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When Terms of Use Put 'Reasonably Prudent User' on Notice

By Richard Raysman and Peter Brown

On Aug. 17, 2017, the Second Circuit issued its decision in Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017). The appeals court vacated and remanded the trial court ruling by holding that the registration process for Uber Technologies, Inc.'s mobile application formed a legal contract, thereby requiring the plaintiff to arbitrate his claims that Uber and its then-CEO violated antitrust laws. In doing so, the Second Circuit extended the legal implications of the seeming ubiquity of smartphone use, while also reaffirming the staunch federal court preference towards enforcement of arbitration clauses.

Less than a month later, the Southern District relied on the Meyer decision in granting the defendant's motion to compel arbitration based on the fact that the design and functionality of defendant's amended terms of use placed plaintiffs' on “reasonably conspicuous notice” of the mandatory arbitration and jury trial waiver provisions. See, Pincaro v. Glassdoor, No. 16 Civ. 6870 (ER), 2017 U.S. Dist. LEXIS 147517 (S.D.N.Y. Sept. 12, 2017). As in Meyer, the district court decision was in part premised on the reality that a “reasonable” Internet user would know that a blue highlighted hyperlink is the archetypal command to a user that the entirety of the referenced document can be viewed by clicking on the hyperlink.

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