Long v. Provide Commerce, Inc.
200 Cal. Rptr. 3d 117
Cal. Ct. App.2016Background
- Provide Commerce operates ProFlowers.com; Long purchased a floral arrangement there that allegedly arrived as a DIY kit rather than the advertised assembled product.
- Long sued on behalf of himself and a putative California class alleging consumer protection and CLRA/UCL claims.
- Provide moved to compel arbitration based on a browsewrap “Terms of Use” (TOU) hyperlink visible on website pages and in an order-confirmation email; the TOU contained an arbitration and forum-selection clause.
- The TOU hyperlinks appeared in light green type on a lime-green background at the bottom of pages and below the checkout box; the confirmation email displayed a small grey “Terms” link beneath many sections.
- Long testified he did not see or click the TOU before ordering. The trial court denied the petition to compel arbitration, finding the links were too inconspicuous to give inquiry notice. Provide appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Long was bound by ProFlowers’ browsewrap TOU (including arbitration clause) | Long lacked actual notice and did not unambiguously assent by ordering | The visible "TERMS OF USE/Terms" hyperlinks in checkout and confirmation email gave constructive/inquiry notice; continuing to order manifested assent | Denied — links were not sufficiently conspicuous to give inquiry notice; no unambiguous assent, so arbitration clause unenforceable |
| Whether proximity of hyperlink to checkout controls enforceability of browsewrap | Absent a textual notice or affirmative action, proximity alone does not create constructive notice | Proximity and visibility in checkout flow suffice here (no need for additional notice) | Rejected — proximity alone is insufficient; courts require more (textual notice/affirmative step) |
| Whether the confirmation email cured lack of notice | Email link still buried and inconspicuous (small grey "Terms") and thus did not impart notice | Email hyperlink provided additional notice after the fact and supports enforcement | Rejected — email link was submerged and not conspicuous enough to create inquiry notice |
| Whether forum-selection clause in TOU required transfer to San Diego | Long never assented to TOU, so he cannot be bound by forum clause | Forum-selection clauses are presumptively valid; thus Plaintiff must show why it should not be enforced | Denied — because Long did not assent to the TOU, he was not bound by the forum-selection clause |
Key Cases Cited
- Specht v. Netscape Communs. Corp., 306 F.3d 17 (2d Cir. 2002) (placing terms on a "submerged" portion of a page does not give constructive notice)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (conspicuous hyperlink alone, without additional notice or affirmative assent, is insufficient to show constructive notice for browsewrap)
- Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal.App.3d 987 (Cal. Ct. App. 1972) (offeree not bound by inconspicuous contractual provisions of which he was unaware)
- Freeman v. State Farm Mut. Auto. Ins. Co., 14 Cal.3d 473 (Cal. 1975) (policy favors arbitration but does not compel arbitration absent mutual assent)
- HM DG, Inc. v. Amini, 219 Cal.App.4th 1100 (Cal. Ct. App. 2013) (objective manifestation of assent governs contract formation)
- Cruise v. Kroger Co., 233 Cal.App.4th 390 (Cal. Ct. App. 2015) (threshold question in compel-to-arbitrate motions is whether an agreement to arbitrate exists)