“Browsewrap Agreement” Did Not Evidence That Plaintiffs Consented To Arbitrate, Plus It Was An Illusory Agreement That Could Be Changed At Any Time
Generally, we focus on California law, but the next case, arising from the United States District Court for the District of Nevada, is an important one for e-commerce. In Re Zappos.Com, Inc., Customer Data Security Breach Litigation, 3:cv-00325-RCJ-VPC MDL No. 2357 (filed 9/27/12).
This lawsuit arose from “a security breach of servers” belonging to Amazon.com, Inc., doing business as Zappos.com, and Zappos.com, Inc. (Zappos). Since Zappos is the largest online shoe store, we assume that quite a few people may have been affected.
Zappos moved to compel arbitration based on an arbitration provision in what the court characterized as a “browsewrap agreement.” A browsewrap agreement is one whereby a website owner seeks to bind users to terms and conditions “by posting the terms somewhere on the website, usually accessible through a hyperlink located somewhere on the website.” In contrast, “a ‘clickwrap’ agreement requires users to expressly manifest assent to the terms by, for example, clicking an ‘I accept’ button.”
Blog Bonus: “Zappos.com is an online shoe and apparel shop currently based in Henderson, Nevada. In July 2009, the company announced it would be acquired by Amazon.com in an all-stock deal worth about $1.2 billion. Since its founding in 1999, Zappos has grown to be the largest online shoe store.” Wikipedia (footnotes omitted).