“Modified Clickwrap” Upheld In Court–Moule v. UPS

13 12 2016

[Eric’s introduction: today Venkat and I are “celebrating” (?) TOS Arbitration Day here at the Technology & Marketing Law Blog. Independently, we each drafted blog posts about arbitration clauses in terms of service–covering different cases! We could have combined the blog posts into a single mega deluxe blog post, but who doesn’t like getting two yummy treats instead of one? So this is part 1 of our posts in honor of TOS Arbitration Day. Check back later today for Venkat’s part 2.]

Let’s review the state of play:

* courts say online contracts should be categorizable as “clickwraps” or “browsewraps”
* courts usually enforce clickwraps but not browsewraps
* despite the categories, courts don’t view clickwraps and browsewraps as abutting circles on a Venn diagram. Instead, the circles apparently are partially overlapping. This is resulting in analytical confusion
* because courts don’t understand the definitions of “clickwrap” or “browsewrap,” the courts are perceiving cases on their dockets as falling into the overlap zone
* because they think cases in the overlap zone must be novel, courts are proliferating variations of “-wrap” nomenclature
* the growing semantic ambiguity is compounding the analytical confusion

I’ve told you before that this situation is so much easier than the courts are treating it. Clickthrough agreements–which consist of visible notice to the user, an affirmative act by a user and a proper call-to-action saying that the affirmative act manifests assent–are enforceable. Let’s call everything else “not a contract” and never use the “-wrap” suffix again. Done.

Today’s case involves the shipment of an expensive item via UPS. The item allegedly arrived in poor condition. The sender says UPS mishandled it. UPS says the sender improperly packed it and denied compensation to the sender. The sender sued. UPS invoked an arbitration clause in its “UPS Tariff/Terms and Conditions of Service.”

Case citation: Moule v. United Parcel Service Co., 2016 WL 3648961 (E.D. Cal. July 7, 2016)

BONUS! HIDDEN TRACK: Salameno v. Gogo Inc., 2016 U.S. Dist. LEXIS 88166 (E.D.N.Y. July 7, 2016), echoing the befuddling and overlong Berkson v. Gogo ruling, endorses the term “sign-in-wrap”:


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