InfoBytes Blog

Second Circuit Remands Case to District Court, Rules Web Provider Failed to Show Plaintiff Agreed to Arbitration

Recently, the Court of Appeals for the Second Circuit vacated in part a district court ruling, specifically its decision to dismiss a plaintiff’s putative-class action claim on the grounds that the plaintiff failed to plausibly state a claim for relief. Nicosia v. Amazon.com, Inc., No. 15-423-cv (2d Cir. Aug. 25, 2016). The district court concluded that a consumer was “bound by the mandatory arbitration provision in [a web provider’s] Conditions of Use” by placing an order on the web-based provider’s site; the Second Circuit was “not convinced.” The court reasoned that “[n]othing about the ‘Place your order’ button alone suggests that additional terms apply, and the presentation of terms is not directly adjacent to the ‘Place your order’ button so as to indicate that a user should construe clicking as acceptance.” The court further noted the web-based provider’s order page was distracting: “there appear to be between fifteen and twenty-five links on the Order Page, and various text is displayed in at least four font sizes and six colors (blue, yellow, green, red, orange, and black), alongside multiple buttons and promotional advertisements.” As a result, the court stated that it did “not hold that there was no objective manifestation of mutual assent here as a matter of law” but instead concluded that “reasonable minds could disagree on the reasonableness of notice.” The case was remanded for further proceedings.

Arbitration Terms of Use