eCommerce Best Practice: Require Customers To Click "I Agree"

The Ninth Circuit recently affirmed what many industry players already recognized: when conducting eCommerce with consumers, the safest practice for businesses looking to enforce their website's terms is to include obvious indicia of consumer consent, possibly through use of a "clickwrap" agreement (where website users are required to affirmatively click on an "I agree" box).

In Nguyen v. Barnes & Noble Inc., 2014 U.S. App. LEXIS 15868 (9th Cir. August 18, 2014), a customer sued Barnes & Noble in federal court over a cancelled purchase. Barnes & Noble cited the arbitration provision in its website terms of use and asked the court to force the parties to resolve the matter out of court. (Many corporations view arbitration as a less-expensive means of dispute resolution.) However, the terms on the Barnes & Noble website were presented as a "browsewrap" agreement, meaning the terms of use were posted on the website via a hyperlink at the bottom of the screen; the