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.
B&N moved to compel arbitration and stay the lawsuit;
the court denied the motion. B&N
argued that, by placing an order online, Nguyen accepted the site’s Terms of
Use and agreed to arbitrate claims arising from his use of the site.
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.
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