Washington District Court Rules ISP Contract Terms Were Not Reasonably Conspicuous

Arbitration

On January 3, the U.S. District Court for the Western District of Washington denied an Internet service provider’s (ISP) motion to compel arbitration, holding in part that the ISP’s terms of service agreement containing the arbitration clause was not reasonably conspicuous. Kwan v. Clearwire Corp., No. C09-1392JLR, 2012 WL 32380 (W.D. Wash. Jan. 3, 2012). In this case, plaintiffs filed suit on behalf of a putative class against an ISP and its debt-collection vendors for violations of federal and state consumer-protection laws based on the defendants’ repeated attempts to collect payments the ISP claimed it was due under mobile Internet service contracts. The ISP moved to compel arbitration, asserting (i) that its customers are required to acknowledge and agree to certain terms of service, including an agreement to arbitrate disputes, before using the ISP’s services (i.e., a so-called “clickwrap agreement”); and (ii) that the ISP sent to customers order-confirmation e-mails that also included a link to the terms of service (i.e., a so-called “browsewrap agreement”).

Relying on the Second Circuit’s analysis in Specht v. Netscape Comms. Corp., 605 F.3d 17 (2nd Cir. 2002), the court identified as the central issue whether the consumer had notice of and access to the terms and conditions of the contract prior to the conduct that allegedly indicated the consumer’s assent. With regard to the confirmation e-mail, the court found that the e-mail did not contain a direct link to the terms of service but rather a link to the ISP’s homepage that provided subsequent links to the terms of service. Further, the link that was provided in the confirmation e-mail did not appear until the third page of the e-mail. Thus, the court held that access to the terms of service did not constitute sufficient or reasonably conspicuous notice of those terms. However, the court also held that the consumers’ acceptance of terms through the clickwrap agreement would have bound them to the terms of service and the arbitration clause, but that issues of fact exist as to whether the named plaintiffs actually clicked to accept the terms. The court deferred resolution of those issues for a factual hearing, as well as a decision on whether a consumer who specifically declines to accept the terms of service is still bound by those terms by virtue of simply accessing the terms of service.