Businesses wanting to bind consumers to arbitration clauses should not hide them in website terms of use agreements, according to a recent post on the Socially Aware blog by Morrison Foerster partner John Delaney and Sherman Kahn of Mauriel Kapouytian Woods.
The case revolved around Touchpads, which the plaintiff tried to buy online from Barnes & Noble. After ordering two, he was notified the next day by the company that they were essentially out of stock due to high demand, The plaintiff sued on behalf of a class, saying he was forced to buy a more expensive product, explained the authors.
Barnes & Noble responded by attempting to compel arbitration, relying on its website Terms of Use agreement, which contained an arbitration clause. The agreement was not affirmatively “click accepted” by the customer, but it was accessible through a hyperlink at the bottom of the website—known as a browsewrap agreement.
