Takeaway: We have recently written about
the challenges involved in enforcing "browsewrap"
contracts. See
Internet terms of use: Ninth Circuit enforces arbitration agreement
accessible through browsewrap hyperlink (August 31,
2020). The Second Circuit recently addressed this issue in
declining to enforce browsewrap terms and conditions containing an
arbitration agreement. The decisions in this area show that a
hyperlink must be reasonably conspicuous to put a consumer on the
requisite inquiry notice to render terms and conditions
enforceable.
In Arnaud v. Doctor's Associates Inc., ___ F.
App'x ___, No. 19-3057-cv, 2020 WL 5523507, at *1 (2d Cir.
Sept. 15, 2020), Luis Arnaud entered his phone number on a
promotional page of Subway's website and clicked a box labeled
"I'M IN" to receive a free Subway sandwich the next
time he purchased a 32-ounce drink. The promotional page
included a hyperlink to terms and conditions that included an
arbitration agreement.
