Second Circuit Court of Appeals Reaffirms Strong Federal Preference for Enforcing Arbitration Agreements in the Evolving Era of Web-based Contracting

Uber

In a big win for the tech industry and app developers, and for other companies seeking to enforce arbitration agreements through web-based interactions, last week the Second Circuit Court of Appeals held that the plaintiff in a putative class action entered into an enforceable arbitration agreement when he registered for Uber Technology, Inc.’s (Uber) app. See Meyer v. Uber Technologies, Inc., et al., Nos. 16-2750-cv, 16-2752-cv (2d Cir. Aug. 17, 2017).  The Uber app publishes Uber’s terms and conditions, which contain a mandatory arbitration clause, via hyperlink on the app’s registration screen.  The lower court had concluded that Uber’s notice of its terms of service was not reasonably conspicuous to users, and thus, users did not unambiguously assent to a mandatory arbitration provision contained in those terms. Id.  The Second Circuit disagreed.  It held that Uber’s publication of its terms and conditions via a conspicuous hyperlink put users on inquiry notice of the relevant terms, including the mandatory arbitration provision.  In reversing the lower court, the Second Circuit did, however, remand the case so that the lower court could determine whether Uber had waived its right to arbitration by engaging in discovery in the case.

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How Companies Should Prep for Enforcement Shift to State AGs

State

“Top Cop” is how every state Attorney General wants to be known. In reality, state AGs have far more authority for civil enforcement than they do for criminal prosecution.  Their civil authority can be vast when partnering with federal agencies, utilizing federal enforcement statutes, and coordinating U.S. Department of Justice (DoJ) criminal investigations.

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On Remand From Supreme Court in Spokeo, Ninth Circuit Holds FCRA Violation Satisfies Article III Standing

TCPA

The Ninth Circuit finally weighed in again on Article III standing issues after the remand of the Spokeo case from the United States Supreme Court.  The Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), addressed whether a willful violation of the Fair Credit Reporting Act (“FCRA”), absent proof of actual damages, constituted sufficient harm to confer Article III standing to a FCRA plaintiff.  The Court ultimately declined to resolve the question, instead remanding the case back to the Ninth Circuit to consider whether the Spokeo plaintiff’s injuries were sufficiently “concrete” to confer Article III standing.  In so doing, the Court advised that a statutory cause of action does not automatically empower courts to resolve alleged violations of the statute; rather, Article III requires that the statutory violation must cause the plaintiff to suffer harm that “actually exist[s]” and is not merely “abstract” or “procedural.”  136 S. Ct. at 1548-49.

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Back to Basics: A Review of Recent SCOTUS Personal Jurisdiction Jurisprudence

Trump

As its term drew to a close, the Supreme Court handed down its latest decision on personal jurisdiction in a case entitled Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty.[1]  Over the last six years, the Supreme Court has issued six opinions clarifying the limits of courts’ personal jurisdiction, each invalidating the exercise of jurisdiction.  Given these major, relatively fast-moving developments in such a fundamental area of the law, we thought a brief overview would be helpful for companies to better understand where they can and cannot be sued.  This post will take each of the Court’s recent decisions in turn to give you the brass tacks of what you should know about the holding and conclude with some thoughts about where the Supreme Court might go from here.

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State AGs are Flexing Their Muscles to Protect Your Technology Privacy

Technology

Headlines for state Attorneys General have been dominated by pursuits with the Trump Administration – whether the travel ban case going to the U.S. Supreme Court or challenges to legacy regulations at federal agencies. Less visible, state AGs are pushing forward on their interests and influence in technology-oriented consumer products, as highlighted in panel topics at various Attorney General meetings this summer.  What is discussion now among state AGs can often result in legal action, and technology companies should be aware of what’s on the agenda.

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