In Clickwrap Data Pass Contract Dispute. Second Circuit Sacks E-mail Notice Of Post-Transaction Terms

In an important opinion on the enforceability of online contract terms, Senior Circuit Judge Robert D. Sacks walks through the last decade and a half of online contracting law on the way to invalidating an arbitration provision in an agreement involving a so-called Web loyalty program. Judge Sacks concluded in Schnabel v. Trilegiant Corp., 2012 U.S. App. LEXIS 18875 (2d Cir. 2012), that an arbitration provision contained in an e-mail sent to consumers after they enrolled in such a program did not provide sufficient notice to support a conclusion that they had assented to arbitrate.

It is worth noting that two forms of notice of the arbitration provision were actually alleged to have been provided to the consumer: the post-transaction e-mail, and a clickable link to the "Terms and Conditions" of the agreement that was presented at the time of enrollment in the disputed program. The efficacy of the second form of notice was not before the court, however, because that