Chapter 5 - § 5.11 • SPECIFIC TYPES OF ARBITRATION AGREEMENTS

• Jurisdiction: Colorado

§ 5.11 • SPECIFIC TYPES OF ARBITRATION AGREEMENTS

§ 5.11.1—Electronic Agreements

Arbitration clauses created on the internet by checking "I accept terms" or something to that effect are generally valid.¹²⁶ These include:

• "Clickwrap" or "click-through" agreements, "in which the Internet purchaser is required to affirmatively click an 'I agree' box after being presented with a list of terms and conditions of use."¹²⁷
• "Browse wrap" agreements, "in which terms and conditions of use are posted on a website accessible through a hyperlink at the bottom of the . . . computer screen [and the consumer] conveys assent simply by using the product."¹²⁸

Under both types of electronic agreements, as well as hybrids, the threshold issue is whether the consumer had reasonable notice (actual or constructive) of the terms of the asserted agreement, and whether the consumer manifested assent to those terms (usually by clicking "I accept").

However, the Second Circuit held that an internet merchant cannot compel arbitration with a consumer when it only e-mailed the consumer the arbitration agreement after the consumer agreed to the purchase, without any requirement that the consumer affirmatively consent to the terms.¹²⁹ However, the courts uphold arbitration agreements created on the internet by the claimant's checking a box indicating assent to terms and conditions.¹³⁰ Whether the parties have agreed to arbitrate generally is a matter of state contract law.

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Notes:

^[126] Vernon v. Qwest Commc'ns Int'l, Inc., 857 F. Supp. 2d 1135 (D. Colo. 2012); Grosvenor v. Qwest Commc'ns Int'l, Inc., 2010 WL 3906253 (D. Colo. 2010); Hancock v. AT&T Co., 701 F.3d 1248 (10th Cir. 2012).

^[127] Vernon, 857 F. Supp. 2d at 1149.

^[128] Id.

^[129] Schnabel v. Trilegiant Corp., 697 F.3d 110 (2d...