Barnes & Noble, a bookseller with both an online presence and brick and mortar stores, tried to unload discontinued Hewlett-Packard Touchpad tablet computers through its website. Barnes & Noble underestimated the demand, resulting in its cancellation of Kevin Khoa Nguyen’s order of two Touchpads. Nguyen was forced to purchase substitute technology at a higher price. Nguyen brought a class action suit against Barnes & Noble, alleging deceptive business practices and false advertising under both California and New York law.
The defining feature of browsewrap agreements is that the user can continue to use the website or its services without visiting the page hosting the browsewrap agreement or even knowing that such a webpage exists.
(Opinion pdf page 10).
(Opinion pdf pages 12-13).
But the proximity or conspicuousness of the hyperlink alone is not enough to give rise to constructive notice, and Barnes & Noble directs us to no case law that supports this proposition.
While failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract, the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers. Given the breadth of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound.
(Opinion pdf pages 14 and 15).
This case is Nguyen v. Barnes & Noble Inc., No. 12-56628, Ninth Circuit Court of Appeals.