Ninth Circuit Blesses Amazon’s Terms of Service

Screen Shot 2017-09-22 at 8.13.13 AMPlaintiff appealed from a district court order granting Amazon’s motion to compel arbitration based on an arbitration clause in its “Conditions of Use.” My blog post on the trial court ruling: “Court Enforces Arbitration Clause in Amazon’s Terms of Service–Fagerstrom v. Amazon“. In a memorandum opinion, the Ninth Circuit affirms because:

  • Washington law appropriately applies (and the result is the same under California law)
  • the notices on the account creation and checkout pages were “in sufficient proximity” to give plaintiff a “reasonable opportunity to understand” that he’d be bound by the terms
  • there is no procedural unconscionability since there’s no obligation to “call out” arbitration
  • incorporation by reference to the AAA rules is acceptable (despite AAA’s renaming of certain rules)
  • the terms are also not substantively unconscionable (either due to the unilateral modification clause, the carve-out for intellectual property claims, or the legal fee provision)

This is welcome news for Amazon of course, whose formation process was faulted by the Second Circuit in Nicosia.

Ninth Circuit case law on online contract formation is unpredictable. Contrast the reasoning and result in this case with Tompkins v. 23andMe and Nguyen v. Barnes and Noble.

It’s surprising to see this end up as an unpublished ruling.

Case citation: Wiseley v., Inc., No. 15-56799 (9th Cir. Sept. 19, 2017)

Related posts:

Judge Declines to Enforce Uber’s Terms of Service–Meyer v. Kalanick

Anarchy Has Ensued In Courts’ Handling of Online Contract Formation (Round Up Post)

Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant

Evidentiary Failings Undermine Arbitration Clauses in Online Terms

Court Enforces Arbitration Clause in Amazon’s Terms of Service–Fagerstrom v. Amazon

‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause–Starke v. Gilt

Some Thoughts On General Mills’ Move To Mandate Arbitration And Waive Class Actions

Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant

Users Can’t Sue Sony for Changing Online Terms to Require Arbitration – Fineman v. Sony Network Entertainment

Qwest Gets Mixed Rulings on Contract Arbitration Issue—Grosvenor v. Qwest & Vernon v. Qwest

Zynga Wins Arbitration Ruling on “Special Offer” Class Claims Based on Concepcion — Swift v. Zynga

“Modified Clickwrap” Upheld In Court–Moule v. UPS

Facebook Gets Bad Ruling In Face-Scanning Privacy Case–In re Facebook Biometric Information Privacy Litigation

Defective Call-to-Action Dooms Online Contract Formation–Sgouros v. TransUnion

Court Rejects “Browsewrap.” Is That Surprising?–Long v. ProFlowers

Telephony Provider Didn’t Properly Form a “Telephone-Wrap” Contract–James v. Global Tel*Link

2H 2015 Quick Links, Part 7 (Marketing, Advertising, E-Commerce)

Second Circuit Enforces Terms Hyperlinked In Confirmation Email–Starkey v. G Adventures

If You’re Going To Incorporate Online T&Cs Into a Printed Contract, Do It Right–Holdbrook v. PCS

Clickthrough Agreement Upheld–Whitt v. Prosper

Online Magazine Gets Section 230 Protection For Third Party Article–AdvanFort v. International Registries

The “Browsewrap”/”Clickwrap” Distinction Is Falling Apart

Safeway Can’t Unilaterally Modify Online Terms Without Notice

Clickthrough Agreement With Acknowledgement Checkbox Enforced–Scherillo v. Dun & Bradstreet

How To Get Your Clickthrough Agreement Enforced In Court–Moretti v. Hertz

Judge Can’t Decide if Facebook’s User Agreement is a Browsewrap, But He Enforces It Anyways–Fteja v. Facebook