A recent case from the Northern District of Illinois highlights some potential problems. In that case, the court denied a motion to compel arbitration in a putative class action and found that the defendants failed to show that the plaintiff had agreed to arbitrate the dispute when navigating through one of the Defendants’ website. See Anand v. Heath, et al., No. 19-0016 (N.D. Ill. June 28, 2019) (“Anand”).
The plaintiff in Anand registered and completed a survey for a gift card on a website owned operated by one of the defendant’s subsidiaries. During her registration, the plaintiff submitted her contact information, including her telephone number. After receiving allegedly unsolicited telemarketing calls, the plaintiff filed a putative class action and two of the defendants moved to compel arbitration pursuant to the website’s terms and conditions.
Website Terms and Conditions
The court disagreed and denied the Defendants’ motion to compel arbitration. The court reasoned that the plaintiff “was not placed on reasonable notice that she was manifesting assent to the website’s terms and conditions by clicking the ‘Continue’ button.” The court noted that the online agreement at issue was a variation of a hybrid-wrap agreement which is a type of agreement that presents a user with a hyperlink to the terms and conditions and a prompt to manifest acceptance of those terms. Although these types of agreements can be enforceable, this case was different according to the court because the website did not include language explaining that any user was accepting the terms and conditions by clicking on the “Continue” button.
Website Lessons for Massachusetts Businesses
Although this decision does not apply Massachusetts law, the ruling is a reminder that Massachusetts business owners should carefully consider how the terms and conditions on their website are presented.
If you’re uncertain about whether your business website terms and conditions (or terms or service) are enforceable, please contact me or an attorney who is knowledgeable about these matters to discuss and evaluate our website.