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  • District Court orders evidence showing customer agreed to arbitration clause in clickwrap agreement

    Courts

    On April 15, the U.S. District Court for the Northern District of California ordered a defendant “teledentristry” practice to file a declaration evidencing a clickwrap agreement that shows that the plaintiff assented to an arbitration agreement in an addendum to a retail installment contract. The plaintiff filed a putative class action claiming the defendant failed to comply with consumer protection licensing requirements and made misleading and false representations to consumers about the scope of its services and the provided dental care. The defendant moved to compel arbitration, stating that when customers create an account on the defendant’s website, they are required to affirmatively check a clickwrap checkbox to provide informed consent and must agree to the defendant’s terms and conditions before finalizing the registration process. The checkbox is not pre-checked, the defendant stated, and customers can view the full terms and conditions when clicking on the hyperlinks for each policy. The defendant maintained that if the plaintiff had clicked on the “Informed Consent” hyperlink, he would have been presented with the arbitration clause. The defendant also claimed that its servers log customers’ electronic assent to the terms and conditions and provided evidence purportedly showing that the plaintiff accepted the terms and conditions. The plaintiff countered that he did not assent to the arbitration agreement.

    The arbitration dispute concerns whether the plaintiff assented to the arbitration agreement, whether the agreement is valid and enforceable, and whether the agreement delegates questions of arbitrability to the arbitrator and not the court. According to the court, the defendant failed to show sufficient evidence that the plaintiff agreed to the arbitration agreement and stated it will issue a ruling once the defendant provides additional evidence showing what the plaintiff would have seen when he allegedly assented to the clickwrap agreement, as well as “the circumstances under which [plaintiff] received and allegedly assented to the addendum to the retail installment contract.” The court’s order also granted plaintiff’s motion to further amend the complaint but denied plaintiff’s motion to remand on the grounds that the Class Action Fairness Act of 2005 conferred subject-matter jurisdiction upon the court.

    Courts Arbitration Clickwrap Agreement Class Action California

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