Contract Formation

First Circuit Concludes App User Is Bound by Arbitration Clause in App’s Terms and Conditions

May 4, 2021 by Brendan Gooley

The First Circuit Court of Appeals recently concluded that an app user had sufficient notice of and was bound by an arbitration clause in the app’s terms and conditions. The court rejected the user’s arguments that, among other things, she was not bound by the clause because she had to scroll down to see it. The court concluded that the user was bound by the arbitration clause.

Handy Technologies Inc. operates an application that enables users to retain house cleaners and other home services. Maisha Emmanuel, a nanny and housekeeper, signed up to offer her services through Handy’s app. As part of that process, Emmanuel submitted an application that required her to click a checkbox next to the statement: “I agree to Handy’s Terms of Use.” The phrase “terms of use” was a hyperlink that, if clicked, would have taken the user to Handy’s terms, which include a mandatory arbitration clause. Emmanuel, however, clicked the checkbox, submitting her application, without accessing or reviewing the terms of use. After an interview, background check, and orientation session, Emmanuel gained access to the Handy app, which contained a screen stating: “I understand that the Handy Service Professional Agreement has changed and that I need to carefully read the updated agreement on the following screen before agreeing to the new terms.” When Emmanuel clicked through to the next screen, she saw the initial portion of Handy’s independent contractor agreement. The visible portion noted that Emmanuel was agreeing to be bound by the agreement but did not display language regarding arbitration. Had Emmanuel scrolled down, she would have seen the mandatory arbitration clause. Emmanuel, however, did not scroll through the screens or terms when using the app.

Emmanuel subsequently filed a putative class action alleging that Handy had misclassified her and other similarly situated users as independent contractors when it should have classified them as employees and that Handy had therefore violated, inter alia, the FLSA by failing to pay her and similarly situated users minimum wage. Handy moved to compel arbitration.

The district court granted Handy’s motion, and Emmanuel appealed.

The First Circuit affirmed. The court applied Massachusetts law on notice to app users regarding arbitration agreements, concluding that Emmanuel had “reasonable notice of the term in the Agreement concerning arbitration” and that a valid contract to arbitrate therefore existed. Handy’s app was clear that Emmanuel was agreeing to a contract. Although the arbitration clause was not visible without scrolling, the app was clear that the entirety of the agreement could be viewed by scrolling down. Emmanuel’s onboarding process, which included an interview, orientation, and background check, also supported the conclusion that Emmanuel knew she was entering into a significant contractual relationship by signing up for Handy’s app.

The First Circuit also declined to consider Emmanuel’s contention that Handy’s agreement was unconscionable. Emmanuel’s argument regarding unconscionability, that Handy allegedly had a unilateral right to modify the agreement, was not directed to the agreement’s arbitration clause and was therefore for the arbitrator to address, not the court.

Emmanuel v. Handy Technologies, Inc., No. 20-1378 (1st Cir. Mar. 22, 2021).

No “Meeting of the Minds” Where Material Terms of Arbitration Agreement Were Changed After Party Electronically Signed Document

April 27, 2021 by Carlton Fields

This action concerned a dispute between the plaintiffs, two individual investors, and the defendants, a financial planning adviser and her firm. After the plaintiffs’ investments did not work out as they had hoped, the plaintiffs filed suit against the defendants in the Western District of North Carolina for state law contract and fraud claims.

The defendants moved to compel arbitration under the asset management agreement that the plaintiffs executed when they hired the defendants to manage their investments, which required the parties to arbitrate any dispute that may arise between the parties concerning any transaction or the construction, performance, or breach of the agreement. The defendants also moved to dismiss for lack of personal jurisdiction, to transfer venue, and to dismiss for failure to state a claim, but all motions, including the arbitration motion, were denied by the district court. Notably, the district court denied the defendants’ motion to compel, as the parties submitted different versions of the asset management agreement and therefore had not formed an agreement to arbitrate.

The Fourth Circuit affirmed the district court’s order, holding that the parties did not form an agreement to arbitrate. Calling it a “very simple contract dispute,” the circuit court relied on general principles of contract formation and found there was no “meeting of the minds,” and therefore no contract, because both parties did not agree to the same terms. The circuit court noted that the two versions of the agreement submitted to the district court differed as to a number of terms, including one that added an extra account to be managed and designated how it was to be managed. The circuit court found there was no evidence in the record to establish that the plaintiffs were ever informed of, let alone reviewed, such changes.

Because the designation of which accounts were to be managed and how they were to be managed would be of paramount importance for any couple turning over its hard-earned savings to a financial firm for management, the circuit court found that the fact that the defendants did not bother to solicit this information from the plaintiffs after they submitted the signed form through DocuSign, a commonly used online platform for signing and transmitting documents, was fatal to the formation of the contract.

The circuit court noted that while the defendants (a sophisticated certified financial professional and her firm) changing the terms of an agreement after a customer signs it does not add to the impression of fairness that one hopes to get from a financial institution managing an individual investor’s portfolio, what happened here was at best “sloppy” on the part of the defendants and precluded formation of a contract.

Rowland v. Sandy Morris Financial & Estate Planning Services LLC, No. 20-1187 (4th Cir. Apr. 7, 2021)

Employer Enforces Arbitration Despite Absence of Signature

March 22, 2021 by Brendan Gooley

An employer was able to enforce an arbitration agreement without an employee’s signature and even though one of the parties in the lawsuit was also a non-signatory to the agreement.

Elizabeth Trujillo was an employee of Volt Management Corp., an employee leasing company. Through Volt, she worked as an on-site coordinator at Schneider Electric, where she performed human resources functions for employees Volt leased to Schneider.

Trujillo sued Volt and Schneider after her request for a disability accommodation was purportedly denied and she was terminated, allegedly for retaliatory reasons.

Volt filed a motion to compel arbitration. The district court granted Volt’s motion and ordered all three parties to arbitrate Trujillo’s claims because her claims against Schneider were intertwined with her claims against Volt. Trujillo appealed and the Fifth Circuit affirmed.

The Fifth Circuit rejected Trujillo’s argument that she was not required to arbitrate because she never signed an arbitration agreement. Trujillo had submitted a job application that contained an arbitration agreement, accepted her employment knowing that she was agreeing to submit her claims to arbitration, and continued working for Volt after she received Volt’s alternate dispute resolution policy in Volt’s employee handbook. Most importantly, the arbitration agreement did “not contain express language indicating that the parties intended to be bound to the arbitration agreement only if the parties signed the agreement.” There was “nothing more than a blank signature block that [spoke] to the party’s intent” and the district court therefore “did not err in holding that the arbitration agreements are valid and enforceable … without Trujillo’s signature.”

The court also rejected Trujillo’s claims that Volt failed to prevent competent evidence to establish a valid agreement to arbitrate and that the district court erred by requiring her to arbitrate her claims against Schneider, a non-signatory to the arbitration agreement. Intertwined claims estoppel, which the court had previously predicted the Texas Supreme Court would adopt if it was presented with the question, applied because Trujillo’s claims against Schneider were “‘intimately founded in and intertwined with’ Trujillo’s underlying contract with Volt.”

Trujillo v. Volt Management Corp., No. 20-50526 (5th Cir. Feb. 25, 2021).

Massachusetts Supreme Court Holds That Uber’s Registration Process Did Not Provide Reasonable Notice of Terms and Conditions and That Arbitration Was Therefore Improper

March 3, 2021 by Brendan Gooley

The Massachusetts Supreme Judicial Court recently held that Uber’s notification of its “terms and conditions” during the registration process for its app did not provide “reasonable notice” to users of Uber’s terms, that there was therefore no valid contract between Uber and the users who were suing it, and that arbitration that had occurred had therefore been improper.

The Kauders sued Uber in Massachusetts Superior Court claiming, among other things, that it had unlawfully discriminated against Mr. Kauders on the basis of his disability because three Uber drivers refused to give him rides because he is blind and was accompanied by a guide dog.

Uber moved to compel arbitration under its terms and conditions. The court granted Uber’s motion and the parties arbitrated the case. The arbitrator ruled in favor of Uber.

Shortly thereafter, the First Circuit held, in a different case against Uber, that “Uber’s registration process did not create a contract because it did not provide reasonable notice to users of the terms and conditions” and there was “no enforceable contract requiring arbitration.”

In the Kauders litigation, Uber then moved to confirm the arbitration award. At the hearing on that motion, the Kauders raised the First Circuit’s decision and subsequently moved for reconsideration of the court’s decision compelling arbitration. The court granted that motion in light of the First Circuit’s decision and denied Uber’s motion to confirm. Uber appealed.

The Massachusetts Supreme Court agreed with the First Circuit and the Kauders that Uber’s registration process did not provide reasonable notice of its terms and conditions.

Uber argued that (1) the trial court lacked authority to deny its motion to confirm because the Kauders “failed to move to vacate the award within thirty days”; (2) the Kauders’ motion for reconsideration was untimely and improper “because there was no change in fact or law”; and (3) Uber’s registration process created a valid, enforceable contract requiring arbitration.

The Supreme Court rejected Uber’s argument about the Kauders’ failure to move to vacate the award, explaining that, unlike federal law, it “d[id] not consider participation in the arbitration process as requiring revisitation of the arbitrability issue within the thirty-day time period.”

Although the Supreme Court agreed with Uber’s argument that it was an abuse of discretion for the trial court to grant the Kauders’ motion for reconsideration, it declined to remand the case to require the trial court to confirm Uber’s arbitration award because “the issue of arbitrability would [still] be preserved for appeal” and the Kauders “would then undoubtedly appeal on that ground, and the case would be right back before” the Supreme Court.

Applying a “two-prong test” asking “whether there is reasonable notice of the terms and a reasonable manifestation of assent to those terms,” the court determined that Uber’s terms of service did not create a valid contract. When the Kauders created user accounts, a link to Uber’s “terms and conditions” was on the bottom of the third screen they saw during the registration process. The screen stated: “By creating an Uber account, you agree to the Terms & Conditions and Privacy Policy.” “Terms & Conditions and Privacy Policy” was “in a rectangular box and in boldface font,” while the rest of the sentence in question was in ordinary type. The court described Uber’s “terms and conditions” as “extensive” and conferring broad indemnity on Uber.

The court concluded that Uber’s registration process did not provide “reasonable notice” of Uber’s “terms and conditions” under the circumstances, finding it significant that (1) “the interface did not require the user to scroll through the conditions or even select them,” even though Uber required its drivers to review its terms and conditions for drivers before registering to drive; (2) the notification about the “terms and conditions” was “oddly displayed,” with the important language notifying users that they were agreeing to something “being displayed less prominently than” the phrases “terms and conditions” and “privacy policy”; (3) the placement of the “terms and conditions” notification was on the “third screen” without any prior reference to the terms; and (4) the “title of the screen” and “the information on” it focused on payment, not conditions.

In sum, “the design of the interface for the app … enable[d], if not encourage[d], users to ignore the terms and conditions” and “[n]othing about [the] third screen … conveyed to a user that he or she should open a link that would reveal an extensive set of terms and conditions at the bottom of the screen.” “Instead of requiring its users to review [its] terms and conditions as it appear[ed] to do with its drivers, Uber ha[d] designed an interface that allow[ed] the registration to be completed without reviewing or even acknowledging the terms and conditions.” Thus, Uber “failed to show that it provided the [Kauders] with reasonable notice.”

There was therefore “no enforceable agreement between Uber and the [Kauders], and therefore the dispute [in this case] was not arbitrable.” Accordingly, the court remanded the case.

Kauders v. Uber Technologies, Inc., No. SCJ-12883 (Jan. 4, 2021).

Sixth Circuit Reverses Order Finding Employment Arbitration Agreement Void Due to Coercion

January 25, 2021 by Benjamin Stearns

An employee sued her former employer and coworkers in the Eastern District of Michigan for sexual harassment, defamation, and for subjecting her to a hostile work environment. The employer argued that the employee’s claims fell within the scope of an arbitration agreement, but the district court held that the agreement was void because the employee had been coerced into signing it.

The employee argued that her boss told her that if she did not sign the agreement she would be fired. She stated that the agreement was presented to her in the middle of the workday, when she had little time due to her pressing work duties, and that her boss stood behind her and waited while she attempted to review it, ratcheting up the pressure. In addition, the plaintiff employee noted that she was a single mother with a disabled child and could not afford to lose her job.

The Sixth Circuit reversed, holding that “fear of financial ruin alone is insufficient to establish economic duress; it must also be established that the person applying the coercion acted unlawfully.” Where a party does not threaten anything that the party is not legally entitled to do, then there is no duress. Michigan is an at-will employment state, meaning that the employer’s conditioning the plaintiff’s continued employment on her signing the arbitration agreement did not amount to unlawful conduct. Therefore, the employee could not show that she was coerced into signing the agreement.

The plaintiff also argued that she did not knowingly and voluntarily waive her right to a judicial forum for her prospective claims under Title VII of the Civil Rights Act of 1964. The court applied a five-factor test to determine whether the waiver of Title VII claims was valid. The plaintiff had a high school-level education with some post-secondary education and experience reviewing and executing car sales contracts, which was held to be sufficient under the first prong. The court also found that the employee was given sufficient opportunity to review the contract, emphasizing the fact that she failed to request more time or the opportunity to consult a lawyer before signing. The court quickly dispatched the remaining factors, whether the agreement was sufficiently clear, whether sufficient consideration was provided, and the totality of the circumstances, and held that the contract was a valid waiver of the plaintiff’s right to adjudicate her Title VII claims in a judicial forum.

Solomon v. Carite Corporate LLC, No. 20-1020 (6th Cir. Nov. 23, 2020).