Ninth Circuit Blesses Amazon’s Terms of Service
Plaintiff 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.
It’s surprising to see this end up as an unpublished ruling.
Case citation: Wiseley v. Amazon.com, Inc., No. 15-56799 (9th Cir. Sept. 19, 2017)