e-Commerce Docket Sheet

The online availability of a service agreement containing an arbitration clause, which could have been viewed by a consumer prior to his purchase of a mobile phone in a brick-and-mortar store, does not overcome the consumer's claims of procedural unconscionability based on the fact that the agreement may not have been available in the store at the time of purchase. Trujillo v. Apple Computer, Inc., 2008 U.S. Dist. LEXIS 32128 (N.D. Ill. Apr. 18, 2008). The court denied the defendant's motion to compel arbitration on the consumer's purported class-action suit, but allowed the parties to rebrief the issue and submit additional affidavits. The court noted that the availability of the service agreement prior to the plaintiff's purchase of the mobile phone “may be a critical factor in determining the issue of procedural unconscionability,” but due to the insufficiency of facts on the record, the court ordered the parties to make supplemental submissions. The court rejected the defendant's argument that the service agreement's online availability was sufficient, stating that the defendant has not “cited any Illinois case supporting the proposition that an agreement is available prior to the customer's purchase of a product only if the customer goes and looks for it elsewhere (including on-line).”