refers to the dispute-resolution protocol detailed in section 3 below that must be satisfied before either you or MoneyLion can commence an arbitration or small claims action.
“Informal Settlement Conference” refers to the individualized discussion by phone or videoconference regarding a potential settlement of a Claim, which only the recipient of a Notice of Dispute can request as part of the Informal Dispute Resolution Procedure.
“MoneyLion Platform” means the MoneyLion website, www.moneylion.com; any of its subdomains; other websites owned or hosted by MoneyLion, including Engine by MoneyLion, MoneyLion’s marketplace platform; and MoneyLion’s mobile application.
“Notice Address” refers to the physical address at which you can mail your Notice of Dispute to MoneyLion, which is MoneyLion Technologies Inc., c/o Customer Disputes, PO Box 1547, Sandy, UT 84091-1547.
“Notice of Dispute” refers to the form that must be completed and submitted by the party bringing a Claim as part of the Informal Dispute Resolution Procedure that provides the other party with important and necessary information about the Claim.
3. Mandatory Informal Dispute Resolution Procedure
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS KEY REQUIREMENTS THAT MUST BE SATISFIED BEFORE AN ARBITRATION OR SMALL CLAIMS ACTION CAN BE COMMENCED. NEITHER YOU NOR MONEYLION CAN COMMENCE AN ARBITRATION OR SMALL CLAIMS ACTION UNLESS THE INFORMAL DISPUTE RESOLUTION PROCEDURE OUTLINED IN THIS SECTION HAS BEEN FULLY SATISFIED.
Step 1: You and MoneyLion agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective, and mutually beneficial outcome. MoneyLion’s customer service is available to help and usually can resolve any concerns you may have. As the first step in the mandatory Information Dispute Resolution Procedure, you agree to contact our customer service team before submitting a Notice of Claim. For information on how to contact customer service, please go to https://www.moneylion.com/contactus/.
Step 2: If that does not work, and only after contacting MoneyLion customer service, you agree as a second step to submit a written Notice of Dispute to MoneyLion. (If we have a dispute with you, we will also send you a Notice of Dispute to your physical mailing address on file or email address if you have agreed to receive disclosures electronically, or if you are represented by an attorney, to your attorney at their office address or email address.) You may download and submit the Notice of Dispute form electronically here. The Notice of Dispute may also be sent by U.S. mail or professional courier service to MoneyLion at the Notice Address. While not required, we encourage you to submit your Notice of Dispute electronically for faster and easier processing.
The Notice of Dispute must include all of the information requested on the form, including (i) the claimant’s name, address, email and phone number; (ii) the last four digits of the claimant’s social security number and date of birth; (iii) the products or services (if any) to which the Claim pertains; (iv) a description of the nature and basis of the Claim; and (v) an explanation of the specific relief sought and the basis for the calculations. The Notice of Dispute must be personally signed by you (if you are the claimant) or otherwise authenticated by you if the Notice of Dispute is filed electronically, or by a MoneyLion representative (if we are the claimant). To safeguard your account, you might be required to provide both your authentication and consent for us to discuss your account or share your account information with a third party, including your attorney.
Step 3: Whichever party sends the Notice of Dispute must give the other party 45 calendar days after receipt of a completed Notice of Dispute (including your authentication and consent, if required) to investigate the Claim. The parties may at any time agree in writing to modify the 45-day period. During the 45-day period, you and MoneyLion agree that the recipient of the Notice of Dispute may request an individualized discussion by phone or videoconference regarding settlement (the “Informal Settlement Conference”). You and MoneyLion must work together in good faith to select a mutually agreeable time for the Informal Settlement Conference, which can be after the 45-day period. You and a MoneyLion representative must personally participate in the Informal Settlement Conference, unless otherwise agreed to in writing by both parties. If you are represented by an attorney, then your attorney must also be present at the Informal Settlement Conference. MoneyLion’s lawyers (if any) also can participate. These Informal Settlement Conferences shall be individualized; multiple parties initiating Claims (even if the Claims are related or raise similar issues and are brought by the same or coordinated counsel) cannot participate in the same Informal Settlement Conference, unless mutually agreed to by the parties.
Step 4: After the 45-day period and not before, and after the Informal Settlement Conference has occurred at the election of the recipient of the Notice of Dispute (if applicable) and not before, the party bringing the Claim must notify the other party in writing that it will pursue the dispute either through arbitration or small claims. The party receiving the written notice shall then have seven days to respond. After that seven-day period and not before, the party bringing the Claim may commence an arbitration or small claims action.
You and MoneyLion agree that compliance with the mandatory Informal Dispute Resolution Procedure set forth in this section 3 is a condition precedent to initiating arbitration or a small claims action. Any applicable limitations period (including statute of limitations) shall be tolled while the parties engage in the Informal Dispute Resolution Procedure. The Informal Dispute Resolution Procedure is essential so that you and MoneyLion have a meaningful chance to resolve disputes informally and efficiently. If any aspect of the Informal Dispute Resolution Procedure has not been met, a court can enjoin the filing or prosecution of an arbitration or small claims action. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with the Informal Dispute Resolution Procedure in arbitration or in a small claims action.
4. Arbitration
If the dispute is still not resolved, and only after the Informal Dispute Resolution Procedure set forth in section 3 above has been fully satisfied, you or MoneyLion can commence an individual arbitration (or a small claims action as set forth in section 5 below).
a. Right to Reject Arbitration
If you do not agree to arbitrate your dispute, you have 30 calendar days from the date that you agree to this Agreement to opt out of arbitration by delivering to us at MoneyLion Technologies Inc., Attn: Legal Department, PO Box 1547, Sandy, UT 84091-1547, a signed written opt-out notice that (i) provides your name and address and the date that you agreed to this Agreement, and (ii) states that you are rejecting the arbitration provision in this Agreement. If you want proof of the receipt of such a notice, you should send the rejection notice by “certified mail, return receipt requested.” If you use such a method, we will reimburse you for the postage upon your request. Nobody, other than an attorney that you have personally retained, can opt out of arbitration on your behalf. Your opt out of arbitration will not affect your access to or use of the MoneyLion Platform or any of our products or services or the terms of any agreement for any products or services (other than to the extent such terms incorporate this arbitration provision) or your ability to obtain credit from MoneyLion.
b. Subject Matter of Arbitration
If you or MoneyLion choose to arbitrate, to the greatest extent permitted by law, you and MoneyLion agree to arbitrate any Claim between you and MoneyLion. This arbitration provision is intended to be broadly interpreted and includes, but is not limited to:
- Claims arising out of or relating to any aspect of the relationship between us, whether based in contract; tort; fraud; misrepresentation; negligence; equity; or any constitutional, statutory, regulatory, or common law legal theory;
- Claims that arose before the existence of this or any prior agreement (including, but not limited to, Claims relating to advertising);
- Claims for mental or emotional distress or injury not arising out of physical bodily injury;
- Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Claims that may arise after the termination of this Agreement.
Nothing in this Agreement shall preclude you from bringing issues to the attention of federal, state, or local agencies. Those agencies can, if the law allows, seek relief against us on your behalf.
This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of this Agreement.
c. Arbitration Procedure
The arbitration will be governed by the applicable rules of NAM, including NAM’s Comprehensive Dispute Resolution Rules and Procedures, NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, and any other applicable rules promulgated by NAM (“NAM Rules”), as modified by this Agreement, and will be administered by NAM. If NAM is unavailable or unwilling to administer the arbitration, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by a court pursuant to 9 U.S.C. §5. Upon any conflict or inconsistency between this Agreement and NAM Rules, this Agreement will govern. NAM Rules are available online at https://www.namadr.com/resources/rules-fees-forms/ or by emailing NAM at [email protected].
You may initiate arbitration by visiting NAM’s website at https://www.namadr.com/resources/rules-fees-forms/ or by emailing NAM at [email protected]. A copy of the arbitration demand, along with a copy of the Notice of Dispute, must be submitted to NAM by email at [email protected] or by mail to 990 Stewart Avenue, 1st Floor, Garden City, NY 11530, as well as to MoneyLion by email at [email protected] or by mail to the Notice Address. For more information on how to commence an arbitration proceeding, including how to file a consumer arbitration online, please visit NAM’s website at https://www.namadr.com/.
You agree that if you are initiating arbitration against MoneyLion, you must submit and include with the demand for arbitration a certification that (i) you have complied with and completed the Informal Dispute Resolution Procedure set forth in section 3; (ii) you are a party to this Agreement; and (iii) you have or have had an account or relationship with MoneyLion during the time period relevant to your Claim(s). The demand for arbitration and certification must be personally signed by you (and your counsel, if represented) on an individual basis only and include the last four digits of your MoneyLion account number (if applicable). You agree that, unless prohibited by law, you may not commence an arbitration without completion of the certification as set forth in this paragraph. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with the procedures set forth in this paragraph in arbitration. For the avoidance of doubt, the full satisfaction of the procedures in this paragraph is a condition precedent to initiating arbitration.
As in court, you and MoneyLion agree that any counsel representing either party in arbitration certifies that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including a certification that the claim or the relief sought is neither frivolous nor brought for an improper purpose. The arbitrator is authorized to impose any sanctions available under NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law against all represented parties and counsel.
All issues are for the arbitrator to decide, except only a court can decide the following:
- Issues relating to the scope and enforceability of the arbitration provision described in this agreement; and
- Whether a dispute can or must be brought in arbitration (whether a dispute is subject to this agreement or a previous arbitration provision between you and MoneyLion).
The arbitrator may consider rulings in other arbitrations involving different customers, but an arbitrator’s ruling will not be binding in proceedings involving different customers.
The arbitration shall occur through the submission of documents to one arbitrator. If the arbitrator determines that a hearing is required, the arbitration shall be conducted remotely by telephone or video conference. If the arbitrator determines that an in-person hearing is required, the arbitration hearing will take place as close to your hometown as practicable. During the arbitration, the amount of any settlement offer must not be disclosed to the arbitrator until after the arbitrator determines the relief, if any, to which you or MoneyLion is entitled. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which their decision is based. Except in the case of mass or coordinated arbitrations, the arbitrator can award on an individual basis the same damages and relief that a court can award under applicable law in favor or against only the parties to the arbitration, including monetary damages, attorneys’ fees (if available under applicable law), injunctive relief, and declaratory relief and only to the extent necessary to provide relief warranted by that party’s individual Claim.
d. Arbitration Fees
If the terms of this Agreement have been complied with, including the Informal Dispute Resolution Procedure, and the arbitration was properly commenced, and there is no finding of any frivolous or improper Claims or requests for relief (as discussed below), then the parties are responsible for their own arbitration-related fees and costs, including attorneys’ fees, as required by NAM’s fee schedule. If you properly initiate an arbitration with a Claim valued at $5,000 or less (in the aggregate or for any one filing), or if you cannot obtain a waiver from NAM of the arbitration-related fees that you are obligated to pay, MoneyLion will consider—but is free to deny—a request by you for us to pay or reimburse such arbitration-related fees based on your good faith demonstration of financial hardship and adherence to this Agreement. Despite the foregoing, MoneyLion will pay your arbitration-related fees to the extent required by law or to make this Agreement enforceable. If MoneyLion reimburses your arbitration-related fees, we will do so within 60 calendar days from when you pay such fees to NAM.
But if the arbitrator finds that either the substance of your Claim or MoneyLion’s Claim or the relief sought by either party is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then, to the greatest extent permitted by law, the offending party shall pay the aggrieved party’s arbitration-related fees and costs, including attorneys’ fees. In addition, if either you or MoneyLion commence an arbitration before fully satisfying the Informal Dispute Resolution Procedure set forth in section 3 above, or if you commence an arbitration without the certification required under section 4(c) above, then the party who improperly filed the arbitration must pay the other party’s arbitration-related fees and costs, including attorneys’ fees. Despite the foregoing, neither party is entitled to any fees or costs that it incurs after the other party makes a written offer to resolve a Claim for more than the amount the arbitrator awards.
e. Minimum Award
If you fully complied with the terms of this Agreement, including the Informal Dispute Resolution Procedure set forth above in section 3 above, and the arbitrator issues an award in your favor that is greater than the value of MoneyLion’s last written settlement offer made in connection with the Informal Dispute Resolution Procedure, then we will pay you the amount of the award or $5,100, whichever is greater. This is in addition to any attorneys’ fees and expenses (including expert witness fees and costs) you are due under the law or this Agreement. This $5,100 minimum award is a single award for all your possible Claims. You cannot get multiple $5,100 awards.
f. Offer of Settlement
In any arbitration between you and MoneyLion, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, before the dispositive motion is decided. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim.
g. Requirement of Individual Arbitration
The arbitrator may award relief (including, but not limited to, damages, restitution, declaratory relief, and injunctive relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND MONEYLION AGREE THAT EACH MAY BRING A CLAIM AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING SEEKING RELIEF FOR OTHERS. You also agree to serve or otherwise submit an individualized arbitration demand that clearly identifies you, including your name, physical address, email address, phone number, and MoneyLion account number (if applicable); your legal claims; the requested relief; and, if represented by counsel, an express authorization to bring the arbitration demand. Further, unless both you and MoneyLion agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding (seeking relief for others).
h. Administration of Mass or Coordinated Arbitrations
If, at any time, 25 or more claimants (including you) submit Notices of Dispute or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities (whether such matters are pursued simultaneously or not), consistent with the definition and criteria of “Mass Filings” set forth in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, available at https://www.namadr.com/resources/rules-fees-forms/, you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) shall be tolled beginning when the Informal Dispute Resolution Procedure is initiated, so long as the pre-arbitration Notice of Dispute complies with the requirements in section 3 above, until your Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration. For the avoidance of doubt, the parties agree that, in addition to the scope of the procedural arbitrator’s review as set forth in NAM Rules, the procedural arbitrator shall have the authority to consider whether the Mass Filings or demand(s) for arbitration was/were filed in accordance with the terms and conditions of this Agreement, including full satisfaction of the Informal Dispute Resolution Procedure.
MoneyLion may elect to resolve all such Mass Filings in staged proceedings. The arbitrators are encouraged to resolve the matters within 120 calendar days of appointment or as swiftly as possible thereafter, consistent with fairness to the parties. You agree to this process even though it may delay the arbitration of your Claim.
Stage One: In the first stage, counsel for the claimants and counsel for MoneyLion shall each select 25 Claims per side (50 Claims total) to be filed and to proceed in individual arbitrations as part of a staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining Claims shall not be filed or be deemed filed in arbitration unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining Claims with a retired federal or state court judge, and MoneyLion shall pay the mediator’s fee.
Stage Two: If the remaining Claims are not resolved at this time, counsel for the claimants and counsel for MoneyLion shall each select 50 Claims per side (100 Claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agree to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining Claims shall not be filed or be deemed filed in arbitration unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining Claims with a retired federal or state court judge, and MoneyLion shall pay the mediator’s fee.
Stage Three: If the remaining Claims are not resolved at this time, counsel for the claimants and counsel for MoneyLion shall each select 100 Claims per side (200 Claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining Claims shall not be filed or be deemed filed in arbitration unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining Claims with a retired federal or state court judge.
Between stages, counsel will meet and confer regarding ways to improve the efficiency of the staged proceedings, including discussing in good faith whether to increase the number of matters filed in each stage. Either party may also negotiate with NAM regarding the amount or timing of NAM’s fees. You, in turn, agree to give your best efforts to participate in a meaningful way in the entire arbitration process, including by attending any preliminary and merits hearings, unless otherwise agreed to in writing by MoneyLion.
If your Claim is not resolved as part of the staged process identified above, either:
Option One: You and MoneyLion may separately or by agreement, opt out of arbitration and elect to have your Claim heard in court consistent with this Agreement. You may opt out of arbitration by providing your individual, personally signed notice of your intention to opt out by sending MoneyLion an email to [email protected]. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to opt out of arbitration within 30 calendar days after the conclusion of Stage 3 or the elective mediation associated with Stage 3. MoneyLion may opt your Claim out of arbitration by sending an individual, personally signed notice of its intention to opt out to your counsel within 14 calendar days after the expiration of your 30-day opt-out period. Counsel for the parties may agree to adjust these deadlines.
OR
Option Two: If neither you nor MoneyLion elect to have your Claim heard in court consistent with Option One, then you agree that your Claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining Claims exceeds 200, then 200 Claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining Claims is fewer than 200, then all of those Claims shall be filed and proceed in individual arbitrations. Any remaining Claims shall not be filed or be deemed filed in arbitration unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 200 Claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a procedural arbitrator) to explore ways to streamline the adjudication of Claims, increase the number of Claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining Claims.
A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations, and the assessment of arbitration fees. If these additional procedures apply to your Claim, and a court of competent jurisdiction determines that they are not enforceable as to your Claim, then your Claim shall proceed in a court of competent jurisdiction consistent with this Agreement.
You and MoneyLion agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and MoneyLion acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such Mass Filings.
This subsection and each of its requirements are intended to be severable from the rest of the arbitration requirements set forth in this Agreement. If, after exhaustion of all appeals, a court decides that the staging process in this subsection is not enforceable, then each Claim shall proceed in accordance with NAM Rules and fees.
i. Future Changes to Arbitration Provision
Despite any provision in this Agreement to the contrary, if MoneyLion makes any future change to the arbitration requirements set forth in this Agreement (other than a change to the Notice Address or any other non-substantive changes such as fixing typographical errors), you may reject any such change by sending us written notice via U.S. Mail within 30 calendar days of the first notice of the change to c/o Arbitrations Opt Out, PO Box 1547, Sandy, UT 84091-1547 or by email to [email protected]. Include your name, address, phone number, and a statement personally signed by you that you wish to reject the change to the arbitration provision. By rejecting any future change, you are agreeing that you will arbitrate any dispute between you and MoneyLion in accordance with the language of this version of the arbitration provision.
5. Small Claims
As an alternative to arbitration, either you or MoneyLion may bring an action seeking only individualized relief in the small claims court for the county (or parish) of your address on file, so long as the action is not removed or appealed to a court of general jurisdiction.
6. Forum Selection
Unless you and MoneyLion agree otherwise, to the greatest extent permitted by law, the state and federal courts in the City and County of New York, New York, will have exclusive jurisdiction over any disputes (except for disputes brought in small claims court) that are not subject to arbitration or over any action involving the applicability or enforceability of the arbitration provision or any of its parts. You and MoneyLion consent to the jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis or any right to seek to transfer or change venue of any such action to another court.
7. Effect of Arbitration Award
Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator’s award will be final and binding, except for (a) any appeal right under the Federal Arbitration Act, 9 U.S.C. §1, et seq.; and (2) Claims involving more than $50,000 (including Claims that may reasonably require injunctive relief costing more than $50,000). For Claims involving more than $50,000, any party may appeal the award to a three-arbitrator panel appointed by the administrator, which will reconsider anew any aspect of the initial award that is appealed. The panel’s decision will be final and binding, except for any appeal right under the Federal Arbitration Act. Costs in connection with any such appeal will be borne in accordance with Section 4 of this Agreement. No arbitration award involving the parties will have any preclusive effect as to issues or Claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Agreement.
8. Governing Law
This Agreement shall be governed by the laws of the State of New York, without regard to conflict of law principles. Any dispute that is not subject to arbitration, or any issues involving arbitrability or enforcement of any provisions under the arbitration agreement shall be brought in the appropriate state or federal court located in New York County, New York. You and MoneyLion each irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in the City and County of New York, New York, for the adjudication of all non-arbitrable Claims.
9. Survival; Severability; Primacy
The arbitration provision described herein shall survive termination of this Agreement, unless it has been rejected by you pursuant to the instructions provided in section 4(a). You must give us written notice and at least 30 calendar days to cure any problem that might prevent arbitration of a Claim. But if any portion of this Agreement is held to be invalid or unenforceable, the remaining portions will nevertheless remain in force, subject to two exceptions: (i) if a determination is made that the waiver of class actions, class arbitrations, and/or representative actions are unenforceable, and that determination is not reversed on appeal, then this Agreement (except for this sentence) will be void in its entirety; and (ii) if a court determines that a public injunctive relief Claim may proceed notwithstanding the waiver of class actions, class arbitrations, and/or representative actions, and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated, and you and MoneyLion will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded.
10. Entire Agreement and Precedence
This Agreement constitutes the entire agreement between you and MoneyLion with respect to the subject matter hereof (i.e., dispute resolution) and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties. In the event of any conflict or inconsistency between the provisions of this Agreement and those of any other agreement or understanding between the parties with respect to the subject matter hereof, the terms of this Agreement shall prevail and be binding. The parties acknowledge that they have not relied on any representation, warranty, agreement, or statement other than those expressly set out in this Agreement.
11. Confidentiality
You and MoneyLion agree to keep confidential all aspects of the arbitration, any confidential information produced in the arbitration, and any arbitration award or decision. But either party may disclose such information to the extent needed to pursue the arbitration or to appeal or confirm any award. Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the fullest extent permitted by law.
