Richard Raysman is a Partner in our
New York office.
Day in and day out, Internet users sign various forms of
agreements for a variety of reasons, from joining a dating site, to
participating in an online auction, to uploading media to a storage
locker. These agreements, sometimes known as browse-wrap or
click-wrap agreements, are necessary to memorialize and expedite
the use of a website pursuant to well-defined rules. More often
than not, these agreements substitute for more
"traditional" contracts, and they are thus construed as
such when contested in court.
A fundamental question intrinsic to contracts is whether an
enforceable agreement exists at all. A dispute over the
enforceability of an online agreement, and the arbitration
provision therein, arose recently in state court in Texas.
See Momentis U.S. Corp. v. Weisfeld, No.
05-13-01250-CV (Tex. App. July 23, 2014). Momentis
involved a dispute between a marketing company and two of its
"independent
