U.S. Court of Appeals for the Ninth Circuit (Jason Doiy / The Recorder)
SAN FRANCISCO — The U.S. Court of Appeals for the Ninth Circuit has refused to enforce a so-called “browsewrap” arbitration agreement incorporated into the website of Barnes & Noble Inc. against customers who claim the bookseller reneged on their purchases of discounted computer tablets.
“The onus must be on the website owners to put users on notice of the terms to which they wish to bind consumers,” Judge John Noonan wrote for the circuit panel. “Given the breadth of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound.”
Cooley partner Michelle Doolin argued for Barnes & Noble. Gretchen Carpenter of Strange & Carpenter in Los Angeles argued for the plaintiffs.
Such agreements, which do not require users to click an “I agree” box or otherwise indicate assent, are known as “browsewrap” agreements. Barnes & Noble argued its customers consented to arbitration simply by using the website.
The panel disagreed. Nguyen did not read the agreement, or even click on the link, Noonan noted. And Barnes & Noble did not give him reasonable notice to click simply by placing the hyperlink in close proximity to buttons required to complete the purchase, ruled the panel, which included Judge Kim Wardlaw and U.S. District Judge Roslyn Silver of Arizona sitting by designation.
“In light of the lack of controlling authority on point, and in keeping with courts’ traditional reluctance to enforce browsewrap agreements against individual consumers,” Noonan wrote, “we therefore hold that … even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.”
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