Tenth Circuit Enforces Electronic Agreement Entered Into On An Installation Technician’s Laptop


On December 11, the U.S. Court of Appeals for the Tenth Circuit affirmed dismissal of plaintiffs’ claims concerning AT&T’s U-Verse services, based on forum selection and arbitration clauses in the agreements between the parties. Hancock v. Am. Tel. & Tel. Co., Inc., 11-6233, 2012 WL 6132070 (10th Cir. Dec. 11, 2012). In support of the motion to dismiss, AT&T offered declarations from its employees concerning its standard practices for entering into agreements with customers obtaining U-Verse services. Under those practices, customers purchasing U-Verse TV and Voice services agreed to terms of service (TV Terms) that included a forum selection clause. The TV Terms were provided to customers in writing by the installation technician at the time the services were installed. The customers agreed to the TV Terms by clicking on an acknowledgement and acceptance box on the technician’s laptop after being given the printed terms – the acknowledgement and acceptance stated that the customer had received and reviewed the TV Terms. Details of each acceptance were captured and stored on AT&T’s servers at the time of acceptance. Also under AT&T’s standard practices, customers purchasing U-Verse Internet Services agreed to separate terms of service (Internet Terms) during the online registration process – to complete registration, customers had to click on an “I Agree” button underneath the Internet Terms. For two of the plaintiffs, the Internet Terms included a mandatory arbitration clause at the time of registration. For another plaintiff, the mandatory arbitration clause was added after a notice of amendment, describing the new arbitration clause, was provided to the plaintiff via email. On appeal, the court held that the declarations concerning AT&T’s standard practices were admissible in evidence, and since they were not contradicted by the plaintiffs’ affidavits, the district court did not abuse its discretion by accepting the declarations as true. The court went on to hold that under AT&T’s standard practices both the TV Terms and the Internet Terms were clearly presented, and that enforceable contracts were formed between the plaintiffs and AT&T. The court also concluded that the e-mail notification process used to add the arbitration clause to the Internet Terms was sufficient to make the amendment effective.

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