The importance of making online and mobile app terms clear and conspicuous to users was reinforced by the recent federal appeals court decision in Cullinane v. Uber Technologies, Inc. The plaintiffs filed a proposed class action in Massachusetts state court alleging that Uber had violated a consumer protection law by inflating its fees around Logan International Airport. Uber removed the case to federal court, then filed a motion to compel arbitration based on a clause in its terms of service. The trial court granted Uber’s motion and dismissed the case and the plaintiffs appealed to the First Circuit.
The court of appeals examined the screenshots of Uber’s terms of service to determine whether the terms were conspicuous or “written, displayed or presented [so] that a reasonable person . . . should have noticed it.” The court noted that Uber chose not to use the common method of “requiring users to click a box stating that they agree to a set of terms, often provided by a hyperlink, before continuing to the next screen . . .[i]nstead rely[ing] on simply displaying a notice of deemed acquiescence and a link to the terms.” Further noting that the hyperlink was presented in white bold text in a gray rectangular box, the court found it was not conspicuous. The court reversed the dismissal and reinstated the case.
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