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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Thursday, January 23, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss the enforceability of arbitration agreements with class action waivers in online sale of goods and use of services to consumers.

Faculty

Michael E. McCarthy
Shareholder
Greenberg Traurig LLP

Mr. McCarthy focuses his practice on complex commercial litigation and class action defense. Hel also specializes in financial institutions, construction, real estate, privacy and appellate litigation. Mr. McCarthy represents companies in a variety of industries, including retail, consumer products and financial services.

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Melanie A. Conroy
Partner
Pierce Atwood LLP

Ms. Conroy focuses her practice on class action defense and complex commercial litigation. She has experience in investor and consumer class actions based on alleged consumer fraud and unfair practices, consumer privacy, medical device marketing, product recalls, website accessibility, banking disclosures, change of control transactions, insurance claims, securities laws, and fiduciary duties. Ms. Conroy has represented clients in connection with internal, government, and regulatory investigations, and has counseled boards of directors, board committees, and senior management on a broad range of matters, including securities, corporate governance, disclosure, data privacy, and regulatory issues.

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Jake Carroll
Partner
Nelson Mullins Riley & Scarborough LLP

Mr. Carroll advises clients in the construction, manufacturing, and real estate industries handling matters relating to commercial transactions, complex disputes, and corporate issues. He is a published authority on Georgia construction law as co-author of the Georgia Construction Law Handbook, a leading treatise published annually, and has specialized expertise in the agricultural equipment industry.

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Description

Many companies have added arbitration agreements with class action waivers to the online sale of goods and use of services to consumers. The enforceability of these agreements is a question of state contract law. Courts will compel arbitration if (1) a valid agreement to arbitrate exists, and (2) the dispute falls within its scope.

An inconspicuous online arbitration agreement with a class waiver through mere use of a website stands little chance of being enforced, so plaintiffs often assert lack of mutual agreement when the relevant terms and arbitration clause were not clearly noticeable. A number of circuit courts and state supreme courts have recently added to the jurisprudence of what constitutes reasonable notice of and assent to online class waivers and what amounts to conspicuous disclosures of terms requiring arbitration.

Recently, some companies have attempted to create "infinite arbitration agreements" whereby buying services or goods from one company operates as an agreement to arbitrate with any other affiliated or related company under any and all circumstances. Significant challenges to this practice are expected.

Listen as the panel of class action attorneys discusses the enforceability of arbitration agreements with class action waivers to the online sale of goods and use of services to consumers.

Outline

  1. Types of agreements: scrollwrap, clickwrap, sign-in wrap, and browsewrap
  2. Federal Arbitration Act
  3. Enforceability of online class waivers and arbitration agreements
  4. Recent cases
    • Toth v. Everly Well Inc., __ F.4th __, 2024 WL 428467 (1st Cir. Sept. 25, 2024)
    • Domer v. Menard Inc., 116 F.4th 686 (7th Cir. 2024)
    • Marshall v. Georgetown Memorial Hospital, 112 F.4th 211 (4th Cir. 2024)
    • Berman v. Freedom Financial Network L.L.C., __ F.4th __, 2022 WL 1010531 (9th Cir. Apr. 5, 2022)
    • Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014)
    • Chilutti vs. Uber Technologies Inc., 2023 WL 4611931 (Pa. Super. July 19, 2023)
    • Edmundson v. Klarna Inc., __ F.4th __, Case No. 22-557 (2d Cir. Nov. 3, 2023)
  5. Infinite arbitration: McGinty v. Jia Wen Zheng, et Al., Superior Court of New Jersey Docket No. A-1368-23 (Sept. 20, 2024)

Benefits

The panel will review these and other important issues:

  • When are online arbitration agreements unenforceable for lack of consent?
  • How can plaintiffs obtain discovery pertaining to how a company collects and stores "clickbox" data? How can defendants use this data to enforce arbitration agreements?
  • When are terms conspicuous, consistent with conspicuous terms that courts have enforced?