Advertisement

April 24, 2014

Browserwrap Agreements May Fail to Protect from Cyberliability

Connecticut and national companies doing business online may not be sufficiently protected by their Terms of Service agreements. In the ongoing In re Zappos.com, Inc., Customer Data Security Breach Litigation, the defendant, Zappos.com, Inc., lost a major decision preventing its arbitration and anti-class action provisions from taking effect. Zappos.com notified its customers of a major data breach in January 2012. Several of the customers brought lawsuits against Zappos.com, which were joined in the federal district court in Nevada. Zappos.com sought to apply its Terms of Service appearing on its website to force the Plaintiffs into individual arbitrations. The Court denied that request.

The court, relying in part on a Second Circuit precedent (which governs Connecticut), found that the Terms of Service was unenforceable. Instead of being a "clickwrap" type of agreement, forcing a consumer to manifest express assent, Zappos.com merely had the Terms of Service buried as one of many links on its website. Simply having a link, without requiring the consumer affirm their assent, is known as "browserwrap" and may be insufficient to ensure the consumer had notice of its terms.

A second reason the agreement was unenforceable was that the Terms of Service gave Zappos.com the right to change the agreement (including the agreement to arbitrate) at any time without notice. In effect, it meant there was no actual agreement since it was not fixed. While Zappos.com could always change the terms and apply them to new consumers (assuming it was in the clickwrap variety), existing customers would not have had a means of notice and acceptanc

e.

© 2014 by Raymond Law Group LLC.

About the Author

Senior Associate

Jay Marshall Wolman has served as an advocate or neutral in hundreds of contested matters, appearing before state and federal courts and agencies in Massachusetts and throughout the United States. His experience includes commercial disputes, consumer class actions, and personal injury, including products liability. As a civil litigator, a substantial portion of Attorney Wolman's practice has included representation of employers and employees in workplace matters, including discrimination on the bases of race, sex, pregnancy and disability, wage and hour disputes, occupational safety...

860-266-4925

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.