News & Analysis as of

Browsewrap Agreement

Controversial “Gripe Site” Protected (Again) by the Communications Decency Act and Defeats Novel Copyright Attack with Website...

The controversial consumer gripe site, RipoffReport.com, is at it again. The First Circuit recently affirmed a lower court’s ruling that RipoffReport.com was entitled to immunity under Section 230 of the Communications...more

Update Your Browsewrap and Clickwrap Agreements

by Revision Legal on

A recent California case reminds businesses and website owners that browsewrap and clickwrap agreements must be conspicuous for courts to enforce them. See Long v. Provide Commerce, Inc., 245 Cal.App.4th 855 (2nd Dist. 2016)....more

Clickwraps and Browsewraps Oh My! Terms of Online Vendor Agreements - Are They Enforceable?

by Rumberger Kirk & Caldwell on

Often times, in seeking to enforce a term or condition of an online transaction, such as an arbitration clause, an online vendor will discover that (in the eyes of the law) the consumer never agreed to the transaction’s terms...more

Second Circuit Court of Appeals Reaffirms Strong Federal Preference for Enforcing Arbitration Agreements in the Evolving Era of...

by Foley & Lardner LLP on

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

Second Circuit Scraps District Court’s Denial of Uber’s Motion to Compel Arbitration

On August 17, 2017, the Second Circuit Court of Appeals vacated a district court’s denial of Uber’s and Mr. Travis Kalanick’s motions to compel arbitration in a case involving price-fixing accusations. In Meyer v. Kalanick,...more

Browsewrap Disclosure Held Insufficient to Constitute “Prior Express Written Consent” Even for a Healthcare-Related Call

by Dorsey & Whitney LLP on

Folks involved with selling health insurance, or anything else for that matter, and who rely upon browsewrap website terms might want to give Sullivan v. All Web Leads, Inc., No. 17-cv-1307, 2017 U.S. Dist. LEXIS 84232 (N.D....more

Is Arbitration Just a Click Away?

by Burr & Forman on

With online retailers challenging brick and mortar stores, the importance of online transactions and the terms of the contracts they create has never been greater. In the context of arbitration, courts are increasingly being...more

TMT China Brief - Winter/Spring 2017

by Hogan Lovells on

Welcome to this edition of our bi-annual TMT China Brief! This edition features a total of 15 articles which capture the significant TMT developments in Greater China in the Winter/Spring 2017. These developments cover an...more

Third Circuit Goes On Formation Tour — Issues Arbitration Decisions Favoring Prisoners and Pistachio Buyers

In the past week, the Third Circuit has issued two important decisions on the formation of arbitration agreements. (Sing it Beyoncé! “Okay ladies, now let’s get in formation.”) In one, a class action was allowed to proceed...more

Uber Steers for Mandatory Arbitration

by Robins Kaplan LLP on

After its bid to compel arbitration stalled in the district court, Uber is gearing up to argue before the Second Circuit that its users waive their right to a jury trial when they sign up for its app. The defendants in...more

[Event] A Nuts-and-Bolts Conversation About Terms of Use for Websites, Software and Contracts - March 2nd, Seattle, WA

by BakerHostetler on

BakerHostetler invites you to join us for a one hour complimentary seminar (followed by Q&A) offering practical considerations for managing risk and liability in online and other contracts. Our session will cover trending...more

Website Design Implicated in Two Rulings on Enforceability of Online Terms – Highlights the Importance of Legal Review of Design...

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

Second Circuit: Placing Order Online Did Not Bind Customer to Amazon’s Arbitration Provision

by Ballard Spahr LLP on

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

Federal Court Decision Provides Useful Guidance to Companies Offering Products and Services Pursuant to Online Terms of Use

On July 29, 2016, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York issued an opinion and order in Meyer v. Kalanick, denying Uber Technologies' motion to compel arbitration of a consumer's...more

Court Denies Uber Motion to Compel Arbitration of Class Antitrust Claims Because Mobile App’s Terms of Service Were Inconspicuous

by Pierce Atwood LLP on

Late last week, influential federal judge Jed Rakoff of the Southern District of New York denied a motion to compel arbitration of an antitrust class action complaint pending against ride-hailing pioneer Uber Technologies....more

Browsewrap Agreement Held Unenforceable – Website Designers Take Note!

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

Six Ways Site Design Can Potentially Render TOS Agreements Unenforceable

Our recent posts on successful legal challenges to the arbitration clauses in browsewrap and clickwrap agreements have a theme in common—even the most thorough and well-worded agreement can be rendered unenforceable by...more

Clickwrap Kryptonite: Don’t Let Site Design Undermine Your TOS

We previously covered the developing legal issues with browsewrap agreements and the importance of reviewing and updating any such agreement to ensure users are bound to the terms. In a browsewrap agreement, the user’s assent...more

How Binding Is Your Browsewrap Agreement?

Anyone who has purchased a product online or downloaded software for a computer, tablet or mobile device has likely encountered “browsewrap” and “clickwrap” agreements. Such agreements are the bread and butter of companies...more

Clickwrap Agreement From a Paper Contract?

by Field Law on

Can a binding contract be formed merely with a link to another set of terms? (For background on this topic, check out our earlier post What, exactly, is a browsewrap? which reviews browsewraps, clickwraps, clickthroughs,...more

California Court of Appeal Weighs in on Enforceable “Browsewrap” Arbitration Agreements in ProFlowers Case

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

California Court Spurns ProFlowers.com’s “Browsewrap” Terms

It is a familiar issue. When should a consumer “be on the hook” for all of the terms and conditions in a company’s agreement accompanying its product or service?...more

Purchasing Flowers Ends in Reforming Browsewrap Agreements

by Fenwick & West LLP on

A California Court of Appeal has taken its first stance on the website design requirements necessary for an enforceable browsewrap agreement. On March 17, 2016 the Court of Appeal affirmed the California Superior Court of Los...more

California Court Rules on Enforceability of Browsewrap Contract

by Taylor English Duma LLP on

Practitioners might jump to the conclusion that browsewrap contracts are always unenforceable when hearing about the decision of the California Court of Appeals in Long v. Provide Commerce, Inc., 2016 Cal. App. LEXIS 199...more

Clickwrap, Browsewrap and Mixed Media Contracts: A Few Words Can Go a Long Way

Courts have generally categorized such online agreements into two types: “clickwrap” agreements and “browsewrap” agreements. Clickwrap agreements—which require a user to check a box or click an icon to signify agreement...more

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