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Update and Discussion on Legal and Practical Issues
In a recent decision, the U.S. District Court for the Eastern District of Virginia denied a retailer’s motion to compel individual arbitration of a claim brought in a putative class action lawsuit. The complaint alleges that...more
The Ninth Circuit Court of Appeals recently upheld a decision compelling arbitration based on an arbitration provision in website “terms of use,” even though those terms were in a hyperlink....more
The Ninth Circuit recently affirmed a district court’s decision to grant motions to compel arbitration and dismiss without prejudice six putative class actions against sporting goods retailers based on “sufficiently...more
On May 4, the Colorado Court of Appeals held that a plaintiff had constructive notice of updated terms and conditions in her membership agreement with a defendant credit union, which included an arbitration agreement with an...more
On March 28, the U.S. District Court for the Western District of North Carolina ruled that class members must arbitrate their claims against an online lending marketplace relating to a 2022 data breach that affected current,...more
This week, the Court addresses the enforceability of an arbitration provision in Live Nation and Ticketmaster’s terms of use. OBERSTEIN V. LIVE NATION ENTERTAINMENT, INC. The Court holds that Live Nation and...more
The Eleventh Circuit recently declined a rental car company’s attempt to invoke an arbitration clause in Orbitz.com’s terms of use in a lawsuit brought by a disgruntled customer who booked his rental car through Orbitz...more
Many online services feature comprehensive terms of use intended to protect their business from various types of risks. While it is often the case that a great deal of thought goes into the creation of those terms, frequently...more
A customer argued that he is not bound to the arbitration clause included in Amazon’s conditions of use since August 2011 because he never received notice of the clause or manifested his assent to it. Nonetheless, the...more
The Ninth Circuit affirmed the district court’s order denying Double Down Interactive, LLC, and International Game Technology’s (collectively, “Double Down”) motion to compel arbitration in a putative class action filed by...more
The U.S. District Court for the Southern District of Florida recently refused to compel arbitration in a putative class action based on an arbitration clause a plaintiff agreed to on a third party’s website he used to book a...more
On December 20, 2019, the Ninth Circuit affirmed a Washington district court’s order denying Huuuge Inc.’s bid to arbitrate claims brought on behalf of a putative class of all smartphone users of its casino gaming...more
The Ninth Circuit recently denied a motion to compel arbitration after concluding that an arbitration agreement “buried” in difficult to access terms for a smartphone app did not put users on constructive notice that they...more
It is a legal maxim that arbitration is a creature of contract. A recent District of Massachusetts decision explores critical questions about when that creature can exist outside of the confines of a binding agreement to...more
Boxing fan Victor Mallh, attempting to take a class action swing at Showtime Networks for failures in its livestream broadcast of the Mayweather/McGregor fight in August of this year, will have to pursue his claim in...more
Applying Washington law, the Ninth Circuit Court of Appeals affirmed a California federal court’s ruling that Amazon’s Conditions of Use (COU) created a valid contract between Amazon and its customers, and there was no...more
Screen scraping is a problem that has vexed website owners since the early days of e-commerce – how to make valuable content available to users and customers, but prevent competitors from accessing such content for commercial...more
In Nghiem v Dick’s Sporting Goods, Inc., No. 16-00097 (C.D. Cal. July 5, 2016), the Central District of California held browsewrap terms to be unenforceable because the hyperlink to the terms was “sandwiched” between two...more
As we have noted before, if you want to increase the likelihood that your website terms of use are enforceable against users, you need to do two things. First, you need to display the terms to users in a conspicuous way, and...more
The California Court of Appeal (2d App. Dist., Div. 3) recently joined the ever-evolving body of case law addressing the enforceability of so-called “browsewrap” arbitration agreements. In Long v. Provide Commerce, Inc., —...more
Draft Kings and Fan Duel, competing daily fantasy sports (DFS) sites, have been vying for attention by flooding the airwaves with a reported 60,000 commercials this year. However, a recent data leak has resulted in less...more
The United States Court of Appeals for the Ninth Circuit recently decided the case of Kevin Khoa Nguyen v. Barnes & Noble, Inc., No. 12-56628 (9th Cir. 2014). This case highlights the importance of making website Terms of Use...more
In a case intersecting the 89-year-old Federal Arbitration Act (FAA) and the digital era, the Ninth Circuit has ruled that a consumer who did not read the company’s terms of use when ordering a product on its website was not...more
Contractual provisions giving a website operator the unilateral right to change its end user terms of service are ubiquitous and appear in the online terms of many major social media sites and other websites, including...more