Jeff Kosseff writes:
The Ninth Circuit recently issued two opinions addressing whether companies should require customers to explicitly agree to key provisions of user terms and other policies.
On Monday, a unanimous three-judge panel issued an opinion in Knutson v. Sirius XM Radio. In this case, the plaintiff purchased a Toyota that included a trial subscription to Sirius. About a month after his trial subscription began, he received a Welcome Kit that included a customer agreement with an arbitration clause.
[…]
The Knutson decision comes a few months after the Ninth Circuit’s opinion in Nguyen v. Barnes & Noble, Inc., in which the Ninth Circuit refused to enforce an arbitration clause on Barnes & Noble’s website’s terms of use. The terms were made available to users via a link at the bottom of each page of the website. But the site did not require users to affirmatively agree to the terms, such as by checking a box or clicking “I agree.”
Read more on Covington & Burling InsidePrivacy.