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Update and Discussion on Legal and Practical Issues
In a recent decision, EDVA Judge Rossie Alston invalidated the arbitration clause in the terms and conditions for online sales through the Lowe’s Home Centers website on the grounds that the terms and conditions were illusory...more
Overview - The District Court for the Northern District of California recently provided guidance in Alkutkar v. Bumble Inc., No. 22-CV-00422- PJH (N.D. Cal. Sept. 8, 2022), reconsideration denied, No. 22-CV-00422-PJH,...more
Recently, the Ninth Circuit Court of Appeals reexamined when use of a website can bind a consumer to hyperlinked “terms and conditions” containing an arbitration provision that the consumer never saw or read. Affirming the...more
Takeaway: We have recently written about the challenges involved in enforcing “browsewrap” contracts. See Internet terms of use: Ninth Circuit enforces arbitration agreement accessible through browsewrap hyperlink (August...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
Last month, a California district court granted a web-based service’s motion to compel arbitration of a putative class action brought by a user whose personal information was allegedly accessed in a massive 2016 data breach...more
In Starke v. SquareTrade, Inc., No. 17-2474, 2019 WL 149628 (2d Cir. Jan. 10, 2019), the Second Circuit affirmed a ruling that denied a web service’s motion to compel arbitration, finding that the user did not have reasonable...more
A California federal court recently held in Rushing v. Viacom, Inc. that an arbitration provision in Viacom’s End User License Agreement (“EULA”) was one click shy of enforceability, and denied the company’s motion to dismiss...more
Online lead generation is huge business, and present across all manner of consumer industries including lending, home services, insurance, healthcare – you name it. By the time these leads reach the caller, a consumer will...more
In a big win for the tech industry and app developers, and for other companies seeking to enforce arbitration agreements through web-based interactions, last week the Second Circuit Court of Appeals held that the plaintiff in...more
What makes an on-line arbitration agreement binding against a website user? In Meyer v. Uber Technologies, Inc., 2017 U.S. App. LEXIS 15497 (2d Cir. Aug. 17, 2017), the U.S. Court of Appeals for the Second Circuit issued a...more
This past summer, we wrote about two instances in which courts refused to enforce website terms presented in browsewrap agreements. As we noted, clickthrough agreements are generally more likely to be found to be enforced. ...more
In an important decision underscoring the challenges faced by retailers and others in enforcing online arbitration agreements with their customers, the U.S. Court of Appeals for the Second Circuit has reversed a district...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
This case arises from an appeal from an Illinois federal district court, which ruled that TransUnion, a credit reporting agency, did not give a putative class of its website users proper notice of an arbitration agreement,...more
Doing business in New Jersey just got thornier. Recent decisions broadly interpreting the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14, et seq., have spawned a flurry of pre-suit...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
California - Browsewrap Arbitration Agreement Not Enforced Against Individual Consumer. In Nguyen v. Barnes & Noble Inc., 2014 WL 4056549 (9th Cir. Aug. 18, 2014), the Ninth Circuit affirmed the denial of B&N’s motion...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
Before a legal decision is employed, it must be thoroughly vetted from multiple perspectives (including a determination of whether the decision comports with the company’s business goals). Otherwise, unintended business...more
Can a company require that you give up your right to sue the company if you download a coupon from the company’s website? What if you “like” one of the company’s products on Facebook? Over the last month, General Mills...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