No ‘Enforceable’ Pact Binds TCPA Claim vs. Safeway to Arbitration, Says Opposition
As held by the 9th U.S. Circuit Appeals Court, companies operating websites and mobile apps that seek to bind consumers to arbitration terms “must provide reasonably conspicuous notice of any such terms,” said plaintiff Ashley Ehrmantraut’s opposition Wednesday (docket 2:23-cv-01739)…
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in U.S. District Court for Arizona in Phoenix to Safeway’s Oct. 16 motion to compel her single Telephone Consumer Protection Act class-action claim to arbitration (see 2310170028). Ehrmantraut alleges that Safeway promotes its goods and services by using unsolicited text-messaging, and that it continues to text-message consumers after they opt out of those solicitations (see 2308230003). Safeway’s motion to compel contends the parties’ arbitration agreement requires Ehrmantraut to pursue her claim “in an individual arbitration and bars her from pursuing this class action in court.” But simply underlining a hyperlink to the arbitration terms is established conspicuousness of those terms is “insufficient,” said Ehrmantraut’s opposition. “The link must be distinguished utilizing some color to indicate the existence of a clickable hyperlink,” it said. Companies also must provide consumers “with notice of what action will manifest assent to any properly disclosed terms,” it said. Both forms that Safeway depicts in its motion to compel fail the 9th Circuit’s requirements, it said. The first form lacks the necessary assent language, “as it provides no notice of what action a consumer must take to manifest assent” to Safeway’s terms of use, which contain the arbitration provision, it said. The second form is deficient because the terms of use hyperlink “is only underlined but not distinguished from the surrounding text in blue, or any color, font,” it said. It’s instead in “the same shade of black as the rest of the surrounding text,” it said. Safeway accordingly failed to place Ehrmantraut “on inquiry notice of its arbitration provision and no enforceable agreement exists,” it said.