Court Rejects “Browsewrap.” Is That Surprising?–Long v. ProFlowers
24 03 2016
Plaintiff said he was not aware of the terms and never clicked on the terms when he ordered or when he received the email. The court says that enforceability of so-called “browsewrap” agreements is something yet to be addressed by California appellate courts. (!) It looks to Specht and Nguyen, from the Second and Ninth Circuits respectively. The key question under those cases is whether the presentation of the website (the user experience) would put a reasonable consumer on inquiry notice. One way to do this is to include a hyperlink in close proximity to where the user must take action. (See Fagerstrom.) Even assuming proximity of the hyperlink to where the user must take action, courts finding these contracts enforceable have typically required something to advise the users to click on the terms. ProFlowers failed that test here. The court says:
Case citation: Long v. Provide Commerce, Inc., B257910 (Cal. Ct. App. Mar. 17, 2016) [pdf].
Related posts:
Court Enforces Arbitration Clause in Amazon’s Terms of Service–Fagerstrom v. Amazon
The “Browsewrap”/”Clickwrap” Distinction Is Falling Apart
What’s a Browsewrap? The Ninth Circuit Sure Doesn’t Know–Nguyen v. Barnes & Noble
23andMe’s Browsewrap Fails, But Its Post-Purchase Clickthrough Works Anyway–Tompkins v. 23andMe
Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook
Gmail Terms of Service Apply to reCAPTCHA During Account Formation–Rojas-Lozano v. Google
Jawbone Plaintiff Can Invoke California Choice of Law Provision in Service Agreement
If You’re Going To Incorporate Online T&Cs Into a Printed Contract, Do It Right–Holdbrook v. PCS
Clickthrough Agreement Upheld–Whitt v. Prosper
‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause–Starke v. Gilt
Some Thoughts On General Mills’ Move To Mandate Arbitration And Waive Class Actions
Qwest Gets Mixed Rulings on Contract Arbitration Issue—Grosvenor v. Qwest & Vernon v. Qwest
Zynga Wins Arbitration Ruling on “Special Offer” Class Claims Based on Concepcion — Swift v. Zynga
Second Circuit Enforces Terms Hyperlinked In Confirmation Email–Starkey v. G Adventures
If You’re Going To Incorporate Online T&Cs Into a Printed Contract, Do It Right–Holdbrook v. PCS
Clickthrough Agreement Upheld–Whitt v. Prosper
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