Justia Arbitration & Mediation Opinion Summaries

Articles Posted in Internet Law
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Plaintiff, on behalf of himself and a putative class of California consumers who purchased flower arrangements through Provide's website, ProFlowers.com, filed suit alleging consumer fraud claims. On appeal, Provide challenges the trial court's order denying its petition to compel arbitration. The Terms of Use on ProFlowers.com fall into a category of Internet contracts commonly referred to as “browsewrap” agreements. Plaintiff opposed the petition to compel arbitration on the ground that he was never prompted to assent to the Terms of Use, nor did he actually read them, prior to placing his order on ProFlowers.com. The court found that the hyperlinks and the overall design of the ProFlowers.com website would not have put a reasonably prudent Internet user on notice of Provide’s Terms of Use, and Plaintiff therefore did not unambiguously assent to the subject arbitration provision simply by placing an order on ProFlowers.com. Accordingly, the court affirmed the judgment. View "Long v. Provide Commerce, Inc." on Justia Law

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Plaintiff filed suit on behalf of himself and a putative class of consumers whose Touchpad orders had been cancelled, alleging that Barnes & Noble had engaged in deceptive business practices and false advertising. On appeal, Barnes & Noble challenged the district court's denial of its motion to compel arbitration against plaintiff under the arbitration agreement contained in its website's Terms of Use. The court held that there was no evidence that the website user had actual knowledge of the agreement. The court also held that where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on - without more - is insufficient to give rise to constructive notice. Therefore, the court concluded that there is nothing in the record to suggest that those browsewrap terms at issue are enforceable by or against plaintiff, much less why they should give rise to constructive notice of Barnes & Noble's browsewrap terms. In light of the distinguishing facts, the district court did not abuse its discretion in rejecting Barnes & Noble's estoppel argument. Accordingly, the court held that plaintiff had insufficient notice of Barnes & Noble's Terms of Use, and thus did not enter into an arbitration agreement. The court affirmed the judgment of the district court. View "Nguyen v. Barnes & Noble Inc." on Justia Law

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After plaintiff purchased a background check and report from Intelius on the Internet, plaintiff discovered that Adaptive, a separate company from Intelius, had been charging his credit card each month for a Family Safety Report. Plaintiff and others filed suit against Intelius in state court. Intelius then filed a third-party complaint against Adaptive. Adaptive filed a motion to compel arbitration of both Intelius's and plaintiff's claims. The court held that plaintiff did not enter into a contract with Adaptive to purchase the Family Safety Report, and did not enter into a contract with Adaptive to arbitrate. Therefore, the court affirmed the district court's denial of the motion to compel. The court remanded for further proceedings. View "Lee v. Intelius Inc." on Justia Law

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Plaintiffs brought a putative class action against Bresnan alleging violations of the Electronic Communications Privacy Act, 18 U.S.C. 2520-21, the Computer Fraud and Abuse Act, 18 U.S.C. 1030, and Montana state law for invasion of privacy and trespass to chattels in connection with targeted advertising they received while using Bresnan's Internet service. The district court declined to enforce a choice-of-law clause in the service subscriber agreement, provided to all Bresnan customers, specifying that New York law should apply, and an arbitration clause. The court held that AT&T Mobility LLC v. Concepcion further limited the savings clause in the Federal Arbitration Act (FAA), 9 U.S.C. 1-2 et seq., and therefore, the court held that the FAA preempted Montana's reasonable expectations/fundamental rights rule and that the district court erred in not applying New York law because a state's preempted public policy was an impermissible basis on which to reject the parties' choice-of-law selection. Accordingly, the court vacated the district court's denial of Bresnan's motion to compel arbitration and remanded to the district court with instructions to apply New York law to the arbitration agreement. View "Mortensen, et al. v. Bresnan Communications, LLC" on Justia Law

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Plaintiffs brought suit against defendants on behalf of themselves and similarly situated plaintiffs, alleging, inter alia, that defendants engaged in unlawful, unfair, and deceptive practices through unauthorized enrollment practices known as "post transaction marketing" and "data pass." At issue was whether plaintiffs were bound to arbitrate their dispute with defendants as a consequence of an arbitration provision that defendants asserted was part of a contract between the parties. The court concluded that despite some limited availability of the arbitration provision to plaintiffs, they were not bound to arbitrate this dispute. In regards to the email at issue, under the contract law of Connecticut or California - either of which could apply to this dispute - the email did not provide sufficient notice to plaintiffs of the arbitration provision, and plaintiffs therefore could not have assented to it solely as a result of their failure to cancel their enrollment in defendants' service. In regards to the hyperlink at issue, the court concluded that defendants forfeited the argument that plaintiffs were on notice of the arbitration provision through the hyperlink by failing to raise it in the district court. View "Schnabel et al. v. Trilegiant Corp. et al." on Justia Law

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The court issued an order and amended the opinion replacing [The district court excluded this evidence under its Alternative Dispute Resolution (ADR) Local Rule 6-11, which it read to create a "privilege" for "evidence regarding the details of the parties' negotiations in their mediation."] in lines 20-24, page 4909, with [The district court excluded this evidence under its Alternative Dispute Resolution (ADR) local rule on "confidential information," which it read to create a "privilege" for "evidence regarding the details of the parties' negotiations in their mediation." A local rule, like any court order, can impose a duty of confidentiality as to any aspect of litigation, including mediation. See N.D. Cal. ADR L.R. 6-12(a); see also 28 U.S.C. 652(d).] The petition for rehearing en banc was denied and no further petitions for rehearing or rehearing en banc may be filed.

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Cameron Winklevoss, Tyler Winklevoss, and Divya Narendra ("Winklevosses") sought to intervene after a district court entered judgment enforcing the Term Sheet and Settlement Agreement ("Settlement Agreement") signed by Facebook, the Winklevosses, and the Winklevosses' competing social network site, ConnectU, where the Settlement Agreement envisioned that Facebook would acquire all of ConnectU's shares in exchange for cash and a percentage of Facebook's common stock. At issue was whether the Settlement Agreement was enforceable where the Winklevosses claimed that they did not discover the facts that gave rise to their Rule 10b-5 claims under the Securities and Exchange Act of 1934 ("Act") until after they signed the Settlement Agreement's release of claims and whether the releases foreclosed their challenge to the Settlement Agreement where section 29(a) of the Act precluded a mutual release of unknown securities fraud claims arising out of negotiations to settle a pending lawsuit. The court held that the district court correctly concluded that the Settlement Agreement was enforceable and intended to release claims arising out of the settlement negotiations where the release was valid under section 29(a) when the Settlement Agreement was meant to end a dispute between sophisticated parties acting in an adversarial setting that was characteristic of litigation and could not be interpreted as leaving open the door to litigation about the settlement process.