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.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.

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In 2012, the National Labor Relations Board (NLRB or the “Board”) found a “courtesy” policy unlawful. Since then, the NLRB has continued to create more and more tension between the National Labor Relations Act (NLRA or the “Act”) and employers’ legitimate interests in maintaining and enforcing workplace guidelines governing courtesy in a nondiscriminatory fashion.This article focuses on the maintenance and enforcement of courtesy and civility rules. In these cases, the Board has taken extreme positions that increasingly ignore competing interests and obligations of employers. Among the obligations that can conflict with Section 7 in this context, employers must protect their employees from harassment, including on the basis of sex and race, by disciplining employees making harassing comments and engaging in harassing behavior and by maintaining civil workplaces that are not conducive to harassment. Employers also have a legitimate interest in maintaining a civil workplace simply to promote employee productivity and job satisfaction, as well as ensuring appropriate levels of customer service.The Framework: Regulating Workplace Rules Under the NLRA Employees have the right to engage in concerted activity under Section 7 of the NLRA. Concerted activity is activity undertaken for the employees’ mutual aid and protection, including, for example, discussing the terms and conditions of employment, such as wages, policies, and workplace treatment. Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”Under the general framework of the Act, the National Labor Relations Board regulates employer maintenance and enforcement of generally applicable workplace rules in several ways.First, an employer commits an unfair labor practice, under Section 8(a)(1), if it maintains a rule that would reasonably tend to chill employees in the exercise of their Section 7 rights. If it expressly restricts Section 7 activity, the rule is unlawful. Further, if it does not expressly restrict Section 7 activity, the rule is still unlawful under Lutheran Heritage Village if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” In reading the rule, the Board should “refrain from reading particular phrases in isolation.” Similarly, the Board should not seek out “arguable ambiguity . . . through parsing the language of the rule, viewing [a] phrase . . . in isolation, and attributing to the [employer] an intent to interfere with employee rights.” Lafayette Park Hotel.Second, employers may not discipline employees for engaging in protected activity. In the event that “the very conduct for which employees are disciplined is itself protected concerted activity,” then the discipline violates Section 8(a)(1) regardless of the employer’s motive or a showing of animus. Burnup & Sims, Inc. Similarly, if an employee violates a workplace rule and is disciplined, the discipline is unlawful if the employee “violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.” Continental Group, Inc.Workplace Conduct: Courtesy and ProfessionalismThe cases that likely demonstrate the biggest gap between the single-minded ideals espoused by the Board and the practicalities of managing a workforce are the Board’s decisions in the areas of civility and professionalism. In these cases, the Board would hamstring employers’ ability to govern basic workplace conduct, like requiring courtesy toward other employees or customers, or prohibiting or punishing profanity, threats, and abusive language. The cases create friction between the Act and employers’ need to maintain civility in the workplace—which in turn makes preventing harassment and ensuring employee satisfaction and productivity more difficult.Drafting Courtesy RulesThe Board has invalidated a number of rules that are unquestionably implemented for the purpose of ensuring a well-managed, strife-free workplace. Importantly, it is not relevant in these cases whether the rule at issue was implemented for an improper purpose or even whether the rule has been applied to activity that is actually protected by the Act; the only question is whether an employee would read the rule as prohibiting protected conduct. Unfortunately, the Board has concluded that the aspirational language of courtesy rules is often vague and over broad—frequently noting the lack of definitions of vague terms—and therefore would be read by employees to prohibit protected conduct, such as being critical of their pay or other conditions of work, co-workers, or their employer.In the first of a string of cases involving courtesy, the Board invalidated a “Courtesy” policy in Karl Knauz Motors, 358 NLRB No. 164 (2012) (likely to be treated as persuasive authority after Noel Canning). Although precedent dictates that the Board read the rule as a whole, the Board here tortuously parsed this rule to find that it violated the Act.The full policy at issue provided as follows:Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.The majority concluded that the Courtesy rule was unlawful because, notwithstanding the title or first two sentences of the rule, “employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity.”For similar reasons, the Board has invalidated rules that prohibit employees from being discourteous, even to guests. In First Transit, Inc., the Board invalidated a bus company’s rule that prohibits “[d]iscourteous or inappropriate attitude or behavior to passengers, other employees, or members of the public. Disorderly conduct during working hours.” The Board focused on the phrase relating to employees, and struck down the entire rule, finding it similar to a rule found unlawful in a previous Board decision prohibiting the “inability or unwillingness to work harmoniously with other employees.”In another case brought by a former Hooters waitress, Hoot Wing, LLC & Ontario Wings, LLC, an administrative law judge (ALJ) of the NLRB invalidated two policies that including obligations to be respectful. Specifically, two rules prohibited the following disrespectful conduct:Disrespect to our guests including discussing tips, profanity or negative comments or actions.Insubordination to a manager or lack of respect and cooperation with fellow employees or guestsThe ALJ concluded that both rules were vague and over broad. The portion of the rule prohibiting the discussion of tips violated the employees’ rights to discuss wages with non-employees. The remainder of the rule (“Disrespect to our guests including . . . profanity or negative comments or actions”) was “over broad and unqualified” in part because no examples of the prohibited conduct were included. The rule prohibiting insubordination was likewise over broad as it did not define “insubordination,” “lack of respect,” or “cooperation.”Similarly, in Laurus Technical Institute, the Board also recently invalidated several rules that prohibited gossip and negativity. The first rule prohibited “gossip,” stated that gossip “is an activity that can drain, corrupt, distract and down-shift the company’s productivity, moral, and overall satisfaction,” and defined gossip as follows:(1) Talking about a person’s personal life when they are not present(2) Talking about a person’s professional life without his/her supervisor present(3) Negative, or untrue, or disparaging comments or criticisms of another person or persons(4) Creating, sharing, or repeating information that can injure a person’s credibility or reputation(5) Creating, sharing, or repeating a rumor about another person(6) Creating, sharing or repeating a rumor that is overheard or hearsayThe second company’s rule stated “We will not engage in or listen to negativity or gossip” and also had a rule that stated “We will represent Hills & Dales [General Hospital] in the community in a positive and professional manner in every opportunity.”In both cases, the Board concluded that the quoted rules were over broad and could be interpreted by reasonable employees as infringing on their right to discuss the terms and conditions of employment. In the former case, an employee was reinstated with back pay after she was terminated for, among other things, violating the rule.In slightly better news, this May, in First Transit, Inc., the Board has finally found a floor: Employers may, at least, prohibit employees from using “Profane or abusive language where the language is uncivil, insulting, contemptuous, vicious, or malicious.”Enforcing Courtesy RulesIt is not just the maintenance of courtesy rules that can get employers into trouble. If a rule is over broad and an employee is terminated for violating that rule, the Board may order reinstatement of the employee with back pay. And a few cases demonstrate that the Board is equally aggressive in cases challenging enforcement of workplace rules as in maintenance cases. These cases clearly illustrate the tension between the NLRA and other workplace laws and interests that require a certain level of decorum be maintained in the workplace.Even though employers can at least theoretically maintain rules prohibiting profane speech (see above), they may not be able to terminate employees who violate the rule. Repeatedly the Board has sided with employees who use profane speech or improper gestures, when it concludes the employee was engaging in protected conduct at the time. (Remember: This Board takes a very broad view of what is protected.) Two recent decisions illustrate the issue:First, on remand from the Second Circuit, the Board found that Starbucks unlawfully terminated an employee after he engaged in a heated dispute with his manager in which he used many expletives—in front of customers. Originally, the Board approved of the employee’s conduct, and Starbucks appealed. The Second Circuit remanded, noting “We think the analysis of [the Board] improperly disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.” On remand, the Board did not take this admonishment to heart, and again sided with the employee.Second, the Board likewise condoned an employee’s conduct in Plaza Auto Center, Inc. when he cursed at his supervisor, calling him a “f***ing mother f***er” and a “f***ing crook,” among other profanities. He also told the supervisor that if he was terminated, the supervisor “would regret it.” As a result of this meeting, the employee was terminated, and on review the Board concluded that the employer violated the Act in so doing. Although the supervisor stated he took the statement that he “would regret it” as a physical threat, the Board did not credit that testimony, since the employee did not display any physical signs of a threat. Ultimately, the Board concluded that the statements to the supervisor were not so egregious as to lose the protection of the Act. The dissent objected that the conduct was not protected, and noted “It is entirely reasonable, and to a great extent legally necessary, for many employers to insist that employees engage each other with civility rather than personally directed ‘f-bombs,’ even on matters where opinions differ sharply and emotions flare.”In another surprising case, the Board condoned cursing and language that had female employees submitting written complaints. In Fresenius USA Manufacturing, Inc., 358 NLRB No. 138 (2012), an employee, Kevin “Dale” Grosso, anonymously wrote “vulgar, offensive, and, in isolation, possibly threatening statements on several union newsletters left in an employee break room” with the intent of encouraging union support in an upcoming decertification election. Specifically, Grosso wrote the following three notes on September 10, 2009:“Dear Pussies, Please Read!”“Hey cat food lovers, how’s your income doing?”“Warehouse workers, RIP.”Female employees complained about the statements. There were 12 employees in the warehouse unit, five of whom were female. Upon learning of the statements, several female warehouse employees complained on multiple occasions about the notes, claiming they were vulgar, offensive, and threatening. In response to the complaints, the company promised to investigate the statements and, in response to their safety concerns, the manager reminded female employees that the company maintained security cameras and he himself stayed late to ensure that they left safely. Ultimately, the female employees memorialized their complaints in written statements.The company investigated under its anti-harassment policy, requiring management to investigate and respond to complaints of harassment and, if harassment has occurred, to administer corrective action. After ultimately concluding that he wrote the statements, Fresenius terminated Grosso’s employment.The Board concluded that in writing those statements, Grosso was engaging in protected activity as he was seeking to encourage other employees to vote for the union. Accordingly, the termination violated the Act because he was terminated for engaging in protected concerted activity, notwithstanding the fact that he also violated the company’s nondiscriminatory policy and that female employees took offense and reported the conduct in written complaints.One Board member dissented vigorously, expressing the view—likely shared by many employers—that the majority’s approach improperly insulates employees from discipline for misconduct:I specifically dispute their implication that greater latitude must be accorded to misconduct occurring in the course of organizational activity than for other Section 7 activity, that profanity in the course of labor relations is the presumptive and permissible norm in any workplace, that remarks by one employee to another which would be unprotected on the shop floor should be protected if made in the breakroom, that comments which coworkers reasonably view as harassing and sexually insulting are not disruptive of productivity, and that threatening speech alone cannot warrant loss of statutory protection. Taken as a whole, these pronouncements confer on employees engaged in Section 7 activity a degree of insulation from discipline for misconduct that the Act neither requires nor warrants.Employer Next StepsIt is likely that the Courts of Appeal will be reviewing some of these cases and issues, so the above may not be the final word on courtesy under the NLRA. And while the decisions remain in place, some competing interests in the workplace, like preventing sexual harassment, may continue to trump the Board’s interpretation. Accordingly, it may not be possible to fully harmonize the NLRA, as interpreted in the above cases, with other workplace obligations and interests. Should employers feel inclined, there are some steps to take to bring policies in closer alignment with the NLRA, while not ignoring other workplace obligations. As an initial matter, employers should take some time to look over their policies to determine whether their workplace rules can be revised to minimize friction with the National Labor Relations Act, while still maintaining rules that are necessary for a courteous and lawful workplace. Importantly, the Board’s focus recently is on terms that it considers vague and ambiguous, so carefully crafted rules that define possibly ambiguous terms to give examples of prohibited conduct and to exclude protected conduct are more likely to pass muster. In addition, there is now some authority that “savings clauses”—that state that the rule is not intended to interfere with Section 7 rights—can help. These clauses should be drafted with a lay person in mind, meaning that a reference to the National Labor Relations Act will not be sufficient. Instead, the savings clause should describe the concerted activity that is implicated by the rule but that is not intended to be prohibited.Finally, before enforcing one of these rules, take a another look at the underlying conduct to determine whether it is likely to be considered protected under the Act, even if it clearly violates the workplace rule. Unfortunately, that may not end the matter as other laws, including discrimination and harassment laws, should be considered before taking action before applying the NLRA.

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The Death of Courtesy and Civility Under the National Labor Relations Act

The Death of Courtesy and Civility Under the National Labor Relations Act

In 2012, the National Labor Relations Board (NLRB or the “Board”) found a “courtesy” policy unlawful. Since then, the NLRB has continued to create more and more

The Federal Trade Commission (FTC) <a href="http://www.ftc.gov/news-events/press-releases/2014/09/operation-full-disclosure-targets-more-60-national-advertisers" target="_blank" rel="noopener">announced this week</a> that it sent warning letters to more than 60 national advertisers regarding the inadequacy of disclosures in their television and print ads. The letters are part of an initiative named “Operation Full Disclosure,” which the FTC implemented to review fine print disclosures and other disclosures that it believed were difficult to read or easy for consumers to overlook, yet included critical information that consumers would need to avoid being misled.What Does it Mean for a Disclosure to be “Clear and Conspicuous”Disclosures may be necessary to clarify a claim or to ensure that the full terms of an offer are adequately disclosed, in order to avoid a charge of deception by material omission. In FTC jurisprudence, disclosures must be “clear and conspicuous,” and while they may modify claims in the text of an ad itself, they may not contradict any such claims. The most recent pronouncement on how to make effective disclosures (this one was focused on online disclosures, but the general principles are the same) was issued in <a href="http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf" target="_blank" rel="noopener">March 2013</a>. The key is that if a disclosure is necessary to make an ad truthful and not misleading, it must be clear and conspicuous; otherwise, it is as though the disclosure was not made at all.Whether a disclosure is adequate to meet the “clear and conspicuous” test depends on a number of factors, the most important of which are:<ul><li>the placement of the disclosure in the advertisement and its proximity to the claim it is qualifying;</li><li>the prominence of the disclosure;</li><li>whether the disclosure is unavoidable;</li><li>the extent to which items in other parts of the advertisement might distract attention from the disclosure;</li><li>Whether the disclosure needs to be repeated several times in order to be effectively communicated, or because consumers may enter the site at different locations or travel through the site on paths that cause them to miss the disclosure;</li><li>whether disclosures in audio messages are presented in an adequate volume and cadence and visual disclosures appear for a sufficient duration; and</li><li>whether the language of the disclosure is understandable to the intended audience.</li></ul>Next Steps Law Enforcement Sweep?In light of the FTC’s recent warnings, advertisers would be well-advised to review their ads and disclosures anew to make sure they comply with the FTC’s standards for clear and conspicuous disclosures in both offline and online advertising. We expect the FTC may well follow this group of warning letters with a series of enforcement actions, as it did in 1996 <a href="http://www.ftc.gov/news-events/press-releases/1996/11/ftc-drives-end-blur-car-leasing-ads" target="_blank" rel="noopener">against a number of auto manufacturers for the mouse print in their leasing ads</a>. The FTC followed up with Mazda in 1999, alleging that it failed to abide by the FTC’s stipulated order on proper disclosures, settling for $5.25 million.What did the FTC Highlight in the Warning Letters?–Make sure you get these Right!Although the FTC has not disclosed which companies received the warning letters, it indicated that the 60-plus recipients include 20 of the largest advertisers in the country, a wide range of industries and types of products, and both English-and Spanish-language ads. FTC staff sought to identify a representative sample of advertisers that made inadequate disclosures and emphasized that advertisers who did not receive a letter should not assume that their ads are fine simply because they did not receive a warning letter.Similarly, the FTC’s focus on television and print ads does not mean that other forms of advertising get a pass; the FTC is equally concerned about disclosures that appear in other media, such as online and on mobile devices.The FTC identified several types of inadequate disclosures in the television and print ads it reviewed. Examples of the inadequate disclosures include the following:<ul><li>quoting the price of a product or service without disclosing conditions for obtaining the price;</li><li>failing to disclose an automatic billing feature;</li><li>claiming that a product capability of an accessory was included without disclosing the need to first buy or own an additional product or service;</li><li>claiming that a product was unique or superior in a product category without disclosing the advertiser’s narrow definition of the category;</li><li>making comparative claims without disclosing the basis of the advertiser’s comparisons;</li><li>promoting a “risk-free” or “worry-free” trial period without disclosing that consumers have to pay shipping costs; and</li><li>making absolute or broad statements without explaining relevant exceptions or limitations.</li></ul>ConclusionIn light of the FTC’s recent warnings, advertisers would be well-advised to review their ads and disclosures anew to make sure they comply with the FTC’s standards.

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FTC Warns Advertisers to Check the Fine Print in “Operation Full Disclosure”; Shot Across the Bow Could Signal Law Enforcement Actions to Come

FTC Warns Advertisers to Check the Fine Print in “Operation Full Disclosure”; Shot Across the Bow Could Signal Law Enforcement Actions to Come

The Federal Trade Commission (FTC) announced this week that it sent warning letters to more than 60 national advertisers regarding the inadequacy of disclosures

In <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/18/12-56628.pdf" target="_blank" rel="noopener">Kevin Khoa Nguyen v. Barnes & Noble Inc.</a>, 2014 U.S. App. LEXIS 15868 (9th Cir. 2014), decided on August 18, 2014, the Ninth Circuit rejected an attempt to bind a consumer to an arbitration clause found in an online terms of use agreement not affirmatively “click accepted” by the consumer but readily accessible through a hyperlink at the bottom left of each page on the subject website.The case arose from a “fire sale” by defendant Barnes & Noble of certain discontinued Hewlett Packard TouchPads. Plaintiff Nguyen had ordered two of the TouchPads, but received a notice from Barnes & Noble the following day that his order had been cancelled due to unexpectedly high demand. Nguyen sued Barnes & Noble in California Superior Court on behalf of himself and a putative class, arguing that he was forced to buy a more expensive tablet instead.Barnes & Noble, after removing the suit to federal court, moved to compel arbitration under the Federal Arbitration Act, arguing that, by using the Barnes & Noble website, Nguyen had agreed to an arbitration clause contained in Barnes & Noble’s Terms of Use. Nguyen responded that he could not be bound to the arbitration clause because he had no notice of and did not consent to the Terms of Use. Barnes & Noble countered that the placement of the Terms of Use hyperlink on its website had given Nguyen constructive notice of the arbitration clause.The district court agreed with Nguyen, Barnes & Noble appealed, and the Ninth Circuit affirmed.We have previously surveyed the law in this area <a href="http://www.sociallyawareblog.com/2012/11/01/thats-a-wrap-nguyen-v-barnes-noble/" target="_blank" rel="noopener">here</a> (regarding the Nguyen district court decision) and <a href="http://www.sociallyawareblog.com/2012/02/21/click-accept-arbitration-enforcing-arbitration-provisions-in-online-terms-of-service/" target="_blank" rel="noopener">here</a> (regarding other decisions involving online arbitration clauses). The Ninth Circuit’s opinion in Nguyen is generally consistent with the existing caselaw, which suggests that, absent evidence of affirmative consent, courts are reluctant to find that parties—especially consumers—are bound by arbitration clauses contained in online terms of use agreements.In Nguyen, it was established that Barnes & Noble made available a hyperlink to its Terms of Use at the bottom left corner of each page on its website. Further, on each page of the website’s online checkout process, Barnes & Noble presented, underlined and in green type, a hyperlink to its Terms of Use. However, it was apparently undisputed that Nguyen had neither clicked on the Terms of Use hyperlink nor actually read the Terms of Use.To determine whether a valid arbitration clause exists, <a href="https://supreme.justia.com/cases/federal/us/514/938/case.html" target="_blank" rel="noopener">courts apply ordinary state law principles of contract formation</a>. Interestingly, in Nguyen, the Ninth Circuit applied New York law as provided in the Barnes & Noble Terms of Use even though the question was whether such Terms of Use were a valid agreement in the first instance. The Ninth Circuit noted, however, that its analysis would be the same under California law as under New York law.Applying New York law, the Ninth Circuit examined the law of “clickwrap” and “browsewrap” agreements and commented that “[t]he defining feature of browsewrap agreements is that the user can continue to use the website or other services without visiting the page hosting the browsewrap agreement or even knowing that such a web page exists.” Thus, the Ninth Circuit observed, the determination of the validity of the browsewrap contract depends on whether the user has actual or constructive knowledge of the website’s terms and conditions.The Ninth Circuit noted that courts have consistently enforced browsewrap agreements where the user had actual notice of the agreement but pointed out that courts are more willing to enforce browsewrap agreements where the browsewrap agreement resembles a clickwrap agreement, i.e., where the user is required to affirmatively acknowledge the agreement in some way.The Ninth Circuit further stated that where, as in the case of Nguyen, no evidence exists that the user had any knowledge of a browsewrap agreement, the validity of such agreement turns on whether the disclosure of the agreement on the website is sufficient to put a reasonably prudent user on notice of the terms and conditions of such agreement. This inquiry turns on the design and content of the website. Where the link to the terms of use is hidden at the bottom of the page or tucked away in obscure corners of the website, notice is not sufficient.The Ninth Circuit’s analysis in Nguyen relies heavily on the Second Circuit’s decision in <a href="http://cyber.law.harvard.edu/stjohns/Specht_v_Netscape.pdf" target="_blank" rel="noopener">Specht v. Netscape Communications Corp.</a>, 306 F.3d 17 (2d Cir. 2002), in which the Second Circuit had rejected an arbitration clause in a terms of use agreement for inadequate notice. The Ninth Circuit acknowledged that Barnes & Noble’s placement of the link to its Terms of Use at the bottom left of every page and also close to the buttons a user must click to complete a transaction distinguished the case from Specht, in which the link at issue was on a submerged screen that could not be seen unless the user scrolled past the button that initiated the relevant transaction. However, the Ninth Circuit held that the proximity or conspicuousness of the hyperlink alone was not enough to give rise to constructive notice. Rather, the Ninth Circuit said, the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers.What then must a website owner do to provide the requisite notice? A clear manifestation of consent is the safest way to ensure enforceability—for example, by requiring the user to check an unchecked box before allowing the user to complete a transaction.The Ninth Circuit also suggests in Nguyen that a clear textual notice on the website that continued use will act as a manifestation of the user’s intent to be bound by the terms of use may also result in an effective agreement.It also noted in a footnote that the standard may be higher where agreements are being enforced against consumers than against business entities.In any event, Nguyen is a wake-up call for website operators for whom it is critical that an arbitration clause embedded in their website terms of use is enforceable; serious consideration needs to be given to how best to strengthen the enforceability of such clause in the wake of the Ninth Circuit’s decision.More generally, Nguyen is a reminder for all website operators that those ubiquitous browsewrap terms of use—found on nearly every website big and small across the entire span of the Internet—have serious limitations as a tool for legally binding site visitors and mitigating risks.

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To Click or Not to Click? Ninth Circuit Rejects Browsewrap Arbitration Clause

To Click or Not to Click? Ninth Circuit Rejects Browsewrap Arbitration Clause