A California State Appeals Court followed a Second Circuit Federal Appeals Court and a Ninth Circuit Federal Appeals Court decision in declaring that a browse-wrap contract for website selling goods did not establish a contractual obligation to arbitrate disputes. Long v. Provide Commerce, Inc., Case No. B257910 (Ca. App. 2d, March 17, 2016) (Available Here). Although the California State Appeals Court mentioned that the floral arrangement sold at the e-commerce website by defendant Provide Commerce (“Provide”), the reference to the consumer-based relationship was not the prime focus of the appellate court decision. Therefore, this case reasonably establishes that browser wrap agreements are not effective for many, if not all, e-commerce websites. See also Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014); and Specht v. Netscape Communs. Corp., 306 F.3d 17, 30 (2d Cir. 2002).
The California State Appeals Court noted that no other California appellate court addressed what sort of website design elements were necessary “to deem a browse-wrap agreement valid in the absence of actual notice” to the user of the site.
Lastly, the Appeals Court indicated that, with respect to this consumer contract, “given the breath of the range of technological savvy of online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they have no reason to suspect they will be bound.” See Nguyen. In conclusion, the Appeals Court refused to enforce the arbitration provisions of the browse-wrap agreement.