September 7, 2016

07 September 2016

Why Design Matters: It Can Determine Whether an Online Agreement is Enforceable

*Updated on September 8, 2016

The Southern District of New York recently issued a ruling that raises new issues with customer consent and arbitration contracts in a simple click-through agreement, adding to the increasing judicial skepticism over the enforceability of browse-wrap agreements, despite the Supreme Court’s seeming endorsement of consumer arbitration clauses in AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), based on preemption by the Federal Arbitration Act. Soon after this decision, however, the Ninth Circuit issued a ruling that went the other way and found that the arbitration terms in Uber’s terms and conditions were enforceable. Central to these cases has been findings relating to the degree to which terms of use can be considered binding.


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