How much of a written contract do you need to preserve electronically / Vivint sued for home burglary / ISC private meeting / Party Invitation November 3, 2025

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
You can read all of our articles on our website. Having trouble getting our emails?  Change your spam controls and whitelist ken@kirschenbaumesq.com 
****************************** 
How much of a written contract do you need to preserve electronically / Vivint sued for home burglary / ISC private meeting / Party Invitation 
November 3,  2025
********************************
You're invited:  K&K 2025 HOLIDAY PARTY WILL BE ON DECEMBER 4, 2025  6 PM  Old Westbury, NY.  RSVP only if coming with Kathleen Lampert at 516 747 6700 x 319 or KLampert@Kirschenbaumesq.com or Diana Henriquez at 516 747 6700 x 328 or email dhenriquez@kirschenbaumesq.com.  Space limited so be sure to RSVP if coming asap
*********************************
Private meetings at ISC EAST
*********************************
  We are getting closer to ISC so if you're attending an want to make the time to meet please reserve an appointment time sooner than later.  
To arrange a private meeting with K&K and staff at ISC East on November 19 or 20 please contact Kathleen Lampert at 516 747 6700 x 319 or KLampert@Kirschenbaumesq.com or Stacy Spector,Esq at 516 747 6700 x 304 or SSpector@Kirschenbaumesq.com.  We are planning half hour appointments between 10:30 and 4:30 on November 19 and 20.  If you think you need more time let us know.  We look forward to seeing you at ISC; meetings will be outside the hall at the food court area.
************************
How much of a written contract do you need to preserve electronically / Vivint sued for home burglary
************************
    Clients often ask whether they need to keep an entire contract when preserving paper contracts electronically.  Even large companies for some reason sometimes reduce contracts in size or don't preserve entire contracts when executed electronically.  Generally the best practice is to preserve the entire contract, including pages that may be part of your standard form that aren't signed or are modified.  The reason for this should be obvious; you never know which part of the contract is going to be the focus of attention when a dispute arises.  All of the provisions have meaning and all of the provisions are there for a reason, even those, maybe especially those, that you consider pro forma boilerplate.  Just because you see them in many if not most agreements doesn't mean they are not essential; usually to the contrary.
    Vivint was sued for a home burglary and made a motion to compel the dispute to be arbitrated.  There are no real facts discussed in the case other than it appears Vivint couldn't find the contract signed by the customer.  Since an arbitration provision needs to be established before a party can be compelled to arbitrate a dispute the agreement, and the arbitration provision, was an issue.  Vivint was able to establish that it had pictures of parts of the contract so the court accepted as fact that the contract had been signed.  This was helped in no small measure by the subscriber [plaintiff] claiming he didn't recall signing a contract.
    The entire case follows:
******************
2025 WL 2771568
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Pratik KHOWALA, Plaintiff, v. VIVINT SMART HOME, INC. and Vivint, Inc., Defendants.
23 Civ. 1068 (AT)
Signed September 29, 2025
ORDER
ANALISA TORRES, District Judge:
*1 Plaintiff, Pratik Khowala, brings this action against Defendants, Vivint Smart Home, Inc. and Vivint, Inc. (collectively, “Vivint”), alleging negligence, products liability, and breach of contract claims following a burglary at Khowala's home. Compl. ¶¶ 1, 22–42, ECF No. 1; see generally id. By order dated August 1, 2024, and on a limited evidentiary record, this Court denied Vivint's first motion to compel arbitration under the Federal Arbitration Act (“FAA”) without prejudice to renewal, on the basis that Vivint had not produced enough evidence to suggest that an arbitration agreement had been formed between the parties. See First Mot., ECF No. 17; Order Denying Mot. at 4–6, ECF No. 25. The Court then opened limited jurisdictional discovery into the question of whether the parties had entered into an arbitration agreement. See Order Denying Mot. at 9.
Vivint now renews its motion to compel arbitration, arguing that the evidence shows that Khowala signed a System Purchase and Services Agreement in 2016 (the “2016 PSA”). See Def. Mem. at 1, ECF No. 30; see also 2016 PSA, ECF No. 30-2. Khowala opposes, contending that the evidence consists only “of a notation in [Vivint's] records ... that someone signed the 2016 PSA,” rather than Khowala. See Pl. Mem. at 4–5, ECF No. 32. For the reasons stated below, Vivint's motion to compel arbitration is GRANTED.
BACKGROUND
The Court assumes familiarity with the facts underlying this action. See Order Denying Mot. at 2–4. In brief, Khowala alleges that Vivint's negligence in installing Vivint's security system in Khowala's home caused the system to fail to alert law enforcement officers when his home was burglarized in 2022. See id. at 1–2. Vivint argues that the 2016 PSA requires arbitration of the instant dispute and that Khowala either signed the 2016 PSA or “reaffirmed” it in his subsequent dealings with Vivint. See Def. Mem. at 8.
Vivint's renewed motion cites numerous exhibits that were not produced as part of its first motion, including a set of screenshots of “Salesforce,” an online software that Vivint uses to manage customer data, and a business record concerning Vivint's “Post-Install Survey,” a survey that an off-site Vivint technician typically conducts with new customers at the time of Khowala's service installation. See Brothers Dep. 17:4–11, 46:2–15, ECF No. 32-4; compare generally Brothers Decl., ECF No. 30-1, with First Brothers Decl., ECF No. 17-1. The Salesforce records include three screenshots of Vivint's Salesforce interface, the first of which contains several “billing details,” Khowala's name, and an entry of “8/29/2016 2:52 PM” in a field marked “Digital Contract Signed Date.” ECF No. 30-3 at 1. The second screenshot contains Khowala's name as an entry in a field marked “Contract Signer,” ECF No. 30-4 at 1, and the third screenshot lists Khowala's “Original Service Activation Date” as August 29, 2016, at 2:59 p.m., ECF No. 30-6 at 1. The Post-Install Survey data reports Khowala's “Survey Pass Date” as 2:50 p.m. on August 29, 2016. ECF No. 30-5 at 1, Brothers Decl. ¶ 10. As relevant here, the parties dispute the deposition testimonies of Khowala, Khowala Dep., ECF No. 32-3, and Bryan Brothers, a Vivint employee who currently serves as Director of Service Revenue and previously served as Director of Account Creation, Brothers Decl. ¶ 3, and the significance of a series of Vivint “Work Orders” that record technician visits to Khowala's home, ECF No. 32-2.
DISCUSSION
I. Legal Standard
The FAA provides that arbitration agreements in contracts involving interstate commerce “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The statute reflects a “federal policy favoring arbitration” and the “fundamental principle that arbitration is a matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quotation marks omitted).
Under the FAA, parties can petition a district court for an order directing that “arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. The district court must stay proceedings and direct the parties to proceed to arbitration once it is “satisfied that the parties have agreed in writing to arbitrate an issue or issues underlying the district court proceeding.” WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir. 1997) (quoting McMahan Sec. Co. v. Forum Cap. Mkts. L.P., 35 F.3d 82, 85 (2d Cir. 1994)); Alonso v. Maggies Paratransit Corp., 203 F. Supp. 3d 244, 246 (E.D.N.Y. 2016); see 9 U.S.C. §§ 3, 4.
To determine whether parties have agreed to arbitrate a dispute, courts first consider whether an arbitration agreement was actually formed, a question governed by state law: here, the law of New York. See Spinelli v. Nat'l Football League, 96 F. Supp. 3d 81, 99 (S.D.N.Y. 2015); Meyer v. Uber Techs., Inc., 868 F.3d 66, 73–74 (2d Cir. 2017); Barrows v. Brinker Restaurant Corp., 36 F.4th 45, 50 (2d Cir. 2022) (“[W]e resolve such agreement-formation questions as we would most any contract dispute: by applying the law of the state at issue.”); Order Denying Mot. at 3 & n.1.1 The “initial burden of demonstrating that an agreement to arbitrate was made” lies with the party seeking to compel arbitration. Zachman v. Hudson Valley Fed. Credit Union, 49 F.4th 95, 101–02 (2d Cir. 2022).
In evaluating factual disputes relevant to a motion to compel arbitration, courts must apply a “standard similar to that applicable for summary judgment.” Bensadoun v. Jobe-Riat, 316 F. 3d 171, 175 (2d Cir. 2003). Accordingly, in assessing Vivint's motion to compel arbitration, this Court must “consider all relevant, admissible evidence ... [and] draw all reasonable inferences in favor of [Khowala].” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016). If there then remains any “issue of fact as to the making of the agreement for arbitration,” the FAA requires that the non-movant is entitled to a jury trial. Bensadoun, 316 F.3d at 175 (citing 9 U.S.C. § 4); Nicosia, 834 F.3d at 229. On the other hand, if “undisputed facts in the record require the matter of arbitrability to be decided against one side or the other as a matter of law,” a court may compel arbitration and “avoid the need for further court proceedings.” Meyer, 868 F.3d at 74.
II. Analysis
In its motion, Vivint argues that the 2016 PSA requires arbitration of the instant dispute, either because new evidence revealed during the limited discovery shows that Khowala did sign the 2016 PSA, or because Khowala “reaffirmed the 2016 PSA” when he extended his service contract with Vivint in 2021. Def. Mem. at 2. The Court finds that the undisputed facts in the record show that Khowala signed the 2016 PSA, and therefore does not address Vivint's arguments concerning whether Khowala “reaffirmed” the PSA.
*3 Vivint's argument that Khowala executed the 2016 PSA largely rests on four additional documents produced during discovery, along with information contained in the Brothers declaration concerning Vivint's business practices when onboarding a new customer. See Def. Mem. at 14–16; Brothers Decl. ¶¶ 3–5, 7 (explaining that Brothers was Director of Account Creation in 2016). Taken together, this evidence tells a simple story. The declaration states that, at the time of the installation of Khowala's security system, Vivint's “business practice was for the Vivint technician at the customer's home to initiate the survey by calling another Vivint employee offsite,” then “hand his or her phone to the customer so the customer could speak with the Vivint employee.” Brothers Decl. ¶ 10. The declaration adds that Brothers is “very familiar with the processes” that the offsite Vivint employee would use on the call, and that the employee would begin the Post-Install Survey with questions “about the customer's personal passcode – information that only the customer would know,” and later confirm that the customer either had signed or was about to sign the PSA before marking the survey as “pass[ed].” Id. Vivint's undisputed records show that Khowala's survey was marked “pass[ed]” at 2:50 p.m., and that the PSA was recorded as signed at 2:52 p.m. ECF Nos. 30-3, 30-5.
Khowala does not dispute the authenticity of Vivint's Salesforce records, nor the accuracy or reliability of the Brothers declaration, see Pl. Mem. at 12–4 (discussing the Post-Install Survey). Nor does Khowala dispute Vivint's assertion that Vivint would not have started service had its Post-Install Survey not been recorded as “pass[ed]” in its systems. Pl. Mem. at 6; Brothers Decl. at 2. Instead, Khowala argues that certain documents, combined with his deposition testimony, show that a Vivint technician forged his signature on the 2016 PSA. Pl. Mem. at 6–8 (“Danny Urena—and not Plaintiff Pratik Khowala—signed the 2016 PSA.”).2 In support of this, Khowala points to the “Work Orders” produced at his deposition, noting that he recognized his wife's signature and his own signature on certain orders, Khowala Dep. at 72:6–11, 73:13–15, 99:3–6; Work Orders, ECF No. 32-2 at 9–10, 12–14, but that he does not recognize the signatures provided on three Work Orders related to maintenance performed by a Vivint technician named Danny Urena. See Khowala Dep. at 71:14–74:6, 98:7–102:11; Work Orders at 2, 4, 8. Khowala appears to acknowledge, however, that his claim that Urena “himself signed the 2016 PSA with his finger on his iPad” ultimately rests on conjecture, not direct evidence. See Pl. Mem. at 9.
Yet Khowala fails to rebut any of the evidence concerning Vivint's Post-Install Survey, and does not show how a jury could make a “reasonable inference” that the Post-Install Survey was marked “pass[ed]” due to fraud on the part of multiple Vivint employees. See generally Pl. Mem. Nothing in Khowala's submissions or deposition testimony raises a question concerning the credibility, or reliability, of Vivint's documentary records and context provided by Brothers's testimony. See generally id. As a result, according Khowala the benefit of every reasonable inference, the evidence is insufficient to create a genuine issue of fact.
Indeed, courts in this Circuit have held that a party does not automatically create a triable issue of fact by merely stating that he “does not remember whether he signed the document” – and Khowala only testified in his deposition that, although he remembers an installation visit, he did not recall signing any agreement. See Khowala Dep. at 42:24–44:25 (concerning the visit), 61:8–12 (“To the best of my recollection, I did not sign.”); see Vardanyan v. Close-Up Intern., Inc., 315 F. App'x 315, 318 (2d Cir. 2009), aff'g No. 06 Civ. 2243, 2007 WL 4276670 (E.D.N.Y. Nov. 30, 2007). Although a categorical denial may suffice to create such an issue, a statement that a party “cannot recall signing an agreement (as opposed to denying [they] ha[ve] done so)” is insufficient standing alone. See Barrows v. Brinker Rest. Corp., 36 F.4th 45, 51 (2d Cir. 2022). And, where “evidence demonstrates that [a party] could not have proceeded to use” another party's services “unless they accepted” an alleged agreement, that evidence “renders ... failing memories irrelevant.” Kutluca v. PQ N.Y. Inc., 266 F. Supp. 3d 691, 702 (S.D.N.Y. 2017).
*4 Likewise, “a party normally does not show the existence of a genuine issue of fact ... merely by making assertions that are based on speculation or are conclusory.” S. Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877 (2d Cir. 2011) (per curiam) (citation omitted). Khowala has no response to Vivint's argument that the Post-Install Survey shows that he signed the agreement, except to make vague and conclusory allegations of fraud and assert that Vivint's evidence is “implausible on its face.” See Pl. Mem. at 12–13. But in so doing, Khowala fails to point to anything in the record even remotely like the “categorical[ ] and specific[ ]” denial that the Second Circuit found sufficient to create a triable issue in Barrows. 36 F.4th at 47.3
As a result, the Court finds that “undisputed facts in the record require the matter of arbitrability to be decided against” Khowala. Meyer, 868 F.3d at 74.
CONCLUSION
For the reasons stated above, Vivint's motion to compel arbitration is GRANTED, and the action is STAYED pending arbitration proceedings in accordance with the 2016 PSA. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 29.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 2771568
Footnotes
1
The parties agree that New York state law applies to the question of contract formation. See Def. First Mot. Mem. at 5, ECF No. 17; Pl. Opp. at 3–4, ECF No. 18. Vivint's suggestion that Utah law may govern this dispute, Def. Mem. at 11–12 & n.2., is belied by its earlier concession, and, in any event, irrelevant to the question at issue.
2
Khowala also insinuates that Vivint maintained a practice of allowing its technicians to forge signatures. See Pl. Mem. at 8.
3
Khowala's denials that he signed the 2016 PSA are different in kind than the statements made by the plaintiff in Barrows. There, the defendant argued that an electronic signature provided from a computer maintained at a plaintiff's place of employment showed that the plaintiff had e-signed an arbitration agreement; the plaintiff “adamantly, and categorically, denied having electronically signed any arbitration agreement,” stated that she had instead completed all onboarding paperwork by hand, denied that she had ever used any computer on the defendant's premises for any purpose, and denied any knowledge of defendant's virtual employee onboarding system. 36 F.4th at 47–49. Here, Khowala only states that he “did not sign” the 2016 PSA on the basis that he cannot recall having signed it. See Khowala Dep. at 61:8–9, 89:11–14; Khowala Decl., ECF No. 18-1 ¶ 5 (submitted in opposition to Vivint's first motion to compel).
End of Document    © 2025 Thomson Reuters. No claim to original U.S. Government Works.
***************************
STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm /  Security / Fire and related Agreements click here: www.alarmcontracts.com
***************************
CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
***********************
WEBINARS: https://www.kirschenbaumesq.com/page/alarm-webinars
***********************
ALARM ARTICLES:  You can always read our Articles on our website at www.kirschenbaumesq.com/page/alarm-articles  updated daily        
********************
Wondering how much your alarm company is worth?
Click here:  https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth
***********************
THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily
*************************
PODCASTS:  https://podcasts.apple.com/us/podcast/ken-kirschenbaum-presents/id1794851477
_{*************************}
Getting on our email list / Articles archived:
    Many of you are forwarding these emails to friends or asking that others be added to the list.  Sign up for our daily newsletter here: Sign Up.
**************************
Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com