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Under Massachusetts law, "conspicuous" means that a terms is so written, displayed or presented that a reasonable person against which it is to operate ought to have noticed it. Mass. Gen. Laws ch. 106, § 1-201(b)(10). Whether or not a term is conspicuous is for the court to decide. Mass. Gen. Laws ch. 106, § 1-201(b)(10). Several nonexhaustive examples of general characteristics that make a term conspicuous include using larger and contrasting font, the use of headings in capitals, or somehow setting off the term from the surrounding text by the use of symbols or other marks. In addition, when the terms of the agreement are only available by following a link, the court must examine the language that was used to notify users that the terms of their arrangement with the service provider could be found by following the link, how prominently displayed the link was, and any other information that would bear on the reasonableness of communicating the terms.
This case concerns the enforceability of an arbitration clause contained in an online contract. Plaintiffs-Appellants Rachel Cullinane, Jacqueline Núñez, Elizabeth Schaul, and Ross McDonagh, (collectively, "Plaintiffs"), filed this putative class action in Massachusetts Superior Court on behalf of themselves and other users of a ride-sharing service in the Boston area against Defendant-Appellee Uber Technologies, Inc. ("Uber"). In their complaint, Plaintiffs alleged that Uber violated a Massachusetts consumer-protection statute by knowingly imposing certain fictitious or inflated fees. Uber removed the case to the United States District Court for the District of Massachusetts, and filed a motion to compel arbitration and stay or dismiss the case. The district court granted Uber's motion to compel arbitration and dismissed the complaint.
Was the arbitration clause contained in the online service's agreement enforceable?
The court held that users of Uber were not reasonably notified of the terms of the service's agreement requiring arbitration of all disputes because the notice of the agreement was not conspicuous within the meaning of Mass. Gen. Laws ch. 106, § 1-201(b)(10) where the service did not require the users to click a box agreeing to the terms, the link to the agreement was not in the common form for a hyperlink, and the hyperlink was of similar size and emphasis as other terms on the page.