As the Maryland courts recognize, we all “agree” to “click‐wrap” agreements routinely,1 but can we be compelled to arbitrate when we do? While the Maryland courts have yet to rule directly on this issue,2 such agreements would likely bind a business – but not necessarily a consumer – to arbitrate. Here’s why:
As the Maryland Court of Appeals “noted more than 60 years ago, the question of arbitrability is one of intention. No one is under a duty to resort to arbitration tribunals, however helpful their process, except to the extent that he has signified his willingness.”3 In a case between businesses involving the validity of a click‐wrap agreement’s forum selection clause, the Hon. Ronald B. Rubin of the Circuit Court for Montgomery County (a) noted that under Maryland law, a party’s conduct may manifest intent to be bound to a written contract and (b) found that the defendants accepted the terms of their click‐wrap agreement when they clicked on the “I Accept” button.4 Is there really more to the issue?
On December 11, 2012, in Hancock v. AT&T, the Tenth Circuit Court of Appeals noted that, applying state law contract principles, “[c]ourts evaluate whether a click‐wrap agreement’s terms were clearly presented to the consumer, the consumer had an opportunity to read the agreement, and the consumer manifested an unambiguous acceptance of the terms.” 701 F.3d 1248, 1256 (10th Cir. 2012) (citations omitted). In that case, consumer plaintiffs were presented with a printed copy of terms (including the arbitration clause) related to the use of defendant’s Internet service, and specifically had to click an “I Acknowledge” button on a technician’s laptop prior to installation, and had to click another “I Agree” button when registering for the service. The court affirmed the district court’s enforcement of the arbitration provision.
Thus, when seeking to enforce an arbitration clause in a “click‐wrap” agreement in Maryland – particularly against an individual – the arbitration provision should be presented clearly, the user should be given an opportunity to review it and the user should be asked to “click” his or her assent unambiguously.