In an opinion today, Judge Rakoff denied a motion to compel arbitration of antitrust claims against Uber’s CEO because he found that the arbitration clause was too concealed for the plaintiff to have reasonably agreed to it. (See our prior posts on the case here.)
[T]he Court finds that plaintiff Meyer did not have “[r]easonably conspicuous notice” of Uber’s User Agreement, including its arbitration clause, or evince “unambiguous manifestation of assent to those terms.” Most importantly, the Uber registration screen. . . . did not adequately call users’ attention to the existence of Terms of Service, let alone to the fact that, by registering to use Uber, a user was agreeing to them. . . .[T]he Terms of [Service] hyperlink . . . [is] simply too inconspicuous . . . . When to this is coupled the fact that the key words “By creating an Uber account, you agree to” are even more inconspicuous, it is hard to escape the inference that the creators of Uber’s registration screen hoped that the eye would be drawn seamlessly to the credit card information and register buttons instead of being distracted by the formalities in the language below. And this, the Court finds, is the reasonably foreseeable result.
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