Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

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Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.In 2023, Lawrence seconded at Amazon Lab126, where he led the negotiation of high-profile licensing deals for a variety of Amazon device teams. The secondment was an immersive opportunity to gain additional insights and experience from the perspective of in-house counsel. Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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In <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/21/19-55204.pdf" target="_blank" rel="noopener noreferrer">Stover v. Experian Holdings</a>, the Ninth Circuit decided an issue of first impression for the circuit, holding that a party’s single visit to a website four years after her original visit—when she agreed to an online contract containing a change-of-terms provision—is not enough to bind her to an arbitration provision that she wasn’t aware of and that appeared in a later version of the contract.The panel held “a mere website visit after the end of a business relationship” is not enough “to bind parties to changed terms in a contract pursuant to a change-of-terms provision in the original contract.”In something of a departure from the typical case involving modification of an online contract, the plaintiff in the case, Rachel Stover, asserted that the updated arbitration provision did apply, while the defendant website operator, Experian, argued that the parties remained subject to the original terms.Ms. Stover is a consumer who bought a credit score service from Experian’s website in 2014. At that time, she agreed via a click acceptance to the website’s then-current terms of service, which stated that claims arising out of the transaction were subject to arbitration and contained a class action waiver.Stover cancelled the agreement a month later.Four years after that, in 2018, Stover visited Experian’s website just one time. At that point the website’s terms and conditions had been updated to exclude from the arbitration provision cases “arising out of or relating to the Fair Credit Reporting Act (FCRA) or other state or federal laws relating to the information contained in your consumer disclosure or report, including but not limited to claims for alleged inaccuracies in your credit report or the information in your credit file.”The next day Stover brought a putative class action against Experian alleging—among other things—that the company violated the FCRA. Experian moved to compel arbitration of Stover’s claims.The Central District of California granted Experian’s motion to compel arbitration, but it did so based on the 2018 arbitration provision that contained the carve-out for FCRA claims rather than on the original 2014 provision that did not include the carve-out. The district court held that the 2018 terms applied because “the plain language of the 2014 terms . . . assumed assent” to the updated terms based on Stover’s subsequent use of Experian’s website, but that her claims were not within the FCRA carve-out in the updated arbitration provision because the claims did not arise out of “information contained in [her] consumer disclosure or report.”The district court also rejected Stover’s argument that the arbitration provision was unenforceable under <a href="https://casetext.com/case/mcgill-v-citibank-na-6" target="_blank" rel="noopener noreferrer">McGill v. Citibank</a>, which held that a contract that waives a person’s right to seek public injunctive relief in court is invalid under California law. According to the court, McGill did not apply because Stover was not seeking public injunctive relief.On appeal, Experian argued that the version of the terms of use that appeared on Experian’s website in 2018 did not apply because Stover “had no opportunity to review the new terms before visiting the website and becoming bound by them.”Stover, on the other hand, argued that the district court was correct in applying the website’s 2018 terms, but mistaken when it failed to enforce the McGill rule because Stover was, in fact, seeking injunctive relief.The Ninth Circuit panel held that the 2014 arbitration provision, which did not include the FCRA carve out, applied. In order to bind parties to new terms pursuant to a change-of-terms provision consistent with basic principles of contract law, the panel held, both parties must have notice that the terms have changed and have had an opportunity to review the changes. Stover did not have such notice or opportunity to review the 2018 terms, so the updated terms did not apply to her.The panel then went on to hold that the 2014 arbitration provision was not unenforceable under McGill, because “the arbitration agreement does not flatly prohibit a plaintiff seeking public injunctive relief in court” and that Stover did not allege the requisite “Article III standing to bring such a claim.”Accordingly, the Ninth Circuit panel affirmed the district court’s holding that Stover was required to arbitrate her claims against Experian.

Role Reversal: Ninth Circuit Rejects Consumer’s Attempt to Enforce Updated Arbitration Provision in Website Terms of Use