The plaintiffs are suing for a data protection violation. The defendant attempted to enforce its arbitration clause in its membership agreement. The court finds the contract and sends the case to an arbitral tribunal.
The case includes the following screenshot as part of the membership application:
The green button says "Continue". Before prospective members can proceed, they must check the mandatory checkbox (in white above the green box) that says, "I understand and agree to all of the conditions listed." The yellow box reads: "By submitting an application, the applicant agrees to comply with the provisions of the AAU Code, including its statutes, statutes, guidelines, procedures, rules and regulations." Each of these documents referred to , is provided with a hyperlink. The yellow field also contains the statement: "I accept all conditions for this AAU membership application as specified in the AAU code book (available here) and in this application."
Each link to the code book leads to a table of contents page, where potential members can access a PDF of the entire code book or follow further hyperlinks to each component of the code book. If they navigate properly, the prospective members will eventually see the arbitration agreement.
The court said Hidalgo had properly taken note of the terms. The court positively cited the following design decisions:
- The page is "relatively clear". This includes the bold yellow shades and blue hyperlinks. "The relevant text in the" General Terms and Conditions "field on the AAU application screen makes a sensible user aware of the yellow background because of the blue hyperlinks, the red asterisks, the normal font size and the clear contrast between the mostly black text. "
- Although the application was lengthy, potential members had to go through the Terms and Conditions section to complete the process.
- Due to the two-click process, the court calls this a "click wrap" (click on the terms and conditions and then click on the "Next" button). The call to action has been appropriately formulated.
- The general terms and conditions were "spatially and temporally coupled" with the submission of the application.
I think the dish is generous and calls this a "fairly straightforward" page. There is a lot going on. However, a mandatory two-click process can solve many other problems. All in all, this is a strong contract, and it is not surprising that the court has blessed him.
Still, Hidalgo applied for membership on his iPhone through the Safari browser, and apparently the application wasn't optimized for mobile devices. As a result, the plaintiff "complains that he had to move the screen back and forth for each line of text and zoom in and out because the full application was not simultaneously visible on the iPhone screen." The argument falls flat because, despite the navigation problems, Hidalgo actually remembered going through the contracting process. He also checked the mandatory checkbox. The court added:
The plaintiff does not indicate any authority for the suggestion that a reasonably prudent smartphone user will not have a request for the terms and conditions if the user physically ticks a box indicating that the user understands and agrees with the terms and conditions. In addition, the plaintiff cannot explain why a "reasonably prudent smartphone user" would not adequately take note of the hyperlinks on the AAU application page just because the smartphone user had to scroll and enlarge and reduce certain texts on the smartphone screen Please, fill in the application!
Hidalgo also complained that the codebook was 170 pages long, so he didn't have to wade through this monster to find the arbitration clause. The court does not understand this argument. Among other things, the court stated that applicants could search for “binding arbitration” in the table of contents. This is a minor scam because we now know that arbitration is the clause that he had to review. That was not clear when it was founded. Instead, Hidalgo was faced with 170 pages of Legalese that God knows what might contain. I doubt that one of us would have prospectively checked all 170 pages in full, just in case.
While AAU achieved the desired contract conclusion result (mandatory two-click processes FTW!), It could have done an even better job by optimizing the site for mobile devices. You should ALWAYS review your contract design across multiple devices and operating systems to ensure that everything is working properly across all interfaces.
Case quote: Hidalgo v. Amateur Athletic Union of the USA, Inc., 2020 WL 3264174 (SDNY June 16, 2020). For reasons that are not clear to me, the opinion came through Westlaw a second time 2020 WL 3442029 with an alleged signature date of June 24, 2020.