Two articles discussing two cases from California.
In Berman v. Freedom Financial Network LLC, discussed in this Lexology article by Om Alladi at Proskauer Rose, the Ninth Circuit held that an arbitration provision contained in websites was not sufficiently conspicuous to make it enforceable against consumers who ostensibly agreed to it by clicking on a “Continue” button.
On the other hand, Buckley has posted this article, also in Lexology, discussing a California state appellate decision in B.D. v. Blizzard Entertainment, Inc. holding that the “terms of an arbitration agreement contained in a defendant video game company’s online license agreement” were sufficiently conspicuous to make them enforceable.
The takeaway–or the unifying thread, such as it is–is that these cases are fact specific, and perhaps subject to a court’s view as to whether the glass is half full or half empty. Those seeking to provide for enforceable arbitration provisions should err in taking necessary steps to overcome any claims that a reasonable site visitor would not understand they were agreeing to arbitrate disputes.
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