Barnes & Noble's Web Terms Of Service Not Enforceable Without Evidence That They Were Seen
from the who-needs-good-customer-service-when-you-have-a-lengthy-TOS? dept
For all the talk about the customer being right, the general attitude of most companies is that the customer is little more than a necessary evil. Between treating them like thieves by insisting on DRM, tying them up with EULAs that kick in as soon as the box is opened (and unreturnable), subjecting them to lengthy Terms of Service that no sane person would read start to finish and stripping away legal options through forced arbitration, most companies still pay lip service to the customer being "right" while carefully removing anything that might be considered a customer's "rights."Every so often, though, someone slips through the carefully designed system and does the impossible (at least according to the Terms of Service): drag a company to court. Barnes & Noble, despite the presence of an "arbitration only" clause in its TOS, found itself locked out of going its favored route, thanks to a lack of notification on its part. (Hat tip to Nate Hoffelder of The Digital Reader for sending this my way). Eric Johnson at the Blog Law Blog has the details:
The plaintiff in Nguyen v. Barnes & Noble 12-cv-0812-JST (RNBx) (C.D. Cal.; Aug. 28, 2012) sued because after he purchased two HP TouchPad tablet computers at a price he was happy with, Barnes & Noble e-mailed him saying they had cancelled the order.Now, instead of receiving two TouchPads at $101.95 each, Nguyen was "forced to rely on substitute tablet technology, which he subsequently purchased . . . [at] considerable expense."
Nothing unusual about this so far. Products sell out or pricing errors occur. The correct response would be to offer a replacement at the price Nguyen attempted to pay, but Barnes & Noble decided to simply cancel the order. Lousy customer service isn't uncommon, and B&N was likely surprised to find itself named in a lawsuit, especially when its Terms of Service clearly specify that taking it to court is not an option.
Barnes & Noble filed a motion to move this dispute to arbitration, a much more favorable venue, considering companies win in arbitration nearly 95% of the time. It claimed that Nguyen, simply by visiting the site, had agreed to the terms of use, which were buried in a link at the bottom of the page. Nguyen countered, stating that he did not "affirmatively assent" to the Terms of Use, as it was not necessary to click on the Terms of Use link to make a purchase and B&N never directs the customer to the Terms of Use at any point in the purchase process.
B&N's motion was denied as it couldn't show that Nguyen had "notice of the terms." It's a small oversight but one that could affect many other companies who choose to rely on the dubious legality of "browserwrap," rather than the more intrusive (and more enforceable) "clickwrap." Eric Johnson points out that Barnes & Noble had several options but instead chose to rely on a single, out-of-the-way link.
B&N could have had a pop-up “I agree” window or even just a box that Nguyen had to check saying he agreed to and had read the terms of service. They also could have written on the checkout screen about the transaction was subject to terms of service. But they didn’t do any of that. So, as a result, it looks like Nguyen will get his day in court.This doesn't really do much for consumers, however. It just means that Barnes & Noble (along with other companies) will institute something like the above to make sure their preferred legal option is not circumvented. This will do nothing to make the system less stacked in favor of the "house," and long, unreadable Terms of Service will still be the order of the day. Considering that not agreeing to the Terms of Service means not using that service, companies can still rely on customers to sell themselves in order to proceed with transactions. As Eric Johnson points out, this effectively makes them "answerable to no one."
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: arbitration, terms
Companies: barnes and noble
Reader Comments
Subscribe: RSS
View by: Time | Thread
B&N ticked me off, too!
Next day I got the, "I'm sorry, but we're out of stock. Your order is canceled." email.
How can anything in their terms of service cover the fact that they are selling things they don't have?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Arbitration is the devil
Arbitrators have no incentive to find in favor of the consumer. Do you, the consumer, have any clue who to pick as an arbitrator? No, of course not. It's a crap shoot for you. So the arbitrator has no incentive to cater to you, and is effectively selected by the company. Being an arbitrator pays REALLY well. Arbitrators are usually lawyers with subject matter expertise, and they usually charge their hourly rate.
If you become known as the arbitrator who doesn't side with the company that picks you, how long do you think you'll keep getting these cherry gigs?
Yeah, exactly.
Arbitration can be a useful tool in some contexts. Domestic law, employment disputes, etc. But in commercial transactions, I absolutely hate it.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
The courts have little choice. There's a statute on this, and it's constitutional, so they have to enforce it. Sometimes you can get the arbitration provision itself pitched as unconscionable. One company required the consumer to arbitrate in like Sweden or something, and the court knocked that one out of the park.
[ link to this | view in chronology ]
Re: Vote with your $$$
[ link to this | view in chronology ]
Re: Re: Vote with your $$$
What do you do when every single company starts doing the exact same thing?
The court ruling saying that companies can forbid legal action through their terms of service needs to overturned.
While we're at it, the Supreme Court needs an enema to flush out the crap...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Another reason they like arbitration ...
That's one thing I miss about brick and mortar. When you buy goods in a normal transaction, you don't have to sign a contract to buy something. You pay money, you get the product, and consumer protection laws govern the transaction, or at least the UCC.
All bets are off on-line... even if you did have some kind of solid legal argument, the license almost certainly includes a jurisdiction and venue clause requiring you to file wherever the company is located, which is almost certainly not where you are located.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
While the cost of implementing the ruling is de minimis for buying stuff, forcing people to click 'I agree' before accessing website content is a huge barrier that would absolutely kill traffic and conversion rates. Would it apply in this case too?
[ link to this | view in chronology ]
I'm not saying every place is like this but plenty are.. There are also plenty of people that get even most of the complex TOS some places list.
I get most of it however I refuse to read a TOS that's comparable in size to a FUCKING NOVEL! Plus when you start digging into the TOS there will definitely be parts you will not agree with I don't care who you are.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
TOS
[ link to this | view in chronology ]
http://www.pixiq.com/article/pixiq-refusing-to-migrate-public-usernames-in-pinac-transfe
[ link to this | view in chronology ]
Moreover, the courts should find forced arbitration clauses unconscionable.
[ link to this | view in chronology ]
They sometimes try to stop you reading the agreement
If you could prove that they had deliberately tried to discourage people from reading the terms, would that invalidate them?
[ link to this | view in chronology ]