Brett Long, a California resident, bought Mother’s Day flowers for his mother, living in Kansas, from ProFlowers.com. Long thought he was buying a completely assembled bouquet, but the flowers arrived as a do-it-yourself-kit. Long filed suit in California state court against Provide Commerce, Inc., an online retailer and owner of ProFlowers.com. Long alleged violations of California state statutes and sought to bring a class action.
Arbitration is an alternative to bringing a lawsuit to settle a dispute. In arbitration, the parties give up their right to sue in court in favor of letting an arbitrator settle their dispute. Policy considerations favor enforcing arbitration agreements, but the parties must still objectively agree to arbitrate before arbitration provisions can be enforced. The threshold question in any petition to compel arbitration is whether the parties agreed to arbitrate.
The basic rules of contract formation apply to contracts formed on the Internet. Did the parties mutually assent to form a contract?
California law is clear—an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious.
(Opinion pdf page 7).
Internet contracts can be formed either through clickwrap or browsewrap. Clickwrap contract formation requires the website user to click on an “I agree” box after terms and conditions of use are presented. Browsewrap contracts are formed by the website user remaining on the website without taking other action. This dispute involves a browsewrap agreement.
(Opinion pdf pages 7 – 8).
(Opinion pdf pages 12 – 13).
The Court of Appeal disagreed with Provide’s contention that its order confirmation email to Long provided the required notice. Long would have had to scroll down past a summary of the order details, several logos and customer service information to find a hyperlink to “Terms,” printed in grey typeface on a white background. This is not a conspicuous notice that would put a reasonably prudent Internet consumer on notice to investigate for a binding arbitration clause.
The Court of Appeal opined on the requirements for an enforceable browsewrap agreement:
(Opinion pdf pages 13 – 14).
This case is Long v. Provide Commerce, Inc., No. B257910, California State Court of Appeal, Second District, Division Three.