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Nguyen v. Barnes & Noble Inc.

United States Court of Appeals for the Ninth Circuit

May 16, 2014, Argued and Submitted, Pasadena, California; August 18, 2014, Filed

No. 12-56628


 [*1173]  NOONAN, Circuit Judge:

Barnes & Noble, Inc. ("Barnes & Noble") appeals the district court's denial of its motion to compel arbitration against Kevin Khoa Nguyen [**3]  ("Nguyen") pursuant to the arbitration agreement contained in its website's Terms of Use. In order to resolve the issue of arbitrability, we must address whether Nguyen, by merely using Barnes & Noble's website, agreed to be bound by the Terms of Use, even though Nguyen was never prompted to assent to the Terms of Use and never in fact read them. We agree with the district court that Barnes & Noble did not provide reasonable notice of its Terms of Use, and that Nguyen therefore did not unambiguously manifest assent to the arbitration provision contained therein.

We also agree with the district court that Nguyen is not equitably estopped from avoiding arbitration because he relied on the Terms of Use's choice of law provision.

We therefore affirm the district court's denial of Barnes & Noble's motion to compel arbitration and to stay court proceedings.

I. Background

The underlying facts are not in dispute. Barnes & Noble is a national bookseller that owns and operates hundreds of bookstores as well as the website <>. In August 2011, Barnes & Noble, along with other retailers across the country, liquidated its inventory of discontinued Hewlett-Packard Touchpads ("Touchpads"), [**4]  an unsuccessful competitor to Apple's iPad, by advertising a "fire sale" of Touchpads at a heavily discounted price. Acting quickly on the nationwide liquidation of Touchpads, Nguyen purchased two units on Barnes & Noble's website on August 21, 2011, and received an email confirming the transaction. The following day, Nguyen received another email informing him that his order had been cancelled due to unexpectedly high demand. Nguyen alleges that, as a result of "Barnes & Noble's representations, as well as the delay in informing him it would not honor the sale," he was "unable to obtain an HP Tablet during the liquidation period for the discounted price," and was "forced to rely on substitute tablet technology,  [*1174]  which he subsequently purchased . . . [at] considerable expense."

In April 2012, Nguyen filed this lawsuit in California Superior Court on behalf of himself and a putative class of consumers whose Touchpad orders had been cancelled, alleging that Barnes & Noble had engaged in deceptive business practices and false advertising in violation of both California and New York law. Barnes & Noble removed the action to federal court and moved to compel arbitration under the Federal [**5]  Arbitration Act ("FAA"), arguing that Nguyen was bound by the arbitration agreement in the website's Terms of Use.

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763 F.3d 1171 *; 2014 U.S. App. LEXIS 15868 **; 2014 WL 4056549

KEVIN KHOA NGUYEN, an individual, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. BARNES & NOBLE INC., Defendant-Appellant.

Subsequent History: Transfer denied by Khoa Nguyen v. Barnes & Noble Inc., 2015 U.S. Dist. LEXIS 187080 (C.D. Cal., Feb. 17, 2015)

Motion granted by, in part, Motion denied by, in part, Dismissed by, in part Nguyen v. Barnes & Noble, Inc., 2015 U.S. Dist. LEXIS 192636 (C.D. Cal., June 16, 2015)

Motion granted by, in part, Motion denied by, in part, Dismissed without prejudice by, in part Khoa Nguyen v. Barnes & Noble, Inc., 2015 U.S. Dist. LEXIS 187099 (C.D. Cal., Nov. 23, 2015)

Prior History:  [**1] Appeal from the United States District Court for the Central District of California. D.C. No. 8:12-cv-00812-JST-RNB. Josephine L. Staton, District Judge, Presiding.

Nguyen v. Barnes & Noble, Inc., 2012 U.S. Dist. LEXIS 122455 (C.D. Cal., Aug. 28, 2012)

Disposition: AFFIRMED.


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