Following up on a prior post, two recent cases have tested the enforceability of “agreements” that one party unilaterally propounded and the other party had no idea existed. Though the Ninth Circuit found both to be non-binding, the logic in both cases implies that knowing consent — an element of contract law that is emphasized in law school as fundamental — seems no longer to be a requirement in “agreeing” to arbitrate future disputes.
In Nguyen v. Barnes & Noble, (CTA 9 August 18, 2014), Kevin Nguyen purchased two Touchpads on Barnes & Noble’s website. The order was cancelled “due to unexpectedly high demand” and Nguyen filed a suit in California state court on behalf of himself and others similarly situated, alleging that the company had engaged in deceptive business practices and false advertising. The company removed the action to federal court and moved to compel arbitration.
