Operators of social media platforms and other websites must manage a large number of risks arising from their interactions with users. In an effort to maintain a degree of predictability and mitigate some of those risks, website operators routinely present users with terms of use or terms of service (“Website Terms”) that purport to govern access to and use of the relevant website and include provisions designed to protect the website operators, such as disclaimers, limitations of liability and favorable dispute resolution provisions. But are such Website Terms enforceable against users and do they actually provide the protection that website operators seek? The answer may well depend on how the Website Terms are implemented.

Clickwrap vs. Browsewrap

Website Terms typically come in two flavors: “clickwrap” terms, where users are required to accept by taking some affirmative action such as checking a box or clicking an “I accept” button before using the website, and “browsewrap” terms that are provided to users through a link (often, but not always, at the bottom of the page) and purport to bind users even without any affirmative manifestation of acceptance. In determining whether Website Terms are enforceable against users, courts focus on whether users had notice of the terms and actually agreed to be bound by them. Not surprisingly, therefore, courts tend to look more favorably on clickwrap implementations as compared to browsewrap terms.

For example, in Fteja v. Facebook, Inc. (S.D.N.Y. 2012), the plaintiff claimed that Facebook disabled his Facebook account without justification and for discriminatory reasons, causing emotional distress and harming his reputation. Facebook moved to transfer the case to federal court in Northern California based on the forum selection clause in the Facebook terms of use, but the plaintiff claimed that he had never agreed to the terms of use. The court concluded that the plaintiff was bound by the Facebook terms, however, because he had checked a box indicating his acceptance when he registered for Facebook.

In contrast, Barnes & Noble had less luck enforcing its terms of use in Nguyen v. Barnes & Noble, Inc. (9th Cir. August 18, 2014). In Nguyen, the plaintiff ordered a tablet from Barnes & Noble at a discounted price but Barnes & Noble canceled his order. The plaintiff sued and Barnes & Noble moved to compel arbitration based on an arbitration clause included in its website’s browsewrap terms of use. The court held that Barnes & Noble’s terms could not bind the plaintiff, despite being presented through a “conspicuous” link during the checkout process, because Barnes & Noble did not prompt users to affirmatively assent to the terms.

Continue Reading Implementing and Enforcing Online Terms of Use

Website operators often take for granted the enforceability of their websites’ terms of service. In a recent order issued in a case from the Central District of California, Nguyen v. Barnes & Noble, Inc., Judge Josephine Tucker reminds us that such presumptions are not necessarily correct: terms of service that do not require an affirmative manifestation of assent from a website user may not always be upheld in court.

Many website operators, particularly Internet retailers and operators of ecommerce sites, use “clickwrap” (or “clickthrough”) agreements to govern use of their sites. With clickwrap agreements, the website operator typically presents its standard terms of use and then requires the user to click an “Accept” or “I Agree” button. By clicking the button, users affirmatively manifest their intent to be bound by the terms. Other website operators use “browsewrap” agreements—terms of agreement that are usually accessible through a hyperlink at the bottom of a web page. Although, as a practical matter, few people actually read them, browsewraps are also widely used.

Both clickwraps and browsewraps are contracts of adhesion in legal parlance. That is, they are contracts that are offered on a “take it or leave it” basis with no opportunity for negotiation. A user who does not wish to be bound by the proffered terms can click “Do Not Accept” or, for a browsewrap, simply leave the website. On the other hand, a user who is willing to be bound can indicate such assent by clicking “I Accept” or by continuing to browse the website. Reasonable people may disagree regarding whether these actions truly manifest a user’s assent to be bound by the relevant contract terms, but courts have frequently upheld the enforceability of both clickwrap and browsewrap terms of use (subject, of course, to the unconscionability concerns raised by any contract of adhesion). As discussed in the remainder of this article, however, browsewrap terms of use often encounter a greater degree of scrutiny from courts due to the lack of any affirmative acceptance by users.

The enforceability of browsewrap terms of use has been held to depend on whether a website user has knowledge—either actual or constructive—of the applicable terms, because users cannot agree to be bound by terms unless they know what those terms are. Courts considering browsewrap enforceability issues often grapple with the question of whether the defendant was given notice of the applicable terms sufficient to impute such knowledge. For example, in Register.com, Inc. v. Verio, Inc., the court determined that numerous and repeated queries by an automated software program were sufficient to show that Verio knew of, and was bound by, Register.com’s terms (although Verio had also admitted that it had actual knowledge of the terms). On the other hand, in Ticketmaster Corp. v. Tickets.com, Inc., on the other hand, the court held that a small link to terms of use that was visible only if the user scrolled down to the bottom of the web page was insufficient to establish notice. But, three years later, the same court (in the same case, no less) ruled that more prominent notice on the site’s home page was adequate notice. While a court’s determination of sufficient notice may vary in each case, it is clear that the more readily available and conspicuous browsewrap terms of use are, the more likely it is that a court will find that the user knew of, and was bound by, the terms.

That brings us to Nguyen v. Barnes & Noble, Inc. In Nguyen, the plaintiff’s claims arose from a Barnes & Noble promotion that offered computer tablets at a discounted price. Although Nguyen submitted an order to purchase a tablet at the promotional price, Barnes & Noble canceled his order the next day, citing an oversale of its tablet inventory. As a result, Nguyen alleged that he was “forced to rely on substitute tablet technology, which he subsequently purchased . . . [at] considerable expense.” In April 2012, Nguyen filed suit, alleging various consumer protection violations, including false advertising, unfair competition, and breach of contract, under California and New York law. Barnes & Noble then moved to compel arbitration based on an arbitration clause included in its website’s browsewrap terms of use. The question before the court was whether, given the existing facts, the arbitration clause was enforceable against Nguyen.

The court ultimately held that the arbitration clause was not enforceable because the terms of use agreement itself was not enforceable. According to Judge Tucker, Barnes & Noble’s website terms of use could not bind Nguyen because Barnes & Noble “did not position any notice even of the existence of its ‘Terms of Use’ in a location where website users would necessarily see it, and certainly did not give notice that those Terms of Use applied, except within the Terms of Use” (emphasis in original). Due to this lack of adequate notice, Nguyen did not know and, in Tucker’s view, should not necessarily have known of Barnes & Noble’s terms of use. Because Nguyen did not have knowledge of the terms, he could not be bound by them. Therefore, Barnes & Noble could not compel arbitration in its dispute with Nguyen.

In light of Nguyen and the other cases discussed above, website operators should consider using clickwraps that require affirmative acceptance where possible, rather than relying on browsewraps to enforce their terms of use. A simple click can be the difference between an agreement’s being found enforceable or not. For ecommerce sites or any site that requires registration prior to use, clickwraps are relatively easy to implement—for example, at the point of purchase or when the user registers—without negatively affecting the user experience. Best practices for clickwraps include presenting terms of service before payment, allowing for easy reading of all terms, allowing users to print or save a copy of the terms, offering a prominent option to decline the terms, providing an easy way for users to find the terms on the site at any time after payment or registration, and giving users notice of (and requiring users to accept) any updates and changes to the terms of use.

For other sites, including some social media sites, the story may differ. Many social media sites—for example, Pinterest, Twitter, and YouTube—allow users to access at least some content and functionality without registering. With sites such as these, there may be no real opportunity to obtain affirmative acceptance of terms of use without degrading the user experience, so a clickwrap is simply not a practical option. For operators of such websites, the most important lesson of Nguyen and the other cases discussed above is that the question of enforceability often turns on whether the user has sufficient notice of the terms of use. Thus, website operators can increase the likelihood that their terms of use will be enforced if links to such terms are prominently displayed, preferably “above the fold” so that a user will be able to see the link without scrolling down the page. As Nguyen and the other cases illustrate, an operator who places links to terms of use in a tiny font buried at the bottom of a page may be in for an unpleasant surprise if those terms ever need to be enforced.

In the recent online contracting case of Fteja v. Facebook, Inc., a New York federal court held that a forum selection clause contained in Facebook’s Statement of Rights and Responsibilities (the “Terms”) was enforceable because the plaintiff assented to the Terms when registering to use Facebook.  The court’s analysis and holding followed the recent trend of de-emphasizing the distinction between “clickwrap” and “browsewrap” agreements and instead focusing on whether the user was provided  with actual or constructive notice of the agreement’s terms and conditions.  In this case, the result turned on whether Facebook’s Terms were reasonably communicated to the plaintiff prior to his use of the Facebook.com site.

The plaintiff, an active Facebook user, brought the action against Facebook in New York state court asserting that Facebook disabled his Facebook.com account without justification and for discriminatory reasons.  He claimed that the disabling of his account hurt his feelings, inflicted emotional distress and assaulted his good reputation among his friends and family.

Facebook removed the lawsuit to New York federal court on the basis of diversity of citizenship, and then moved to transfer the action to federal court in Northern California, citing the forum selection clause in the Terms.  Facebook argued that because the plaintiff clicked through Facebook’s registration page and expressly acknowledged that he read and agreed to the Terms (including the forum selection clause), the Terms were valid and enforceable.  The plaintiff responded that there was no proof that he agreed to the forum selection clause and that he did not remember agreeing to the Terms.

The court reviewed Facebook’s registration process, noting that after a new user provides his or her personal information and clicks an initial “Sign Up” button, he or she is directed to a security page that requires the new user to input a series of letters and numbers.  Below the box where the new user enters the letter/number combination, the page displays a second “Sign Up” button that is immediately followed by the phrase: “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service.”  The phrase “Terms of Service” is underlined, indicating that it is hyperlinked to the Terms.

After this review of Facebook’s registration process, the court then described the historical development of online contracting law, referencing the Register.com, Inc. v. Verio, Inc., Specht v. Netscape Communications Corp., and Hines v. Overstock.com, Inc. decisions, and the importance of establishing mutual manifestation of assent.  Following this discussion, the court pointed out that Facebook’s Terms are “somewhat like a browsewrap agreement in that the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else – click ‘Sign Up’ – to assent to the hyperlinked terms,” and that, unlike some clickwrap agreements, a new Facebook user can click to assent whether or not he or she has been presented with the Terms.  Finally, the court looked at the plaintiff’s level of sophistication and stated that an Internet user whose social networking was so prolific that losing Facebook would cause him mental anguish should understand that the hyperlinked phrase “Terms of Service” really means “Click Here for Terms of Service,” thereby establishing constructive knowledge of the Terms.

The court concluded that the plaintiff’s registration for Facebook by clicking the “I accept” button constituted his assent to the Terms (including the forum selection clause) even though he may not have actually reviewed the hyperlinked Terms.  The court then, after considering the public policy ramifications of the transfer decision, held that the forum selection clause was enforceable and directed the action to be transferred to federal court in Northern California.

Key Take Aways.  While the Fteja v. Facebook, Inc. case illustrates that U.S. courts may enforce a hybrid browsewrap/clickwrap agreement even where the user does not have actual knowledge of the terms and conditions, the safest approach for a website operator is to structure its online terms of service as a traditional clickwrap agreement that requires users to scroll through the terms and conditions and then click an “I accept” button.  In situations where this structure is not commercially reasonable, the following tips can be used to help establish user assent under U.S. law through constructive knowledge of the terms and conditions of an online agreement:

  • Prominent Notice:  Include a prominent notice that cannot be skipped by users; such notice ideally should state that the use of service is subject to the hyperlinked terms of service.  Such notice should be provided in reasonably large font and contrasting colors that do not blend into the website’s background.  If possible, include an “I accept” button next to the notice.
  • Easy Access/Full Disclosure:  Provide easy access to the full text of the terms of service via a clearly identifiable hyperlink that links to a downloadable and printable version of the terms of service.  The hyperlink should be provided next to the notice and an “I accept” button (if any).
  • Readability:  Structure and phrase the terms of service so that they can be reasonably understood by users based on their anticipated level of sophistication.
  • Highlight Important Terms:  Make sure that any particularly important terms are clearly identifiable and not hidden.  If the website operator is especially concerned about an issue (e.g., enforceability of the limitation of liability provision of the terms of service), consider expressly referencing the concern as part of the general notice (e.g., “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service, including the limitations on vendor’s liability described therein”).

Companies that provide services to consumers have often sought to reduce the risk of class action lawsuits by requiring that their customers agree to arbitrate any disputes.  Such arbitration agreements may require customers to arbitrate on an individual basis only, with customers being obligated to waive any rights they might otherwise have to pursue claims through class actions.  In recent years, many such arbitration provisions, particularly those that included class action waivers, had been held unenforceable under state law contract doctrine.  In April 2011, however, the U.S. Supreme Court held in AT&T Mobility v. Concepcion that the Federal Arbitration Act preempts most state law challenges to class action waivers.

How broadly lower courts will interpret the AT&T decision remains to be seen.  For example, on February 1, 2012, the Second Circuit held in In re American Express Merchants’ Litigation that the AT&T decision did not preclude invalidation of an arbitration waiver where the practical effect of enforcement would impede a plaintiff’s ability to vindicate his or her federal statutory rights.

Nonetheless, in the wake of AT&T, many companies that provide online products or services to consumers are exploring whether to include an arbitration clause and class action waiver in their online Terms of Service.  For those companies that decide to adopt an arbitration provision, whether with or without a class action waiver, it is important to ensure that such arbitration provision will not be invalidated on the ground that no contract was formed with the consumer.

Courts have enforced the arbitration provision in an online Terms of Service agreement where the consumer clearly assents to – or “click-accepts” – the terms and conditions of such agreement, e.g., by checking a box stating “I agree” to such terms and conditions.  For example, in Blau v. AT&T Mobility, decided in December 2011, the plaintiff consumers, who were arguing that AT&T Mobility’s network was not sufficiently robust to provide the promised level of service, had specifically assented to AT&T Mobility’s Terms of Service, which included an arbitration clause.  One of the plaintiffs was bound by an e-signature collected by AT&T Mobility at a retail store.  He asserted that he was not bound because another user of his account had provided the signature.  The court rejected this argument because the user who signed was an authorized user of the plaintiff’s account.  A second co-plaintiff had accepted the Terms of Service by pressing a button on his mobile phone’s keypad; the court held that this acceptance was valid even though the co-plaintiff could not recall whether he had seen the AT&T Mobility Terms of Service.

The enforceability of an arbitration provision becomes more problematic where there is evidence that the consumer did not affirmatively assent to the agreement containing such provision.  In Kwan v. Clearwire Corp., decided in January 2012, the Western District of Washington denied the defendant’s motion to compel arbitration in a putative class action against Clearwire, an Internet service provider, under a variety of state and federal consumer protection statutes in connection with allegedly poorly performing modems.  Clearwire sought to compel arbitration based on an arbitration provision in its online Terms of Service.  Two named plaintiffs, Brown and Reasonover, argued that they could not be bound by the arbitration provision because they had never agreed to the Terms of Service.  The court held that an evidentiary hearing would be required to determine whether an arbitration agreement had been formed with respect to Brown after she introduced evidence that a Clearwire technician who installed her modem, and not Brown, had click-accepted the Clearwire Terms of Service.  Likewise, an evidentiary hearing was required as to Reasonover because Clearwire could not produce a record of a click-acceptance for Reasonover, who testified that she had “abandoned” the Clearwire website without click-accepting the Terms of Service.

What lessons can be drawn from the Blau and Kwan decisions?  First, for an arbitration provision contained in an online Terms of Service agreement to be enforceable against a consumer, there should be clear consent by the consumer to be bound by the agreement.  If the arbitration provision is contained in a passive “browsewrap” Terms of Service, requiring no affirmative consent from the consumer, this may be insufficient – absent other factors – to bind the consumer with respect to arbitration.  In addition, an online Terms of Service containing an arbitration provision should be presented to customers in a reasonably conspicuous manner before the consumer click-accepts the Terms of Service; the agreement should not be “submerged” within a series of links, placed on a part of the screen not visible before the consumer reaches the “I accept” button or buried in small print at the footer of a long email message.

Second, robust records documenting individual consumers’ “click-acceptances” of an online Terms of Service agreement incorporating an arbitration provision will substantially improve the likelihood that such agreement (and the incorporated arbitration provision) will be enforced.  A click-accept record that is linked to the individual who actually click-accepted the agreement is best.  Moreover, the Terms of Service agreement should be drafted to make clear that it applies not only to the individual who originally click-accepted such agreement, but also to other users to whom the individual provides access to his or her account.

The Superior Court of New Jersey recently revisited the enforceability of online contracts and the importance of how terms and conditions are displayed on websites, in Hoffman v. Supplements Togo Management LLC, et al. In so doing, the court addressed a line of cases reaching back to the Second Circuit’s 2002 landmark decision in Specht v. Netscape, where Circuit Judge (now Justice) Sotomayor wrote that, unless a reasonably prudent Internet user would have learned of and unambiguously assented to terms governing an online commercial transaction, an online contract cannot be formed.  In Hoffman, the court seized the opportunity to clarify how the law’s view of a “reasonably prudent Internet user” has evolved over the intervening nine years in light of the rapid growth in Internet use and online transactions.  As it turns out, the answer is . . . not by much.

The plaintiff in Hoffman, an attorney with an alleged history of suing online retailers for deceptive practices, purchased a dietary supplement called “Erection MD” through a website operated by defendant Supplements Togo Management LLC (“Togo”).  The product in question was advertised on Togo’s site with a variety of claims, such as, “Enhances Sex Drive,” “Maximum Performance,” “Instantly Boost Testosterone Levels,” and “Ultimate Stamina.” Four days after receiving his shipment, the plaintiff filed a lawsuit in the Superior Court of New Jersey alleging violations of New Jersey’s Consumer Fraud Act (“CFA”) and claiming that Togo made false and exaggerated representations about the product that allegedly lacked scientific and objective support.  (New Jersey’s CFA essentially requires advertisers to substantiate with written proof any claims made concerning “the safety, performance, availability, efficiency, quality or price of the advertised merchandise,” and to keep such written proof on file for at least 90 days after the effective date of the advertisement.) In lieu of filing an answer to the complaint, Togo moved to dismiss Hoffman’s suit, arguing that Hoffman failed to state a claim under the CFA and was barred from suing Togo in New Jersey in light of the forum selection clause contained in Togo’s “website disclaimer,” which only permitted actions to be brought in Nevada.  The lower court, in addressing whether the clause was enforceable, dismissed Hoffman’s suit on the grounds of improper forum.

On appeal, the Hoffman court focused on the same key principles of notice and assent discussed in Specht, and in particular, on whether “a reasonably prudent [person] in these circumstances would have known of the existence of [the] license terms.” In this case, the disclaimer containing the forum selection clause was displayed “below the fold” (that is, on a “submerged” portion of the website to which a visitor needed to scroll down in order to see).  Hoffman stated that when he visited Togo’s website, Erection MD was the first product displayed, listed among other Togo products and supplements and appearing next to a box that read “ADD TO SHOPPING CART,” and that when he clicked to add the product to his cart, he was taken directly to the site’s checkout page.  Hoffman argued that because subsequent pages—including the one on which he consummated his purchase—did not contain the same disclaimer, he was never put on notice of those additional terms and, therefore, that Togo’s forum selection clause was unenforceable.  Applying New Jersey precedent, the court agreed with Hoffman and overturned the lower court’s dismissal.  The forum selection clause was ruled “presumptively unenforceable,” on the grounds that it was “proffered unfairly, or with a design to conceal or de-emphasize its provisions.” Persuaded by Hoffman’s argument, the judge emphasized that because the forum selection clause was “submerged” on the web page that listed Togo’s products, it was “unreasonably masked from the view of the prospective purchasers because of its circuitous mode of presentation,” which prevented Hoffman (or any customer) from being put on notice.

The analysis in Hoffman mirrors Specht where Justice Sotomayor noted that the fact that an unexplored portion of a web page could contain additional terms and conditions, does not mean that a reasonably prudent Internet user should assume the existence of—or be compelled to look for—those terms.  Rather, it should be the website operator’s responsibility to put Internet users on notice of applicable terms and to obtain their assent, in order to preserve the integrity and credibility of electronic “bargaining” and mutual assent necessary to establish a contract.  In applying the same logic, the court in Hoffman signaled that the view of what an Internet user (whether or not he or she is an attorney) should be responsible for today has not changed much since Specht, despite the fact that the majority of Internet  users have made purchases online.

Similar to previous clickwrap cases (including Specht), Judge Sabatino also made a point of noting that “if defendants establish on remand that Hoffman had actually read the forum selection clause before purchasing the product,” his ruling on the enforceability of the clause might have been different.  Additionally, on the issue of assent, the Hoffman court stopped short of ruling (as Hoffman had argued) that a website user must be made to expressly click an “I Agree” button or check-box in order to form a binding agreement; although the user’s “unambiguous manifestation of assent” is required, New Jersey’s courts, like others, remain hesitant to prescribe the means or technology that a website operator needs to use to obtain that assent.  (The Hoffman opinion did not address the fact that Togo’s website disclaimer was a browsewrap rather than a clickwrap agreement.) Hoffman is a reminder to website operators everywhere of the continuing importance of highlighting website terms and conditions, and making sure that visitors are on notice that their activities— including purchases—are governed by those terms.  As the line of clickwrap cases from Specht through Hoffman makes clear, this entails, at a minimum, notifying users of the existence of such terms on the site’s home page (for example, through a clearly marked link to such terms), in a manner that is conspicuous and easily viewed by site visitors.  Moreover, when goods and services are available for purchase, it is recommended that website owners require customers to affirmatively acknowledge their acceptance of applicable terms before a purchase is completed.

 

A pair of recent decisions in federal court in Arkansas confirms that nothing about the virtual world changes a core principle of contract formation—that there can be no valid contract without objective manifestation of assent.  The decisions both deal with the efforts of one repeat pro se plaintiff, David Stebbins, to impose upon large institutions binding agreements to arbitrate via email.  These two decisions signal that courts will not relax traditional rules of contract formation merely because of the informality and relative ease of online communication.

The first decision, Stebbins v. Wal-Mart Stores Arkansas, LLC, No. 10-cv-3086, 2011 WL 1519390 (W.D. Ark. Apr. 14, 2011), relates to Stebbins’ interactions with Wal-Mart.  After applying unsuccessfully for a number of jobs at a local store, Stebbins sent an email to the company’s customer service department purporting to extend to Wal-Mart a formal offer to arbitrate any dispute between him and the company through an online arbitration service.  In the email, Stebbins explained that contact by anyone from Wal-Mart, in any form at all, would constitute agreement to be bound by the terms of the email, including submitting to arbitration.  The company responded with generic emails directing Stebbins to another department.  Meanwhile Stebbins, believing that Wal-Mart had accepted his email offer by allowing him to pay by check for a gallon of milk, registered with the online arbitration service, which emailed Wal-Mart that Stebbins intended to arbitrate an employment dispute with the company.  When Wal-Mart did not accept the invitation to arbitrate within 24 hours (a condition imposed by Stebbins under a “forfeit victory” clause in the purported contract), Stebbins claimed that he was entitled to a default arbitration award of over $600 billion, regardless of the merits of the dispute.

In another dispute before the Arkansas federal court, Stebbins v. University of Arkansas, No. 10-cv-5125 (W.D. Ark. May 19, 2011), Stebbins sought a similar agreement with the University of Arkansas relating to his unsuccessful attempts to re-enroll at the university following a suspension in 2007.  Stebbins already had a discrimination suit pending against the university for allegedly failing to accommodate his mental health disability.  While motions to dismiss were being considered, Stebbins emailed the General Counsel’s office a link to a YouTube video containing an offer to arbitrate all legal disputes and specifying that he would deem the offer accepted if the university communicated with Stebbins in any way, allowed him to communicate with university officials, or permitted him on campus.  Stebbins claimed that counsel for the university accepted his offer by fielding a follow-up telephone call and that, by failing to accept the invitation to arbitrate within 24 hours, the university lost the dispute under a “forfeit victory” clause.  Stebbins sought over $50 million and re-enrollment in the university.

Acting pro se, Stebbins moved to confirm both arbitration “awards” in separate actions in Arkansas federal court, a venue in which he had similar actions pending against his landlord and an online arbitration service.  In both cases, the court shut Stebbins down.  In the Wal-Mart case, the court explained that Stebbins could not rely on the concept of unilateral contract—in which a party accepts an offer to contract by performance instead of by express agreement—to prove the existence of a contract.  Stebbins’ emails were merely “self-serving documents that did not form the basis for any conduct or performance on Wal-Mart’s part,” and, indeed, “Wal-Mart performed no act.”

Similarly, in the University of Arkansas case, the court declined to accept Stebbins’ “novel proposition that one party can force a contract on another by sending an offer to contract, and stating therein that conduct entirely unrelated to a showing of agreement to be bound will constitute acceptance.” Distinguishing authority about the enforceability of clickwrap and browsewrap agreements, the court found that Stebbins had failed to demonstrate that the university showed any objective manifestation of assent to the formation of a contract.  The court explained that, if acceptance could be manifested in the ways Stebbins suggested, a contract might be formed if a university employee greeted Stebbins in a grocery store.  But “[t]his, of course, is not how contracts are formed, even on the Internet.”

This pair of cases posed relatively straightforward questions for the courts.  The attempts at contract formation were so one-sided, and the terms of the purported awards so outlandish, that the courts seemed to have little trouble dismissing the claims.  But the cases reinforce a basic notion that might provide comfort to institutions in closer cases—objective manifestation of assent is required no matter what method of communication is used to form a contract.