*1
ASSOCIATION Creating Controlling Rules
Amend Bar Association to Create
the Oklahoma Division.
a Law Student
No. SCBD-4997.
Supreme Court Oklahoma.
March 2005. CREATING LAW STUDENT
ORDER THE OF OKLAHOMA
DIVISION
BAR ASSOCIATION
Upon Application of the Oklahoma Bar Delegates,
Association House of the Rules
Creating Controlling the Oklahoma Bar hereby
Assоciation are amended as set forth A attached hereto. Exhibit
ALL JUSTICES CONCUR. A
Exhibit II, l.A.
Article Section currently
Law who are in a Students enrolled
law school accredited the American Bar may participate affiliate and
Association
the Oklahoma Bar Association with limited
rights privileges provided By-
laws of the Association.
Donna J. ROGERS Liners, Fab Seal Industrial
d/b/a
Inc., Plaintiffs/Appellees, CORPORATION,
DELL COMPUTER
Defendant/Appellant. 99,991.
No.
Supreme Court of Oklahoma.
June 2005.
Rehearing Denied Nov.
As Nov. Corrected *2 West, Cawthon, Terry Bradley David C.
J. Shawnee, OK, West, Firm, Law The West W. plaintiffs. for the Taft, Hermes, Okla- N. McAfee John OK, on the City, for the defendant homa for Reply Support of the Petition Writ Certiorari. Jackson, Kincaid, L. L. Gerald
James OK, City, Dunlevy, Oklahoma Crowe & Ap- of Civil before the Court the defendant of Certio- peals and on the Petition Writ rari.
TAYLOR, J. (1) in this case are: 1 The issues of the district jurisdiction of this Court court, in the dis- proper procedures application arbitra- trict court on an tion, and force of the existence an provision allegedly sent acknowledgment and with invoice and find this Court computer. We purchased appeal and the district jurisdiction over this jurisdiction of the issues below cоurt had proper Because the plaintiffs. framed not followed in the district procedures were made under the of section 817 of court, say appealable by right. whether the district we cannot OUAA Section appeals denying 817 allows from order court’s denial proper pur and whether the arbitration made arbitration was arbi- suant section 803 of the OUAA. provision attached With tration exceptions, against plaintiffs. applies limited the OUAA to a There- *3 is enforceable fore, written or a in a written we remand the case with instructions to contract to submit procedures opinion. set out in this controversies between the follow 802(A) to arbitration. application compel OUAA. Because Dell’s I. AND PROCEDURAL BACKGROUND alleged a written ISSUES it, against dispute arbitrate claims before ¶2 Palmer, doing Paul business as Fab purview this Court comes within the OUAA’s Liners, Rog- Seal Industrial Donna Act, as well as the Federal Arbitration (collectively plaintiffs) against ers filed suit (1994 (FAA), §§ Supp.2001) U.S.C. Computer Corporation, later Dell renamed part application discussed IV below. The (Dell) Dell, Inc., asking for certification as a mutually of the OUAA and FAA are not alleging action and violations of class exclusive. See Volt Board Trustees of Act, Oklahoma Consumer Protection 15 O.S. Univ., the Leland Jr. Stanford 751-763, negligence, §§ and breach of (1989). contract. Dell filed a motion to dismiss for ¶ 4 apply The OUAA does not to “collective jurisdiction lack of and failure to state a bargaining agreements or contracts with ref- or, alternatively, compel claim arbitration. except erence to insurance for those cоn- The district court denied Dell’s motion. Dell companies.” § tracts between insurance appealed denying of the order of the OUAA. The FAA except does not application compel invoking ap- application. these two contracts from its 817(A) pellate jurisdiction pursuant to section types Therefore these two Act, of the Oklahoma Uniform Arbitration come under FAA not but the OUAA. The (OUAA).1 O.S.2001, § 801-18 Court denial of an compel Appeals Civil affirmed the district court’s type under these of contracts would not be denial of the arbitra- appealable by right. to this Court See rule tion.2 1.60(f) of the OSCR. Here both the OUAA applicable. and the FAA are Because the II. JURISDICTION here, applicable OUAA is denying the order A. Oklahoma Arbitration Act Uniform Dell’s ap- arbitration is pealable by Thus, right under rule 1.60. this duty 3 It is thе of this Court to jurisdiction appeal. Court has inquire jurisdiction juris into its own and the City diction of the court below. Lawton v. B. Oklahoma Uniform Tax Act Procedures Ass’n, International Union Police 1, ¶10, OK jurisdiction, P.3d 376. Oklahoma 5 As to the district court’s 1.60(i), Supreme O.S.2001, Court Rule ch. the district court denied Dell’s motion to (OSCR), app. provides appeals jurisdiction. dismiss for lack of The crux of session, During its most petition orig- recent the Oklahoma stated that the amended altered the Legislature replaced the 2001 version of the petition only by adding inal er, defendants. Howev- Laws, (to OUAA.2005 Okla. Sess. ch. 364 be petition the amended is not included in the 1851-81). O.S.Supp.2002, §§ codified at 12 appellate petition record. The filed in the dis- only trict court names Dell as a defendant. The style appeal of documents filed in this petition petition in errоr and the for certiorari Catalog name Dell Sales Limited Partner- only by Nothing are filed Dell. in the record ship, serv, Marketing Partnership, Qualx- Dell Limited Catalog shows that Dell Sales Limited Partner- Banctec, LLC and Inc. as defendants and ship, Marketing Partnership, Qualx- Limited appellants. The district court docket sheets serv, Banctec, LLC and Inc. are petition show an amended was filed and name appeal. case below or to this only Dell as the defendant. The directly with Dell. place orders claims Customers plaintiffs’ was that Dell’s motion computers ships purchased from attempt generate a class transparent are a In addition to the and Tennessee. reality plaintiffs are Texas action suit contracts. computers, Dell markets service first be which must seeking a tax refund Tax Commission. the Oklahoma addressed alleges what it are the 9 Dell attached the district court should Dell submitted acknowledg- the Fab Rogers invoice and Seal petition because have dismissed to dismiss or to its motion their administra- failed to exhaust attached a document arbitration. Dell also tive remedies. pages internet taken from one of its of Sale.”3 entitled “Terms and Conditions of the Oklahoma 227 of title 68 6 Section accuracy Dell did not attest for a refund provides a mechanism Statutes alleged or to the fact that pro- these attachments erroneously paid. Section of taxes *4 plaintiffs. sent documents were appeals for denial of these means for vides the Further, nothing in the record about there is taxpayer as 202 defines refund. Section computers, plaintiffs ordered the If the how the pay any state tax. any person liable to internet, mail, by whether over the for a refund of the sales claims are plaintiffs’ Likewise, nothing in fact, there is phone. by mistake of error either tax collected law, processes and conversations record about the misinterpretation of computation or they plaintiffs when between Dell and to first seek relief plaintiffs would have plaintiffs or whether the pursu- placed their orders Tax Commission Oklahoma required consent to the “Terms Stallings were v. Okla- ant to these sections. See placing Comm’n, 99, when the orders. P.2d Conditions of Sale” 1994 OK 880 Tax homa ¶ purposes of discussion 10 assume We represen- ¶ only plaintiffs received the protested Dell’s charac- plaintiffs The 7 of Sale” docu- tative “Tеrms and Conditions em- their claims. terization of acknowledg- the invoice and ment either with position was Dell phasized that their ment, computer, or shipment of the with the from Oklahoma resi- “charges and collects provision included both. The arbitration falsely characterized as a sales monies dents of Sale” docu- the “Terms and Conditions optional service con- purchase tax on enforceable, ment, (ie., would if received and tracts, transportation charges and/or to submit their claims require charges) for the deliv- handling shipping binding affiliates to arbi- against Dell or its computer products.” ery computers and tration. to the issues based on confine our review We claims.
plaintiffs characterization Thus, taxes” were re- proof that the “sales LAW IV. APPLICABLE as Tax Commission mittеd to the Oklahoma ¶ applies to contracts affect- 11 The FAA plain- to the alleges would be defense § 1 commerce. 9 U.S.C. ing interstate plaintiffs have limited as the tiffs’ claims Dobson, Co. v. 513 Allied-Bruce Terminix them. 265, 269, 115 S.Ct. U.S. FAA, (1995). a writ- 2 of the Under section
III. FACTS
an issue to arbitra-
agreement to submit
ten
enforceable,
irrevocable,
“valid,
below,
tion is
discussed
our state-
8 For reasons
as exist at law or
upon
grounds
such
save
facts are those to which
ment of the
contract.”
equity for the revocation
court or in
in the district
parties admit either
falling within sec-
brought upon issues
company,
a Texas-based
Suits
appeal.
this
stayed until after “arbitration
marketing.
2 must be
through
tion
computers
direct
sells
allegedly
case were
in-
in this
shrinkwrap agreements
are in-
Sale” document
3. Unlike
acknowledgments
prod-
with the invoices
package
purchased
cluded
with the
cluded in the
package.
product
A click-
only
purchaser
after
as well as
uct and available
Assoc.,
beginning
agreement appears
wrap
at the
opening
package,
Inc.
Davidson
requires
user to
of software
Gateway,
F.Supp.2d
installation
Internet
continuing. Id.
(E.D.Mo.2004),
terms before
consent to the
"Terms and Conditions
Corp.
Chrysler-Plymouth,
in accordance with the terms of Motors
v. Soler
had
has been
(2000).
A
9 U.S.C.
105 S.Ct.
agreement.”
U.S.
OUAA,
(1985));
City
L.Ed.2d 444
stay
required
also
O.S.
Gannon Circuit
Cir.2001).
803(D).4
Stores, Inc.,
(8th
2001, §
262 F.3d
of an
preempt
FAA does not
12 The
governed
principles of state law. Wilkin-
unless the state law frustrates the
state law
son,
¶9,
20 at
933 P.2d at
OK
objectives
purposes and
em
Congressional
Because under the FAA this court cannot
Volt,
FAA.
489 U.S. at
bodied
validity of
examine the
the сontract as
FAA was enacted “to over
1248. The
S.Ct.
Paint,
whole,
Prima
agreement to arbitrate the Wilkin “shall heard in ... making be the manner Reynolds, hearing v. Dean son Witter 1997 OK and of motions in actions.” Proceed- ¶20, 9, (citing ings 933 P.2d on Mitsubishi motions are addressed in rule 4 of requires Act Texas Uniform Arbitration also to arbitrate is enforceable.” 2005 stayed. Laws, proceedings 7(C). that court be Tex.Rev.Civ. § Okla. Sess. ch. The new §§ Prac. & Rem.Code Ann. 171.021 & 171.025 provisions agreements apply OUAA to arbi- (West 2005). 1, 2006, (2) January agree- trate made on or after 1, 2006, January ments to arbitrate before if on newly 5. Under the enacted agree, starting the record tire so OUAA, "[a]n arbitrator shall decide whether a January to arbitrate precedent arbitrability condition been ful- whenever made. Id. at 4. containing filled and whether a contract a valid Blevins, Oklahoma, 12 novo. 2005 OK viewed de Hill Rules for District Courts (ORDC). 332, 334; Cummings v. Fedex Under O.S.Supp.2002, app. ch. Package ORDC, seeking System, F.3d party Ground 4 of rule Cir.2005). (10th present a must statement compel arbitration showing an enforceable of the law facts OF VIL EXISTENCE issues
agreement to
arbitrate
4(c).
AN ARBITRATION
appli-
petition.
at rule
Id.
AGREEMENT
sup-
be
must
cation to
affidavits,
stipulations,
ported by
pleadings,
step
determining
initial
Under
evidentiary materials which are
and other
have a
whether the
written
knowledge of
person having
a
verified
arbitrate,
apply
should
state
courts
accuracy.
Alternatively, counsel
Id.
their
Options Chicago, Inc.
contract law. First
a
of what
may submit verified statement
943-44,
Kaplan,
U.S.
proof
present
proof
then
will show and
(1995).
stage,
L.Ed.2d
At this
party
hearing.
moving
must also
Id. The
may
need
a
of law
court
to conduct
choice
including a list of
a concise brief
submit
However,
and Tex-
analysis.
both Oklahoma
See id. With-
authorities on which it relies.
adopted
as have
the Uniform Commercial
served,
days
application is
in fifteen
after the
(U.C.C.),
O.S.2001,§§
12A
to 11-
Code
opposing
application to
party
(Oklahoma U.C.C.); Tex.
Bus. & Com.
must
or list of authori-
file a brief
(West
Ann., §§
1.101-11.108
Code
and,
verify
sup-
the facts
appropriate,
ties
(Texas U.C.C.),6 which, as
Supp.2004-05)
position.
porting its
Id.
below,
Although
here.
applicable
shown
applies,
asserts Texas law
neither
may request
hearing.
party
Either
maintained that there
nor the
grant
hearing will
in the
be
The decision
applicable
law of
difference
court.
id. at
district
See
discretion
any perceived
Thus
Texas and Oklahoma.
4(d). However, if the
of an
rule
*6
issue
contrived.
choice-of-law
controverted,
then
agreement to arbitrate
procedure
for the district court
better
¶
in
applies to “transactions
20 The U.C.C.
hearing
evidentiary
en-
to conduct an
before
§
goods.”
2-102. “Goods” are “all
U.C.C.
decision,
its
making
tering an order.
(including
things
specially manufactured
FAA’s
court
mindful of the
district
should be
at
goods) which are moveable
the time
arbitration;
policies favoring
and the OUAA’s
contract....”
U.C.C.
identification
of the
ambiguity falls on the side
existence
contracts in this case
Because the
2-105.
H.
Moses
Cone
arbitrate.
goods,
primarily with the sale
deal
Mercury
Corp.,
Hosp.
Constr.
Memorial
v.
applies
U.C.C.
here.
1, 24-25,
74 L.Ed.2d
¶
and, apparently, Texas
21 Oklahoma
Reyn-
v. Dean Witter
Wilkinson
issue be-
not addressed the substantive
have
879;
Inc.,
olds,
1997 OK
However, two
have
сourts
fore this Court.7
¶ 23,
Jeffery,
47 at
1996 OK
Shaffer
addressing nearly
law in
iden-
applied Texas
P.2d at 917.
as
in
arguments
tical claims
conclu-
reached different
this case
OF REVIEW
VI. STANDARD
ME
sions. Stenzel
(Me.2005);
v. Dell Com-
proceedings govern A.2d 133
Under
Defontes
03-2636,
arbitration,
puters Corp., No.
PC
2004 WL
C.A.
applications to
ing
2004)
in
(R.I.Super.Jan.29,
cited
is a
of an
to arbitrate
¶ 28,
Stenzel,
at 144
ME
at
870 A.2d
Questions are re-
of law.
laws
question
indicated,
Ap-
publication
Court of Civil
Oklahoma
references to
6. Unless otherwise
O.S.2001,
parallel provisions
app.,
of the
ch.
rule
peals,
include the
U.C.C.
see
Texas
1.200(c)(2)),
juris-
U.C.C. and the
U.C.C.
Oklahoma
determined that
"consent
part
bind
as
an invoice did not
diction” sent
IV of the Oklahoma
7. We note
the Division
purchaser.
IJAM, Inc.,
Lively
Appeals
of Civil
Court
(ordered
P.3d
2005 OK CIV APP
(under
2.204(a)
Supreme
Rhode Island
Court Rule
section
of the Texas U.C.C.8 and
effect).
16(j),
precedential
has no
this order
concluded that the contract was formed when
plaintiffs
Both the
and the
courts
delivery
Stenzel
failed “to refuse
Defontes
computers”
found the facts
be as follows. Dell sold
and failed “to
right
exercise their
computers
plaintiffs.
It
computers.”
also marketed
to return the
Id. Based on its
third-party
service contracts on behalf of
language,
ser-
the court
analysis
assumed without
¶¶
providers.
charged
vice
what was
listed
Dell was the offerer.
Id. at
10-
tax
rejected
sales
on the service contracts and on
12. The court
plaintiffs’
claims
shipping charges.
illusory,
Dell remitted the amount
was
id.
¶¶
140-43,
unconscionable,
of the sales tax to
the state
15-23 and
either
where the
id. at
¶¶
143-45,
24-32,
computer
shipped
judgment
or turned it over to
and affirmed the
third-pаrty
provider
dismissing
the lower court
complaint
service
who remit-
145^46,
in favor of arbitration.
ted the tax to
Id. at
the state. After
order was
placed,
plaintiff
Dell sent each
an acknowl-
¶ 24 Stenzel and
are indicative of
Defontes
edgment or an invoice. With the invoice or
split
authority
on whether documents
acknowledgment, Dell included a “Terms and
such as the “Terms and Conditions of Sale”
Conditions of Sale” document which is sub-
submitted
present
case are
stantially the same as the one attached to its
binding. The cases most often cited as indic-
pres-
arbitration in the
ProCD,
ative of
disparate
outcome are
ent case. The document was also included
(7th Cir.1996) (the
Smith 03-01-00589- arbitration, pel CV, (Tex.Ct.App. July the district court 2002 WL should fol- 2002) (not designated publication summary procedures low the set out in this value). opinion. precedential without Because this previ- These two cases Court has not helpful primarily ously procedures are not here for the articulated the follow- to fol- be Muniz, ing applications In agreed compel arbitration, reasons. lowed on to they apply only that the arbitration binding, was applications thоse filed *3, S.W.3d WL at after appeal. mandate of this Section 2-207 only contested whether the claim fell within and other apply the U.C.C. agreement’s exceptions. apply the contracts here and to terms which Smith, “Gateway established that an arbitra- invoice, Dell can show were enclosed with the tion parties.” existed between the acknowledgment, inor package However, at *2. WL containing Smith purchased product. On de give court does not us underlying review, the facts novo the record is insufficient this conclusion. support the denying order compel arbitration. We reverse the district analysis agreements 30 Our limited denying court’s order to com- which fall under article of the U.C.C. This pel arbitration and remand with instructions. opinion’s analysis does not include The Court of Appeal’s оpinion Civil is vacat- ments to which article 2 of the U.C.C. is ed. inapplicable, such as which are goods.10 not for the sale of It also does not COURT OF CIVIL APPEALS’ OPINION clickwrap agreements include party where a VACATED; DISTRICT COURT’S ORDER must assent to the terms continuing before REVERSED; CAUSE REMANDED. purchase an on-line or installation of soft- ware. LAVENDER, OPALA, KAUGER, EDMONDSON, TAYLOR, JJ., concur.
VIII. PROSPECTIVE APPLICATION
WATT,
C.J.,
WINCHESTER,
with whom
31 Because
not
we have
before addressed
V.C.J.,
COLBERT,
HARGRAVE and
procedures
JJ.
employed
to be
proceed-
join, concurs.
I
ings
would withdraw
applications
arbitration,
certiorari as
we
having
improvidently granted.
been
only impose
procedures prospectively
these
applications
arbitration filed
KAUGER, J., dissenting to the denial of
after mandate issues in
appeal.
this
See
rehearing.
Lynn Hickey
McDaneld
Dodge,
¶30, 12,
OK
257. Because of
1 I originally concurred in the Court’s
prоcedures,
failure to use these
par-
of June
which reversed and
provide
ties failed to
the district court with
remanded the cause to the trial court.
sufficient
There,
facts to determine whether there
jurisdiction
the Court held that
was an
proper,
which was en-
but because
“proper procedures”
against
plaintiffs. Therefore,
forceable
court,
were not followed in the district
10. We
applied
(2002
realize that courts have
article 2
Supp.2004),
II U.L.A. 195
*9
agreements.
ques-
U.C.C. to license
The
http://www.law.upenn.edu/bll/ulc/uci-
tion of
applies
whether article 2 of the UCC
(last
to
29, 2005),
May
accessed
talucita200.htm
to
licenses is not before this Court.
gap
regarding
fill a
in the UCC
software licenses.
Id.;
2-102,
§§
the National
Only Maryland
Conference of
see UCC
Commis-
2A-102.
sioners of
Virginia
adopted
Uniform State Laws drafted the Uni-
and
have
the UCITA. Id. at 6
Computer
Act,
form
Information
(Supp.2005).
Transactions
7-
¶
compel
4 The
includes Dell’s motion to
application to
record
regarding the
issues
petition
arbitra-
enforceability of the arbitra-
dismiss
and
arbitration
and/or
tion,
generalities
which
as to how it
I now
offers
undeterminable.
tion
were
vote,
operates when customers
concurring
typically
order
my
and dissent.
withdraw
specific
provides nothing
to
computers. Dell
¶
in
opinion notes
2 The June
quotes
motion
this cause. The
to dismiss
that:
and
terms
conditions of sale and
are
to
of the facts
those
“... our statement
alleges
plaintiffs
to
it
arbitrate which
in
admit either
the dis-
which
agreed
to
on. Attached
the motion are:
”
appeal....
or in this
trict court
1) copies of
of
Ad-
portions
the Oklahoma
¶in 9 that:
оpinion also determines
The
Code;
ministrative
nothing
the record about
“.. .there
2)
ruling;
copy
taxa
commission
plaintiffs
computers,
how the
ordered
3)
mail,
internet,
copies
plaintiff,
invoice to the
Fab
an
whether over the
Industries,
9/13/02,
in-
Likewise,
dated
and an
nothing
Seal
there is
about
phone.
Rogers,
plaintiff,
dated
voice
between
processes
and conversations
10/10/01;
finally,
they
and
plaintiffs
placed
Dell and the
they were re-
their orders or whether
4) copies of a terms and conditions of sale
and
‘Terms
Condi-
quired
consent
printed from the internet
6/4/03
”
placing
of Sale’ when
the orders....
tions
provision.1
an
include
nec-
opinion also discerns that
facts
The
language
Identical
contained in each
essary
analysis
which state: “PLEASE
invoices
SEE
agreement
is inte-
whether
IMPORTANT TERMS & CONDITIONS
grated intо
and
of Sale
the Terms
Conditions
ON THE REVERSE SIDE OF THIS IN-
proposal
it
to add terms to
whether
reverse
side of
invoices
VOICE.”
not
the record
the contract are
the terms and
are blank.and
conditions
for review.
provided
print-
are
in the
record were
painfully clear
It has
what
become
years
invoice and a
ed two
after
first
.
missing
anything
exactly was
which year after the
invoice.
second
legally compe-
would allow court make
¶ Although
assumptions
the Court makes
as to whether there was
tent determination
an
as to the existence of
arbitrate,
an
let alone whether
ment,
plaintiffs
always
its
denied
was enforceable. After ac-
assert,
response
plaintiffs
existence.
knowledging
necessary information is
petition
to Dell’s motion to dismiss the
and/or
missing,
majority
its conclusion on
basеs
arbitration,
that:
assumptions. The
states
10:
“In its
Plaintiffs into
zeal
purposes of
assume for
discussion
“We
arbitration,
skips past the
Dell
threshold
only
repre-
received
i.e.,
an enforceable
question;
whether
and
of Sale’
sentative ‘Terms
Conditions
arbitrate exists between Dell
invoice
ac-
either with the
document
and Plaintiffs....
knowledgment,
shipment
moving party, Dell has the
provi-
.. .As the
computer, or both. The arbitration
establishing
existence of an
sion included in the ‘Terms
Conditions
burden
sure,
document,
arbitrate..
.To be
received and if en-
of Sale’
forceable,
in a
require
highlights
arbitration clause found
would
against
published on its Internet web-
their
Dell or its affil-
document
submit
claims
vmm.dell.com,
site,
June
binding
iates to
arbitration.”
substantially
to the extent that
similar—at least
is noted that the bottom of the terms
It
quoted.
coрyright
are
The most current
states a
for 1999-
the documents
conditions document
Comparing quoted
from one sub-
Corporation.
version available online differs
to Dell
by formatting changes
portions
mentioned
mitted
of the terms
conditions
governing
expand-
regarding
suggests
Texas law
been
caselaw
that the those involved in
provided
ed.
cases and the one
other
*10
present
non-moving party
present
But Dell fails to
this
to
that
2003....
evidence
any
signed by
Court with
document
either
supported
agreement
arbitration
is not
purporting
agree-
to
an
of Plaintiffs and
be
apply
dispute
valid or that it does not
to the
arbitrate,
any
nor
ment to
does Dell offer
question.4
in
attesting
unsigned,
affidavit
that the
stan-
compel
9 A motion to
arbitration is analo-
to
dard form document attached
its motion
gous
summary
a
judgmеnt.5
to motion
any way presented to
as Exhibit E was in
summary judgment
On a motion for
mov-
accepted by
and
of
either
Plaintiffs
ant
to
must attach
its concise
state-
written
2002, respectively
they pur-
and
when
copies
acceptable evidentiary
ment
of
computers.”2
chased the
upon
support
materials
to
motion.6
relied
reply
7 In
response
its
to the
arbitration,
Similarly,
compel
on a motion to
petition
Dell’s motion to
dismiss
and/or
present
movant must
least
an
compel arbitration,
argues
Dell
that
garner
hearing
a
on the
arbitrate
opportunities
had three
to review
presented
issue.
Had this been
sum-
contract, including
the arbitration clause: mary judgment
party
moving
motion and the
1)
2)
website;
at Dell’s
the invoice
disputed agreement
could not show that a
received;
acknowledgment of the order was
existed, it
would
been dismissed. Ac-
3)
and
shipment
of
the order.
cordingly,
properly
the trial court
denied
also noted that should Plaintiffs
decide
compel
Dell’s motion to
arbitration.
issue,
prepared
contest
sub-
advisory
10 The
neither
Court
issues
mit affidavits
of
to confirm
notification
opinions
hypothetical questions.7
nor answers
the terms
of
and conditions
the sale were
Nevertheless,
recognizing
after
that it could
fully
purchasers. Although
communicated to
not make a
concerning
determination
wheth-
contested,
the matter was
no affidavits were
er the decision to
arbitration was
notes,
majority opinion
submitted. As the
properly denied because there is no arbitra-
accuracy
“Dell did not
any
attest to
record,
agreement
tion
alleged
these
attachments or
fact that
goes
lengths
“prop-
to exhaustive
to set forth
these
plaintiffs.”
documents
sent to
were
procedures”
er
for the trial court
to use.
¶ 8 The initial
is on
party peti-
burden
tioning
recognizing
the court to
Af-
After
arbitration.3
ter
an
question
the motion to
arbitrate
has been
is a
law,
made
supported,
admitting
the burden is on the
that the are insufficient
plaintiff
Bruno,
Enterprises,
2. The
addendum to its mo-
Fleetwood
Inc. v.
see note
1)
opposition
tion
copy
supra;
which includes:
of
2,
Rosenthal Great WesternFin. Securities
privacy policy
February
Dell’s
dated effective
Corp.,
supra.
see note
In a recent California
2000; 2)
case,
Molinari,
the Better Business Bureau's on-line
Cal.App.4th
Villacreses
reliability program requirements
dispute
res-
Cal.Rptr.3d
571
tenee of an arbitration
agreement.
whether
the
to
facts
determine
change
opinion
to
the
urges the Court
arbitrate,
holds that “the
to
the Court
agreed
denying
the trial court’s order
Dell’s
overrule
support
to
the order
is insufficient
record
argues
compel
motion to
arbitration. Dell
to
arbitra-
denying the
opinion
policies of
the
undermines
the
sup-
to
If
were insufficient
the record
tion.”
Code, 12A O.S.2001
the Uniform Commercial
arbitrate,
finding
of an
to
port a
seq.
1-101 et
§§
disregarding
established
is,
it
how could it also bе insufficient
which
practices
ignoring
commercial
the
which denies an
support an order
weight of
case law established under
It
can’t. The order
arbitration?
§ 2-207 of the Uniform Commercial Code.8
denying
inapplicable
acceptance
is
Section 2-207
Here, the
and should have been denied.
was
product
a
when the terms and conditions are
validity
regarding
decision issued
product
packaging
included
and the
is
on assumed
is based
agree
While I cannot
not returned.
advisory opinion.
facts and results
would have us
result
that Dell
reach because
petition
a
July
12
Dell filed
insufficient,
On
totally
the record is
retro-
rehearing seeking
spect,
argument
minority
reconsideration
Dell’s
impractica-
opinion, which concerns
exis-
view9 embraced
of the
VII
679,
(S.D.2001);
provides:
F.Supp.2d
O.S.2001 2-207
214
687
8. Title 12A
Westendorf
2000, Inc.,
307369,
Gateway
2000
v.
WL
3
"(1)
expression
A
definite and seasonable
opinion];
(Del.Ch.2000)[Unpublished
Peerless
acceptance
a
which is
or written confirmation
Synchronies,
operates
Coverings, Inc.
an Wall & Window
v.
a reasonable time
sent within
acceptance
Inc.,
(W.D.Penn.2000);
though
F.Supp.2d
terms
even
it states
addi-
85
519
Hill v.
Inc.,
2000,
1147,
(7th
Gateway
from those offered or
tional to or different
1150
105 F.3d
expressly
denied,
agreed upon,
acceptance
Cir.1997),
808,
unless
cert.
ProCD,
assent to the additional or
47,
(1997);
made conditional on
Incorporated
1447,
different terms.
(7th Cir.1996);
Zeidenberg, 86 F.3d
1452
v.
are
construed as
The additional terms
to be
Inc.,
2000,
246,
Gateway
Brower v.
246 A.D.2d
proposals
contract. Be-
for addition
569,
(1998);
N.Y.S.2d
572
Providence &
676
part of
tween merchants such terms become
Sargent Greenleaf,
Co. v.
&
Worcester Railroad
the contract unless:
680,
Inc.,
(D.R.I.1992).
F.Supp.
802
(a)
expressly
acceptance to
the offer
limits
minority approach
looks
circumstances
offer;
terms
product;
surrounding the order of the
deter
it;
(b) they materially alter
formed; and
when the contract was
then
mines
(c)
objection
al-
notification of
to them has
applies §
2-207 of
U.C.C.
determine
given
given
ready
been
or is
within reason-
integrated
packaging
included in the
terms
able time after notice of them is received.
Computers
v. Dell
into
contract. Defontes
recognizes
both
Conduct
253560,
Corp.,
(R.I.Super.2004);
2004 WL
6
Klo
of contract is sufficient
estab-
Inc.,
1332,
Gateway,
F.Supp.2d
v.
1338-
cek
104
although
writings
lish contract
sale
Orris,
(D.Kan.2000);
Corp.
Surgical
v.
41
U.S.
a con-
do not otherwise establish
1201,
(D.Kan.1998);
F.Supp.2d
Ari
Inc. 5
1206
particular
tract.
In such case the terms of the
Link, Inc.,
Sys. Inc.
Retail
v.
831
zona
Software
contract consist of those
on which the
terms
759,
(D.Ariz.1993);
F.Supp.
Step-Saver
765
Data
parties agree,
any
writings
together
Wyse Technology,
Systems,
v.
F.2d
Inc.
939
incorporated
supplementary terms
under
Cir.1991).
(3rd
104
act.”
other
of this
Some of the cases Dell relies
involve on-line
approach recognizes
majority
that the con
click-wrap agreements
licensing agreements
purchaser
to re
tract is formed when the
fails
party
it
clear that a
assented
where
product,
assumption
under the
turn
purchase
continuing
or installa
terms before
offer,
pur
seller master
and holds the
Associates,
tion of software. Davidson
by any
pack
chaser
terms included in the
bound
F.Supp.2d
Gateway,
Inc.,
334
1176
Internet
aging
product.
2005
v.
Stenzel
(E.D.Mo.2004)
agree
[Software end user license
(2005);
A.2d
v.
ME
870
133
Rosеnbaum
enforceable.];
Corp.
The.TV
(N.Y.
ment was
DeJohn v.
Gateway,
Supp.
realities because *12 record,
there is no I see no
reason to the trial advise court as to the
“proper procedures” under these facts.
Gwendolyn Kay PARRET, Plaintiff, COMPANY,
UNICCO SERVICE a Dela Corporation, Bridgestone/Fire
ware
stone, Inc., Dayton Tire, an Ohio d/b/a
Corporation, Defendants. 99,883.
No.
Supreme Court of Oklahoma. 28,
June 12, Denying Rehearing Sept.
Order
contract.];
568,
enforceable
Corp.,
Fonest v. Veri
140 Wash.2d
Software
Communications, Inc.,
(2000)
805
zon
A.2d
312
shrink-wrap
[Terms of
license were
(D.C.App.2002)
contract”.];
[Notice of forum
"layered
RealNetworks,
selection clause
In Re
sufficient.];
click-wrap agreement
(N.D.I11.2000)
2000 WL
[Licens-
Bischoff
DirecTV, Inc.,
F.Supp.2d
ing agreement
held.];
required
up-
(C.D.Cal.2002)
Network, L.L.C.,
[Arbitration clause
Caspi
in customer
Microsoft
service
which did
N.J.Super.
not involve the sale
732 A.2d
[On-
goods
enforceable.];
was valid
Equip
1-A
subscription
line
generally,
valid.]. See
Kevin W.
Icode, Inc.,
Grierson, Annot.,
ment Co. v.
2003 WL
Enforceability
"Clickwrap”
(Mass.App.Div.2003)
agree
[End
"Shrinkwrap”
user software
Agreements
Common in Com-
valid.];
Software,
Corp.,
Hardware,
Moore v.
puter
tions,
and Internet Transac-
Microsoft
A.D.2d
(2003).
N.Y.S.2d
[End-