Schnabel v. Trilegiant Corp. & Affinion, Inc., 2012 U.S. App. LEXIS 18875

Defendants seek to compel arbitration under an arbitration provision allegedly part of the Great Fun contract.
Plaintiffs Edward and Brian Schnabel allege they were not aware of arbitration terms when enrolling.
Arbitration clause was purportedly delivered via email after enrollment and also via a hyperlink on the enrollment page.
District court denied arbitration, ruling no mutual assent to arbitration terms.
Court analyzes whether assent occurred via email notice, hyperlink, or continued use of the service; court remands.
The court concludes no genuine material fact supports mutual assent to arbitrate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the parties mutually assent to arbitration?	Schnabels: no notice of arbitration terms.	Trilegiant: assent occurred via enrollment and post-enrollment terms.	No mutual assent; arbitration not formed.
Was the email notice sufficient to bind the plaintiffs?	Email failed to provide notice of arbitration terms.	Email constituted notice and formed assent.	Email did not bind due to insufficient notice.
Was the hyperlink notice forfeited for appeal?		Hyperlink notice preserved but not raised in district court.	Hyperlink argument forfeited on appeal.

Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) (standard for terms delivered post-formation; notice and assent requirements)
Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (notice and consent when terms delivered after relationship; course of dealing)
Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal. App. 3d 987 (Cal. App. 1972) (duty to read and notice standards in contract formation)
Campbell v. Gen. Dynamics Gov't Sys., 407 F.3d 546 (1st Cir. 2005) (email terms; notice and assent considerations)
Schnabel v. Trilegiant Corp., 2011 WL 797505 (D. Conn. 2011) (factual context; appellate discussion of contract formation)