Court Rejects “Browsewrap.” Is That Surprising?–Long v. ProFlowers
Plaintiff ordered “completed assembled” flowers from ProFlowers.com. Rather than being fully assembled flowers, he received a “do-it yourself kit in a box”. He brought a putative class action for unfair competition and CLRA violations.
Plaintiff said he was not aware of the terms and never clicked on the terms when he ordered or when he received the email. The court says that enforceability of so-called “browsewrap” agreements is something yet to be addressed by California appellate courts. (!) It looks to Specht and Nguyen, from the Second and Ninth Circuits respectively. The key question under those cases is whether the presentation of the website (the user experience) would put a reasonable consumer on inquiry notice. One way to do this is to include a hyperlink in close proximity to where the user must take action. (See Fagerstrom.) Even assuming proximity of the hyperlink to where the user must take action, courts finding these contracts enforceable have typically required something to advise the users to click on the terms. ProFlowers failed that test here. The court says:
The email follow up suffered from the same flaw. And although the court does not get into it, after-the-fact sent contract terms present their own contractual headaches. (See Trilegiant.) In any event, the court says that the emails also lack a call to action:
Nothing especially shocking about this case, except for the fact that in 2016 an e-commerce company is still fighting a battle with a customer over whether it properly formed a browsewrap agreement, and it’s the first published California appellate ruling to tackle this issue!!
As repeatedly noted here, it’s trivially easy for e-commerce companies to not screw up the contracting process. Users already have to enter in their payment information, and companies just have to require customers to check the box indicating assent. It ended up very costly here, as it usually is. Rather than going to arbitration (probably on an individual basis) the company has to deal with a possible class action. Perhaps that influenced the court somewhat?
I’m curious whether Provide Commerce will seek review in the California Supreme Court. That’s a tough call.
Eric’s comments: This case reminds me a lot of the Nguyen (involving Barnes & Noble) and Zappos (an Amazon subsidiary) cases. Both of those defendants (1) had ample opportunity to form a clickthrough agreement without any real risk of customer rejection, (2) had the legal expertise to know how to properly form the contract, and (3) nevertheless blew it. To me, the real story is what happened “behind the scenes.” Did the lawyers for these defendants discuss the possibility of implementing a proper clickthrough and get rejected by other constituents? Were the lawyers who knew better out of the workflow loop? Was this just an unfortunate oversight? If we can figure out what went wrong with the legal workflow, we can perhaps figure out how to avoid the next formation mistake.
Case citation: Long v. Provide Commerce, Inc., B257910 (Cal. Ct. App. Mar. 17, 2016) [pdf].