Nguyen v. Barnes & Noble Inc.

Plaintiff filed suit on behalf of himself and a putative class of consumers whose Touchpad orders had been cancelled, alleging that Barnes & Noble had engaged in deceptive business practices and false advertising. On appeal, Barnes & Noble challenged the district court's denial of its motion to compel arbitration against plaintiff under the arbitration agreement contained in its website's Terms of Use. The court held that there was no evidence that the website user had actual knowledge of the agreement. The court also held that where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on - without more - is insufficient to give rise to constructive notice. Therefore, the court concluded that there is nothing in the record to suggest that those browsewrap terms at issue are enforceable by or against plaintiff, much less why they should give rise to constructive notice of Barnes & Noble's browsewrap terms. In light of the distinguishing facts, the district court did not abuse its discretion in rejecting Barnes & Noble's estoppel argument. Accordingly, the court held that plaintiff had insufficient notice of Barnes & Noble's Terms of Use, and thus did not enter into an arbitration agreement. The court affirmed the judgment of the district court.View "Nguyen v. Barnes & Noble Inc." on Justia Law