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United States Court of Appeals for the Ninth Circuit
October 21, 2021, Argued and Submitted, San Francisco, California; April 5, 2022, Filed
WATFORD, Circuit Judge:
We revisit an issue first addressed by our court in Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014): Under what circumstances can the use of a website bind a consumer to a set of hyperlinked "terms and conditions" that the consumer never saw or read?
In this case, plaintiffs used defendants' websites but did not see a notice in fine print stating, [*5] "I understand and agree to the Terms & Conditions which includes mandatory arbitration." When a dispute arose and plaintiffs filed this lawsuit, defendants moved to compel arbitration, arguing that plaintiffs' use of the websites signified their agreement to the mandatory arbitration provision found in the hyperlinked terms and conditions. The district court rejected this argument, and so do we. Plaintiffs did not unambiguously manifest their assent to the terms and conditions when navigating through the websites, and as a result they never entered into a binding agreement to arbitrate their dispute. We therefore affirm the district court's order denying defendants' motion to compel arbitration.
Defendant Fluent, Inc. is a digital marketing company that generates leads for its clients by collecting information about consumers who visit Fluent's websites. Fluent's websites offer rewards like gift cards and free product samples as an enticement to get consumers to provide their contact information and answer survey questions. Fluent then uses the information it collects in targeted marketing campaigns conducted on behalf of its clients.
The plaintiffs involved in this appeal, Stephanie [*6] Hernandez and Erica Russell, each visited a website operated by Fluent. The two websites differed in certain respects, but as described below, both contained a set of hyperlinked terms and conditions that included a mandatory arbitration provision, the enforceability of which is the principal issue raised on appeal.
According to Fluent's records, Hernandez visited the Fluent website www.getsamplesonlinenow.com from a desktop computer. Because Hernandez had visited a Fluent website before and had previously entered some of her contact information, the webpage she saw stated, in large orange letters across the top of the page, "Welcome back, stephanie!" See Appendix A.3 In the middle of the screen, the webpage proclaimed, "Getting Free Stuff Has Never Been Easier!" and included brightly colored graphics. In between those two lines of text appeared a box that stated at the top, "Confirm your ZIP Code Below," followed immediately by a pre-populated text box displaying the zip code 93930. Below that, the page displayed a large green button inviting Hernandez to confirm the accuracy of the zip code so that she could proceed to the next page in the website flow. The text inside the button stated, [*7] in easy-to-read white letters, "This is correct, Continue! >>." Clicking on this button led to the next page, which asked Hernandez to provide personal information in order to obtain free product samples and promotional deals.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2022 U.S. App. LEXIS 9083 *; 30 F.4th 849
DANIEL BERMAN; STEPHANIE HERNANDEZ; ERICA RUSSELL, Plaintiffs-Appellees, v. FREEDOM FINANCIAL NETWORK, LLC; FREEDOM DEBT RELIEF, LLC; FLUENT, INC.; LEAD SCIENCE, LLC, Defendants-Appellants.
Prior History: [*1] Appeal from the United States District Court for the Northern District of California. Yvonne Gonzalez Rogers, District Judge, Presiding. D.C. No. 4:18-cv-01060-YGR.
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Business & Corporate Compliance, Pretrial Matters, Alternative Dispute Resolution, Judicial Review, Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, De Novo Review, Arbitration, Federal Arbitration Act, Orders to Compel Arbitration, Validity of ADR Methods, Abuse of Discretion, Judgments, Relief From Judgments, Altering & Amending Judgments, Arbitration Agreements, Arbitrability, Contract Formation, Acceptance, Meeting of Minds, Apparent Acceptance, Overt Acts, Computer & Internet Law, Electronic Contracts, Types of Transactions, Clickwrap Licenses, Copyright Law, Assignments & Transfers, Licenses, Browsewrap & Clickwrap Licenses, Contracts, Formation, Newly Discovered Evidence, Judicial Officers, Judges, Discretionary Powers, Extraordinary Circumstances