Fact Issues Surrounding Assent to Mandatory Arbitration Simply By Ordering on Amazon.com Preclude Class Action Dismissal: Second Circuit

Fact Issues Surrounding Assent to Mandatory Arbitration Simply By Ordering on Amazon.com Preclude Class Action Dismissal:  Second Circuit

In a fascinating exploration of the world of contract formation through “shrinkwrap,” “clickwrap,” and “browsewrap” terms and conditions, the U.S. Court of Appeals for the Second Circuit has vacated a district court’s dismissal of a putative class action against Amazon.com, Inc. for selling diet pills containing sibutramine, a controlled substance removed from the market in October 2010.  The Second Circuit held that, in the context of Amazon’s cluttered order page, a fact issue existed as to whether the named plaintiff had assented to an arbitration provision by clicking an order button, when the legend “By placing your order, you agree to Amazon.comʹs . . . conditions of use” was not conspicuous.  The opinion also highlights the dangers of attempting to support a motion to dismiss with factual material not referenced in the complaint. [8/29/16]

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