In August 2011, Kevin Nguyen tried to buy two HP Touchpads from Barnes & Noble. At that time, the Touchpad had been discontinued and retailers across the country were selling off their remaining stock at fire sale prices. Nguyen ordered his touchpads from Barnes & Noble’s website and received email confirmation of the sale. The following day, however, Barnes & Noble sent another email citing unexpectedly high demand and cancelling the order.
Nguyen responded to his cancelled order by filing a putative class action lawsuit. Nguyen claims he missed his chance to get his bargain Touchpads elsewhere because he thought he was getting them from Barnes & Nobles. As a result, he was “forced” to buy a more expensive substitute tablet.
This type of “browsewrap” agreement is generally enforceable, although courts are reluctant to enforce them against individual consumers. A user must have actual or constructive knowledge of a website’s terms and conditions in order for the agreement to be valid in the absence of an affirmative manifestation of assent by the user (e.g., when the user doesn’t have to click an “I Agree” button).
The court placed the burden on website owners to give users notice of the site’s terms and conditions, especially if the users are individual consumers. Thus, website owners should ensure that users of their site are at least given explicit notice of such terms, or better still, required to affirmatively click a button or check a box indicating agreement to the terms.
The full opinion can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/18/12-56628.pdf.