Nguyen v. Barnes & Noble, Inc.
United States Court of Appeals for the Ninth Circuit
763 F.3d 1171 (2014)
Kevin Nguyen (plaintiff) bought two discounted Hewlett-Packard Touchpad tablets from the Barnes & Noble (defendant) website, only to have his order cancelled the next day due to high demand; he sued for deceptive trade practices and false advertising. Barnes & Noble moved to compel arbitration, arguing Nguyen was bound by its Terms of Use (TOU), accessible via a hyperlink at the bottom of every webpage, which purported to bind any visitor, account creator, or purchaser to arbitration — even though Nguyen had never clicked the hyperlink or read the TOU. The district court denied the motion to compel arbitration, and Barnes & Noble appealed.
Whether a website user has sufficient constructive notice of terms of use, and is thereby bound to an arbitration clause within them, when the terms are accessible only via a hyperlink on every webpage but the site otherwise gives no notice and requires no affirmative act of assent.