They Should Have Used a Dickwrap–Weeks v. Interactive Life Forms

Brinan Weeks claims to be a comedian. I strongly suspect this lawsuit is an extension of his routine or that he’s using it to generate new material. He claims:

he purchased a device called a Stamina Training Unit (STU) from the website (the website) on or around September 21, 2021, on the basis of Interactive’s claims that the device would help him “perform better,” “last longer,” and “improve [his] sexual stamina.” Despite his frequent use of the product over several months, Weeks alleged “there was no improvement in [his] sexual performance or stamina.”

👀 Typically, allegations like this would prompt a plaintiff to sue pseudonymously. Indeed, the deposition questions practically write themselves. I can easily imagine how riffing on the deposition could be part of a Netflix comedy special. Hence, my skepticism about the seriousness of this lawsuit.

Weeks brought a standard consumer protection lawsuit. The vendor sought to send the case to arbitration per its TOS. Unsurprisingly, the sextech industry’s legal acumen is not exactly top-tier (remember the privacy issues with We-Vibe?), and the court rejects the arbitration request.

The court doesn’t include a screenshot but describes the vendor’s website:

the majority of the page is composed of advertisements for Interactive’s products. Near the bottom of the page is a section inviting the user to submit his or her email address “to receive our latest news [and] promotions!” Beneath that appears a menu in white text against a dark gray background containing links to portions of the website, as well as links to Interactive’s social media profiles and other links. Finally, at the very bottom of the page, in a much smaller typeface, in gray text against a black background, appears a link labeled “terms of use,” sandwiched between similar links for the “sitemap” and “privacy policy.”…we cannot imagine how this tiny, inconspicuous link would put a reasonably prudent consumer on inquiry notice of the terms of use.

Sounds like a “browsewrap” if that term has any meaning (I prefer to call it: “not a contract”). The court describes the general anti-browsewrap rule:

Prior cases hold that so-called “browsewrap” provisions on a website, which deem a consumer to have agreed to the website’s terms of use simply by using the website and without taking any affirmative steps to confirm knowledge and acceptance of the terms of use, generally do not form an enforceable agreement to arbitrate under California law.

The lower court cited three anti-browsewrap precedents: Sellers v. JustAnswer; Long v. Provide Commerce; and Nguyen v. Barnes & Noble. The vendor’s brilliant legal strategy: “Interactive acknowledges that it cannot demonstrate an agreement to arbitrate under the test set forth in these cases and instead urges us to ‘revisit and reject’ this precedent.” Seriously, if your brilliant litigation strategy is to ask the courts to toss decades of precedent, maybe you should rethink the plan?

The court explains:

California law does not categorically state that a contract can never be formed on the basis of browsewrap. Courts have considered browsewrap under the ordinary standard for inquiry notice…In practice, however, the standard a website must meet to place a user on inquiry notice of browsewrap is high.

The vendor argued that consumers expect that TOSes apply to their online activities, but the court says there’s no supporting empirical evidence. Thus, the court says it’s just as likely that “as internet commerce has grown in popularity, consumers have become more accustomed to clickwrap agreements, and might assume that if they do not click a checkbox indicating that they agree to a site’s terms of use, they are not bound.” I don’t agree with the latter presumption, but it’s a reminder that if you aren’t using a two-click formation process, you’re taking chances that you might get an unlucky draw of a judge who harbors these views.

The vendor also argued that an anti-browsewrap rule disregards a segment of sophisticated consumers. The court replies: “We decline to infer that any consumer who pursues a legal remedy in the first instance must necessarily be so sophisticated we can presume they pored over a website.” Also, the longstanding rule is to gauge the expectations of a “reasonably prudent user.”

Finally, the vendor invoked the FAA, which triggers a stern rebuke from the court:

Interactive further claims that the FAA preempts California law concerning browsewrap provisions. We now make express what was implicit in prior cases: the FAA does no such thing.

Case Citation: Weeks v. Interactive Life Forms, LLC, B323430 (Cal. App. Ct. March 25, 2024). The defense law firm’s name is Sullivan Johnson. No, I’m not making that up.