United States: Ninth Circuit Affirms District Court’s Refusal To Enforce Arbitration Clause In Barnes & Noble’s Browsewrap Agreement—Conspicuous Hyperlinks To Terms Of Use, ‘Without More,’ Is Insufficient

E-commerce forges ahead as many consumers' preferred way of buying things, and the law is evolving to meet the demands of advancing technology while also accounting for the public's protection. In the most recent example, the Ninth Circuit Court of Appeals published an opinion, Nguyen v. Barnes & Noble Inc., 2014 U.S. App. LEXIS 15868 (9th Cir. August 18, 2014), in which the court invalidated the bookseller's arbitration clause in its Web site's terms of use, putting businesses on notice that something "more" is needed before courts will enforce certain browsewrap agreements.

Nguyen is a putative class action concerning Barnes & Noble's online "fire sale" to liquidate, at highly discounted prices, its inventory of a discontinued tablet computer. Nguyen had purchased two of the tablets and received e-mail confirmation. But the next day, due to unexpectedly high demand, Barnes & Noble cancelled his order. Nguyen then sued for damages on behalf of himself and similarly situated consumers.

Barnes & Noble responded by moving to compel arbitration. Its Web site's terms of use provided that all disputes arising out of the site's use must be resolved in binding arbitration that must be conducted via telephone or online and without mandatory in-person appearances. Additionally, no claims could be consolidated with those of other parties, and the parties expressly waived class arbitration.

However, these usage terms were presented to consumers in browsewrap agreements—i.e., an agreement containing mandatory usage terms that can be reviewed via a hyperlink. Barnes & Noble attempted to tie the consumer's continued site usage with assent to the browsewrap agreement's terms, even though users could make a purchase without actually seeing the agreement's terms—or even knowing they exist. This stands in contrast to clickwrap agreements, which force users to affirmatively click a button or box that shows their consent.

So it was with Nguyen, who claims he never actually followed the link to Barnes & Noble's terms of use, and never even knew they existed. In deciding whether Nguyen constructively assented, the court analyzed the Web site's design and content to determine if a reasonably prudent user would have been on inquiry notice of the usage terms. For example, the court noted:

  • Barnes & Noble made the terms available through a conspicuous link in the bottom left corner of every page on the Web site
  • the link appeared prominently alongside links to other similar information, such as a privacy policy and copyright terms, each of which was displayed in underlined green typeface
  • on at least some pages, the link was visible without needing to scroll down
  • the link appeared directly below buttons that consumers must click to checkout, so consumers saw the link before they completed orders.

Nevertheless, the Ninth Circuit held that "where a Web site makes its terms of use available via a conspicuous hyperlink on every page of the Web site but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice." Id. at *17 (emphasis added).

What more (other than converting to clickwrap) should Barnes & Noble have done? The court doesn't exactly say. But it does discuss with approval other browsewraps that, in addition to making terms available via a prominent link, also provided explicit, sufficiently noticeable warnings that continued use of the site would bind users to the terms. For example, the court extols one such browsewrap that contained such a notice at the bottom of every page. But, Barnes & Noble had not provided such a notice.

Two things should be noted about Nguyen. First, the case is likely distinguishable from those involving business-to-business e-commerce. Nguyen concerns consumers, and the opinion expressly notes courts' traditional willingness to enforce browsewraps against businesses but not against individual consumers. Still, even in the business-to-business context, this may be a situation where an ounce of prevention is worth a pound of cure, and companies may want to take note of this decision and adjust their e-commerce practices accordingly.

Second, the stakes here were certainly larger than just the proper forum for hearing plaintiff's claims. Under recent Supreme Court precedent, such class waivers in arbitration provisions are enforceable, and enforcing arbitration here would likely have ended the case. Of course, this underscores the potential value of getting consumers' effective agreement to usage terms.

In sum, Nguyen lends an important lesson for businesses engaging in e-commerce with California consumers, and who want to do all they can to improve the chances of their arbitration agreements being found enforceable. It appears safest to move to clickwrap and require affirmative evidence of consumer assent to usage terms. Otherwise, if businesses still prefer to use browsewraps, they should at the very least make sure that: (1) usage terms are available via a conspicuous link; and (2) the site contains conspicuous textual notices that use constitutes agreement with the usage terms—and, even then, it is not certain that such provisions will be upheld in light of Nguyen. In the end, despite federal courts' now 30-year record of enforcing arbitration agreements, arbitration is still a matter of contract, which requires both parties' agreement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.