Nguyen sued B&N for violations of New York and California consumer protection law based on his failed attempt to buy a tablet computer advertised on B&N’s website for $102; B&N sent a confirmation email with a confirmation number, but then later cancelled his order (without charging his credit card). He alleged that, due to B&N’s representations, and its delay in informing him, he wasn’t able to obtain a tablet during the period it was on sale for the discounted price, and had to buy a more expensive substitute.
Nguyen argued that the ToU link was at the bottom of the B&N webpages, and that he didn’t affirmatively assent to these terms because he didn’t need to click on the terms to make a purchase, and he didn’t in fact click or read and agree to the terms. The court agreed with Nguyen. B&N didn’t put its notice in a location where users would “necessarily” see it, and didn’t give notice that the terms applied except within the ToU themselves. Thus, B&N couldn’t show that Nguyen had notice or that he affirmatively assented to the terms, which was the minimum required. Other cases finding plaintiffs bound involved more affirmative agreement, usually in the course of filling out forms.