terms and conditions – Attorney Evan Brown

January 26, 2024 Contracts, Litigation

Click to Agree: Online clickwrap agreements steered bank lawsuit to arbitration

online terms and conditions

Plaintiffs sued their bank alleging various claims under state law. The bank moved to compel arbitration based on various online clickwrap agreements plaintiffs had entered into.

One of the clickwrap agreements required plaintiffs to scroll through the entire agreement and then click an “Acknowledge” button before continuing to the next step. Citing to the case of Meyer v. Uber, 868 F.3d 66 (2d Cir. 2017), the court observed that “[c]ourts routinely uphold clickwrap agreements for the principal reason that the user has affirmatively assented to the terms of agreement by clicking ‘I agree.'”

Similarly, for the other relevant agreements, plaintiffs were required to click a box acknowledging that they agreed to those agreements before they could obtain access to digital products. Again, citing to the Meyer case: “A reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not.” By affirmatively clicking the acknowledgement, plaintiffs manifested their assent to the terms of the these agreements.

Curtis v. JPMorgan Chase Bank, N.A., 2024 WL 283474 (S.D.N.Y., January 25, 2024)

Uber’s signup process did not create enforceable arbitration provision

After plaintiff Uber user was denied a ride because of her guide dog, she sued Uber for discrimination under Maine law. Uber sought to have the matter sent to arbitration and the court denied that motion. So Uber sought appeal with the Maine supreme court. That court affirmed the denial of the arbitration motion, finding that Uber’s terms of service were not binding on plaintiff.

First, plaintiff was not placed on reasonable notice that the terms existed. The hyperlink was not underlined and was muted by gray coloring. Its placement on the screen was “relatively inconspicuous.” There was a greater focus on entering payment information.

Second, the court found that even if the registration process had provided reasonable notice that the terms existed, the process was insufficient to place plaintiff on notice that her registration would constitute her assent to those terms. Merely clicking the “DONE” button in the signup process, in the court’s view, could merely have meant that plaintiff thought she was done entering her information, not signing up for an account. And that button appeared on the screen “as far as possible” from the notice and hyperlink to the terms, which were at the bottom of the screen.

Sarchi v. Uber Technologies, Inc., — A.3d —, 2022 WL 244113 (Maine, January 27, 2022)

June 8, 2021 Contracts

No contract formed via URL to terms and conditions in hard copy advertisement

Online terms of service found at URL in hard copy advertisement were not enforceable.

Plaintiff visited a Subway restaurant. One of the Subway employees referred plaintiff to an in-store, hard-copy advertisement. On the advertisement, Subway offered to send special offers to plaintiff if she texted a keyword to a short code. Plaintiff sent the text message to Subway, and Subway began responding, including by sending her, via text message, a hyperlink to an electronic coupon.

Later, plaintiff wanted to stop receiving the messages, so she requested that the messages cease. But they kept arriving. Plaintiff then sued under the Telephone Consumer Protection Act (“TCPA”). Subway moved to compel arbitration, arguing that a contract was formed because the printed in-store advertisement that contained the keyword and short code to text included a reference to and URL for “terms and conditions”. Those terms and conditions required plaintiff to settle the dispute by arbitration.

The lower court denied the motion to compel arbitration. Subway sought review with the Second Circuit Court of Appeals. On appeal, the court affirmed the denial of a motion to dismiss, finding that plaintiff was not bound by the terms and conditions.

The appellate court held that plaintiff was not on notice of the terms and conditions, which contained the arbitration clause, because Subway failed to demonstrate that such terms and conditions would be clear and conspicuous to a reasonable person in plaintiff’s position. More specifically, the court held that the following facts showed plaintiff did not know what the terms said:

Subway failed to provide evidence regarding the size of the advertisement at issue, or the print size contained within that advertisement;
the reference to “terms and conditions” was buried on the advertisement in a paragraph that was printed in significantly smaller font relative to the other text on the advertisement, and the reference itself was surrounded by a substantial amount of unrelated information;
the advertisement only vaguely referenced “terms and conditions,” and did not state that a consumer would be agreeing to those terms if she sent a text message to Subway’s short code, nor did it otherwise direct the consumer to such terms;
access to the terms and conditions on the Subway website required plaintiff to type in the URL text provided on the hard-copy print advertisement into an internet browser on her cell phone or some other device with internet browsing capabilities; and
once linked to the Subway website, the heading stated that it contained “terms of use for this website,” thus potentially suggesting to a reasonable person (searching for conditions of the promotional offer) that the website did not contain any terms or conditions beyond those relevant to the use of the website.

This combination of barriers led the court to conclude that the terms and conditions were not reasonably conspicuous under the totality of the circumstances and, thus, a reasonable person would not realize she was being bound to such terms and conditions by texting Subway in order to begin receiving promotional offers.

Soliman v. Subway Franchisee Advertising Fund Trust, Ltd., — F.3d —, 2021 WL 2324549 (2nd Cir. June 8, 2021)

February 1, 2020 Contracts

Are your terms and conditions enforceable?

If customers use your website or online service or app, you need to have enforceable terms and conditions. That way, if there is some dispute, you can control over how it’s resolved,. You can also contain the costs by putting an arbitration clause in the terms and conditions. Instead of an expensive lawsuit, you can resolve it in arbitration which is often less expensive, quicker, and more private.

For terms and conditions to be enforceable, one must prove that the customer actually agreed to them. You’d be surprised how often companies find themselves in the expensive hassle of fighting over whether their terms are enforceable, then finding out they’re not. This can cause them to miss out on the cost savings and efficiency of arbitration.

This happened just just this week. A federal court of appeals ruled that an app developer didn’t structure the interface in a way to put users on notice of the terms. So since the developer couldn’t prove the users saw the terms, the case will proceed in court instead of arbitration.

And perhaps even worse, the case will probably move forward as a class action. Had the terms been enforceable, it would probably have just been limited to one-on-one lawsuits. That would have been much better for the developer.

If you’d like to discuss your terms and conditions, drop me a line or give me a call.

Benson v. Double Down Interactive, LLC, 2020 WL 468422 (9th Cir. January 29, 2020)

About the author:Evan Brown is a technology and intellectual property attorney in Chicago. Follow him on Twitter and Instagram, connect on LinkedIn and subscribe to his YouTube channel for videos on interesting topics about law and technology.

November 21, 2018 Contracts

Facebook and iOS game developer’s browsewrap terms of service were not enforceable

Plaintiffs sued defendant game developer in court alleging defendant’s game (Available on Facebook and via an iOS app) constituted illegal gambling in violation of Washington state law, and that they should get back the money they spent on virtual chips bought in-game.

Defendant moved to compel arbitration. The court denied the motion. It held that the game did not present its terms of service in a manner that would place users on notice of the provisions. Since the plaintiffs never effectively agreed to resolve their claims through arbitration, it was proper to allow the case to stay in court.

The court noted a number of problems with the game’s “browsewrap” agreement.

When a user would first access the Facebook app, the “App Terms” link on the initial pop-up window was located far below the “Continue” button in small grey text. The court found that the pop-up window’s main purpose was to gain permission for data sharing between Facebook and defendant, and was not a point traditionally associated with binding terms unrelated to the data sharing itself.

When a user would first download the iPhone app, the app page contained a link to the “License Agreement” that could only be viewed after significant scrolling. Compounding the problem was the fact that a user could download the app directly from the search results list within the App Store without ever accessing the particular app page. So neither the initial link on Facebook or on the mobile app was coupled with a notification informing a user that downloading or playing defendant’s game created a binding agreement.

The hyperlinks within the game itself also did not put a user on inquiry notice.

On Facebook, the “Terms of Use” hyperlink was located at the very bottom of the gameplay screen in small font next to several other links, and was not visible unless a user would scroll down.

On the mobile app, the link to the Terms of Use was located within a settings menu that a player might never have even needed to access. Furthermore, links that were available only via the settings menu were not “temporally coupled” with a discrete act of manifesting assent, such as downloading an app or making a purchase, and were thus less likely to put a reasonable user on inquiry notice.

Benson v. Double Down Interactive, LLC, 2018 WL 5921062 (W.D.Wa. Nov. 13, 2018)

See also:

August 17, 2015 Contracts

Court provides guidance on how to effectively communicate online terms of service

Are online terms of service provided via hyperlink in an email binding on the recipient of that email? The Second Circuit recently addressed that question, and the decision gives guidance on best practices for online providers.

Plaintiff booked a trip to the Galapagos Islands using defendant’s website. When she purchased her ticket, she got a booking information email, a confirmation invoice and a service voucher. (It is not clear how plaintiff got the confirmation invoice and the service voucher – the court’s opinion says they were sent as emails, but the PACER record does not show them as emails. In any event, plaintiff did not dispute that she received all three documents, nor did she dispute all three documents contained a hyperlink to defendant’s “terms and conditions” which were available online.)

One evening during the trip, a tour guide allegedly assaulted plaintiff. She sued defendant for negligently hiring and training that tour guide. Defendant moved to dismiss, pointing to language in the online terms and conditions that called for disputes to be heard in Canadian court. The district court dismissed the action, and plaintiff sought review with the Second Circuit. On appeal, the court affirmed. It held that defendant had reasonably communicated the forum selection clause to plaintiff by using hyperlinks and the appropriate language in the terms and conditions.

Each of the documents contained an underlined hyperlink, and accompanying language advising plaintiff to click on the hyperlink. The booking information email contained a standalone provision with the heading “TERMS AND CONDITIONS”. This section stated that “[a]ll . . . passengers must read, understand and agree to the following terms and conditions.” The hyperlink immediately followed. Both the confirmation invoice and the voucher contained a link to the terms and conditions, preceded by “[c]onfirmation of your reservation means that you have already read, agreed to and understood the terms and conditions. . . .”

The actual structure and language of the terms and conditions also served to reasonably communicate the forum selection clause. The second paragraph stated that the terms and conditions “affect your rights and designate the governing law and forum for the resolution of any and all disputes.” Later in the terms and conditions, a standalone section titled “APPLICABLE LAW” provided that all matters arising from the agreement were subject to Ontario and Canadian law and the exclusive jurisdiction of the Ontario and Canadian courts.

The decision validates the notion that an e-commerce provider can rely on establishing valid and binding contracts with its customers without having to actually transmit a copy of the terms and conditions that would apply to the transaction. Though the facts of this case dealt with email, there is no substantive reason why the best practices revealed by the court’s decision would not apply to providers of mobile apps and other online platforms.

Starkey v. G Adventures, Inc., — F.3d —, 2015 WL 4664237 (2nd Cir. August 7, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

September 6, 2011 Contracts

Website terms and conditions were unenforceable because of fraud

Duick v. Toyota Motor Sales, U.S.A., Inc., 2011 WL 3834740 (Cal.App. 2 Dist. August 31, 2011)

Someone signed plaintiff up through a Toyota website to take part in a “Personality Evaluation.” She got an email with a link to a website, and on the second page that she had to click through, she was presented with the well-known check box next to the words “I have read and agree to the terms and conditions.”

Later plaintiff started getting creepy emails from an unknown male calling himself “Sebastian Bowler” who indicated that he was on a cross-country road trip to come and visit plaintiff. He even listed plaintiff’s physical address. One of the emails had a link to Bowler’s MySpace page, which revealed he “enjoyed drinking alcohol to excess.” A few days later plaintiff got another email from someone purporting to be the manager of the hotel in which Bowler had trashed a room, and attempted to bill plaintiff for the damage.

As one would expect, plaintiff was disturbed by these messages. She finally got an email with a link to a video that said Bowler was a fictional character and that the emails were part of an elaborate prank, all to advertise the Toyota Matrix.

Plaintiff sued Toyota for, among other things, infliction of emotional distress. Toyota moved to dismiss the lawsuit, arguing that the online terms and conditions contained an arbitration provision, so the case did not belong in court but before an arbitrator. The court rejected this argument, finding that the terms and conditions were void, because plaintiff’s agreement to them was procured by “fraud in the inception or execution.”

The court found that the terms and conditions led plaintiff to believe that she was going to participate in a personality evaluation and nothing more. A reasonable reader in plaintiff’s position would not have known that she was signing up to be the target of a prank. For example, the terms and conditions were under the heading “Personality Evaluation Terms and Conditions” and made vague and opaque references to terms such as “interactive experience” and a “digital experience.” Simply stated, plaintiff, through no fault of her own, did not know what she was getting herself into.

For these reasons, the court held that the terms and conditions were void, and all the provisions contained in those terms and conditions, including the purported agreement to arbitrate any disputes, did not bind the parties.