Consumers’ mere use of a retailer’s website was held insufficient to bind them to an arbitration clause contained in a “terms of use” hyperlink on the website. Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (No. 12-56628).  The terms of use containing the arbitration clause were posted via a hyperlink at the bottom of the retailer’s website screen.  There was no evidence, however, that consumers had actual notice of the terms of use or were required to affirmatively acknowledge them before completing their online purchases.  The court concluded that close proximity of the hyperlink to the relevant button that users had to click to confirm their purchase was insufficient to give rise to constructive notice, as the website provided no notice to users or prompted them to take affirmative action to show assent.