A number of U.S. state and federal courts have recently considered whether the manner in which companies presented to their users a variety of electronic contracts (e.g., terms of service) was sufficient to form an...more
On March 31, 2022, in Airbnb, Inc. v. Doe, the Florida Supreme Court aligned itself with nearly every federal circuit1 in holding that a “clickwrap” agreement that incorporates arbitration rules expressly delegating...more
Takeaway: Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An internet consumer must, at a minimum, be...more
The Ninth Circuit recently concluded that a consumer was not bound by updated terms merely because she accessed a website that contained new terms in a “browse-wrap” agreement on the website. The court also concluded that an...more
Takeaway: Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An Internet consumer must, at a minimum, be...more
Courts throughout the country continue to express skepticism over, and go to lengths to deny the enforceability of, arbitration provisions in consumer online agreements. A recent example from the New York Supreme Court for...more
In an unpublished opinion, the Ninth Circuit affirmed a lower court’s ruling that had sent a putative class action against Amazon over its pricing practices to arbitration, as per Amazon’s terms of service. (Wiseley v....more
How important is your businesses’ terms of service (TOS) agreement, usually presented to users of your business model through a process requiring them to click “I agree” before they can access your platform? A recent case...more
In recent years, courts have issued varying rulings as to whether online or mobile users adequately consented to user agreements or terms of service when completing an online purchase or registering for a service. In each...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
On August 17, 2017, the United States Second Circuit Court of Appeals issued a landmark ruling in Meyer v. Kalanick that clarifies the standards for contract formation in the age of smartphones and mobile contracting,...more
Two employees who clicked “accept” on an online form in order to receive a bonus were bound by additional language that included an agreement to not compete in the future. Messrs. Lynch and Halpin worked in sales for ADP, and...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
Recently, in a major win for employers and companies that transact business on the internet, the Ninth Circuit upheld the use of arbitration class-action waivers in so-called clickwrap agreements. These types of agreements...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
Perhaps overshadowed in the raging battle over the Consumer Financial Protection Bureau's proposal to ban the use of class action waivers in consumer arbitration agreements involving consumer financial products or services is...more
On July 29, 2016, the Southern District of New York, in Meyer v. Kalanick, refused to enforce mandatory arbitration and jury waiver provisions against a putative class of Uber consumers. In a lengthy and strongly worded...more
According to the official Pokémon website, “kids all over the world have been discovering the enchanting world of Pokémon [for over 15 years].” Not surprisingly, many of us who used to be kids in the 15+ years are playing...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
The District Court for the Northern District of California recently issued what could be a very significant decision on a number of important digital law issues. These include: the enforceability of “clickwrap” as compared...more
The recently released Carlton Fields 2016 Class Action Survey reports that class actions are up for the first time in four years. While data privacy class actions still make up a relatively small portion of class action...more
If you’re like us—and most others, we’ll venture to guess—you’ve never read all the terms and conditions of the iTunes end-user license agreement. We doubt that it’s a scintillating read, but, regardless, most...more
This week, a major self-regulatory initiative intended to address privacy concerns associated with facial recognition technology hit a significant stumbling block. Nine consumer advocacy groups withdrew from the National...more
We have written many times about attempts to use copyright law to do what defamation law can’t: take stuff down from the internet. Because Section 230 of the Communications Decency Act (“CDA”) prevents a defamation plaintiff...more
On September 9, 2014, Governor Jerry Brown signed into law AB 2365, popularly referred to as the “Yelp” bill. The new law, codified at California Civil Code section 1670.8, will prohibit the use of “non-disparagement” clauses...more