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Posted: Thu Dec 26, 2024 5:46 am
Move responded to the lawsuit by filing a motion to compel arbitration. In ruling on the motion, the Court considered two issues: (1) whether the Court or an arbitrator would get to decide the question of “arbitrability” – that is, whether arbitration is the correct forum for resolving the dispute; and (2) whether the arbitration provision is unenforceable because Silverman did not receive adequate notice of the terms and conditions.
Because the terms and conditions expressly incorporate the band data rules and procedures of the American Arbitration Association, the Court found that questions of arbitrability – including Silverman’s argument that the arbitration provision had expired before the texts were sent – were to be decided by the arbitrator.
With regard to the second issue, Silverman argued that she did not have notice of the terms and conditions because they were sent to her as an inconspicuous hyperlink in the email confirming her order. She describes the link as unenforceable “browsewrap” – an agreement in which a user agrees to certain terms by merely visiting a website rather that by expressly indicating consent (such as by clicking on an “I agree” box). The Court rejected this argument, finding that Silverman had notice of the terms and conditions because they were sent to her after a telephone conversation with a Move representative who told her that she would be receiving a written confirmation of her order that would contain “all of the details and important information” about her purchase.
Based on these findings, the Court stayed the proceedings pending a determination by an arbitrator as to whether Silverman’s claim is arbitrable. If the arbitrator determines that it is, the Court will dismiss the action, including the class claims.
This case stands as a reminder that arbitration provisions are an effective tool in the defense of TCPA and other class action claims.
Because the terms and conditions expressly incorporate the band data rules and procedures of the American Arbitration Association, the Court found that questions of arbitrability – including Silverman’s argument that the arbitration provision had expired before the texts were sent – were to be decided by the arbitrator.
With regard to the second issue, Silverman argued that she did not have notice of the terms and conditions because they were sent to her as an inconspicuous hyperlink in the email confirming her order. She describes the link as unenforceable “browsewrap” – an agreement in which a user agrees to certain terms by merely visiting a website rather that by expressly indicating consent (such as by clicking on an “I agree” box). The Court rejected this argument, finding that Silverman had notice of the terms and conditions because they were sent to her after a telephone conversation with a Move representative who told her that she would be receiving a written confirmation of her order that would contain “all of the details and important information” about her purchase.
Based on these findings, the Court stayed the proceedings pending a determination by an arbitrator as to whether Silverman’s claim is arbitrable. If the arbitrator determines that it is, the Court will dismiss the action, including the class claims.
This case stands as a reminder that arbitration provisions are an effective tool in the defense of TCPA and other class action claims.