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Online Class Waivers and Arbitration Agreements: Determining Adequate Notice and Consent; Scope of Agreement

Defining Conspicuousness, Unconscionability, Waivers of Mass or Group Arbitration, Rise of Infinite Arbitration

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Thursday, January 23, 2025

1:00pm-2:30pm EST, 10:00am-11:30am PST

or call 1-800-926-7926
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This CLE webinar will discuss the enforceability of arbitration agreements with class action waivers in online sale of goods and use of services to consumers.

Description

Many companies have added arbitration agreements with class action waivers to the online sale of goods and use of services to consumers. The enforceability of these agreements is a question of state contract law. Courts will compel arbitration if (1) a valid agreement to arbitrate exists, and (2) the dispute falls within its scope.

An inconspicuous online arbitration agreement with a class waiver stands little chance of being enforced, so plaintiffs often assert lack of mutual agreement because the relevant terms and arbitration clause were not clearly noticeable. A number of circuit courts and state supreme courts have recently added to the jurisprudence of what constitutes reasonable notice of and assent to online class waivers and what amounts to conspicuous disclosures of terms requiring arbitration.

Recently, some companies have begun trying to create "infinite arbitration agreements" whereby buying services or goods from one company operates as an agreement to arbitrate with any other affiliated or related company under any and all circumstances. Significant challenges to this practice are expected.

Listen as the panel of class action attorneys discusses the enforceability of arbitration agreements with class action waivers to the online sale of goods and use of services to consumers.

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Outline

  1. Types of agreements: scrollwrap, clickwrap, sign-in wrap, and browsewrap
  2. Federal Arbitration Act
  3. Enforceability of online class waivers and arbitration agreements
  4. Recent cases
    1. Toth v. Everly Well Inc., __ F.4th __, 2024 WL 428467 (1st Cir. Sept. 25, 2024)
    2. Domer v. Menard Inc., 116 F.4th 686 (7th Cir. 2024)
    3. Marshall v. Georgetown Memorial Hospital, 112 F.4th 211 (4th Cir. 2024)
    4. Berman v. Freedom Financial Network L.L.C., __ F.4th __, 2022 WL 1010531 (9th Cir. Apr. 5, 2022)
    5. Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014)
    6. Chilutti vs. Uber Technologies Inc., 2023 WL 4611931 (Pa. Super. July 19, 2023)
    7. Edmundson v. Klarna Inc., __ F.4th __, Case No. 22-557 (2d Cir. Nov. 3, 2023)
  5. Infinite arbitration: McGinty v. Jia Wen Zheng, et Al., Superior Court of New Jersey Docket No. A-1368-23 (Sept. 20, 2024)

Benefits

The panel will review these and other important issues:

  • When are online arbitration agreements unenforceable for lack of consent?
  • How can plaintiffs obtain discovery pertaining to how a company collects and stores "clickbox" data?
  • When are terms conspicuous?

Faculty

Carroll, Jake
Jake Carroll
Partner
Nelson Mullins Riley & Scarborough

Mr. Carroll advises clients in the construction, manufacturing, and real estate industries handling matters relating...  |  Read More

Conroy, Melanie
Melanie A. Conroy
Partner
Pierce Atwood

Ms. Conroy focuses her practice on class action defense and complex commercial litigation. She has experience in...  |  Read More

McCarthy, Michael E.
Michael E. McCarthy
Shareholder
Greenberg Traurig

Mr. McCarthy focuses his practice on complex commercial litigation and class action defense. Hel also specializes in...  |  Read More

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You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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