On March 17, 2016, the California Court of Appeals, 2^nd District, issued an opinion certified for publication affirming a ruling of the Los Angeles Superior Court denying a petition to compel arbitration by defendant Provide Commerce, Inc., owner of ProFlowers.com.  Long v. Provide Commerce, 216 Cal. App. LEXIS 199 (Case No. B257910).  The court found notice of the “browsewrap” Terms of Use agreement was inadequate to bind the user to the TOU where he was not required to affirmatively consent and where the overall design of the website would not have placed a reasonably prudent user on notice of the agreement.

According to the court:

“no California appellate court has yet addressed what sort of website design elements would be necessary or sufficient to deem a browsewrap agreement valid in the absence of actual notice. Accordingly…our analysis is largely guided by two federal cases from the Second and Ninth Circuit Courts of Appeals, each of which considered the enforceability of a browsewrap agreement applying the objective manifestation of assent analysis dictated by California law. [citing Specht v. Netscape Communs. Corp. (2d Cir. 2002) 306 F.3d 17, 30 fn. 13, and Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1175.] In keeping with the principles articulated in these authorities, we conclude the design of the ProFlowers.com website, even when coupled with the hyperlink contained in the confirmation email, was insufficient to put Plaintiff on inquiry notice of the subject Terms of Use.”

Long, supra, at 13.  The court goes on to quote the following “bright line rule for determining the validity of browsewrap agreements” as announced in Nguyen:

“[W]here a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.”

Id. at 17 (quoting Nguyen, supra, at pp. 1178-1179.)  “Typically that ‘something more’ had taken the form of an explicit textual notice warning users to ‘Review terms’ or admonishing users that by clicking a button to complete the transaction ‘you agree to the terms and conditions in the [agreement].’” Id. at 16-17.  In this case no such explicit textual notice was provided.

The court’s opinion may be found at the following link:

http://www.courts.ca.gov/opinions/documents/B257910.PDF