How To Get Your Clickthrough Agreement Enforced In Court–Moretti v. Hertz
I recently addressed the evidentiary question in my post about JDate’s member agreement. The plaintiff alleged that she remembered agreeing to a different venue selection clause than the one invoked by JDate. In response, JDate introduced:
a sworn statement from its North American Director of Customer Support that the “Terms of Service were applicable to all subscribers of Spark Networks’ website at JDate.com and no material changes were made thereto during all four periods where Ms. Zaltz was a subscriber of Spark’s website at JDate.com” and the forum selection clause at issue was part of those Terms of Service and “remained unchanged during Ms. Zaltz’s subscription to JDate.com.”
This evidence was sufficient to get JDate’s venue selection clause enforced in a motion to transfer.
Recently, Hotwire’s clickthrough agreement survived a similar legal challenge. The court’s discussion (citations omitted and emphasis added):
I don’t understand why the court suggests that the plaintiff’s denial of checking-the-box would be relevant. Every plaintiff trying to defeat an online user agreement will make that denial, true or not. I believe a plaintiff should have to offer more rigorous/less self-serving evidence if it wants to legitimately rebut Hotwire’s evidence enough to create a meaningful factual dispute.
Either way, this ruling reinforces that simply having an airtight clickthrough agreement isn’t enough. You also should have a reliable chain of evidence to show (1) the agreement’s terms on any specific date, and (2) what user interactions were technologically required to manifest assent on that date. You should also assume that you’ll need to be able to introduce this evidence even if all of the relevant employees have gone elsewhere by the time the matter gets into court.
Case citation: Moretti v. Hertz Corporation, 2014 WL 1410432 (N.D. Cal April 11, 2014)
* Court Rules That Kids Can Be Bound By Facebook’s Member Agreement
* Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram
* Effort to Game Website User Agreement Rules Fails -– Traton News v. Traton Corp.
* JDate Member Agreement Upheld–Zaltz v. JDate (Forbes Cross-Post)
* How Zappos’ User Agreement Failed In Court and Left Zappos Legally Naked (Forbes Cross-Post)
* Barnes & Noble’s Online Contract Formation Process Fails –Nguyen v. Barnes & Noble
* Court Disregards Check-the-Box Agreement and Doesn’t Enforce Venue Clause — Dunstan v. comScore
* Forum Selection Clause in “Submerged” Terms of Service Presumptively Unenforceable — Hoffman v. Supplements Togo
* Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant
* Clickthrough Agreement With Acknowledgement Checkbox Enforced–Scherillo v. Dun & Bradstreet
* Contract Formed Even If Customer Never Received It–Schwartz v. Comcast