Hancock v. American Telephone & Telegraph Co.
701 F.3d 1248
| 10th Cir. | 2012Background
- Plaintiffs purchased U-verse in Florida or Oklahoma and sued in the Western District of Oklahoma for RICO and state-law claims; the district court dismissed TV/Voice claims for improper venue under the Forum Selection Clause and Internet claims for arbitration.
- Two sets of U-verse terms govern TV/Voice (forum selection) and Internet (arbitration); AT&T Operations and affiliates own and install U-verse nationwide, including Oklahoma and Florida.
- Declaration evidence described the standard practice: installation technicians provide a Welcome Kit and an acceptance form for TV/Voice terms and an online Internet registration requiring assent to Internet terms.
- Plaintiffs Hancock and others challenged whether the standard-practice process provided adequate notice and opportunity to review/assent, while Cross allegedly did not have records showing acceptance.
- The district court admitted the declarations as Rule 406 evidence of a routine practice, denied evidentiary hearings, and dismissed/compelled arbitration; on appeal, the panel affirmatively upheld enforcement of both clauses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants’ clickwrap practice binds customers as a matter of law | Plaintiffs contend the process is byzantine and lacks informed assent | Defendants argue the clickwraps give reasonable notice and an opportunity to assent | Yes, the practice binds customers; terms are properly formed and enforceable |
| Whether Hancock and Cross raised genuine disputes to defeat enforcement | Hancock disputed acceptance; Cross lacked records of acceptance | Declarations show uniform, personal-knowledge-based practice applicable to all customers | No genuine disputes; district court did not err in denying evidentiary hearing |
| Whether the district court properly applied the Murphy framework for venue and arbitration | District court failed to draw all reasonable inferences in plaintiffs’ favor | Court used a summary-judgment-like framework consistent with Murphy for venue/arbitration | District court correctly applied the framework and dismissed/compelled arbitration |
Key Cases Cited
- Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) (notice/assent requirements for clickwrap terms)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (U.S. 1995) (gateway case on contract formation and choice of law/venue)
- K & V Scientific Co. v. Bayerische Motoren Werke Aktiengesellschaft, 314 F.3d 494 (10th Cir. 2002) (forum selection clause analysis in contract)
- Murphy v. Schneider National, Inc., 362 F.3d 1133 (9th Cir. 2004) (framework for factual disputes on 12(b)(3) venue/ forum clauses)
- Avedon Engineering, Inc. v. Seatex, 126 F.3d 1279 (10th Cir. 1997) (arb. clause/publication; de novo review of arbitration)