Can Just Sending an Emoji form a Contract?

Can Just Sending an Emoji form a Contract?

Contracts, E-Commerce, Negotiation
Can texting an emoji actually bind you to an enforceable contract? As a commercial seller of flax who sent a responsive emoji to a customer discovered in a Canadian court, the answer is Yes. Worse yet, his single "thumbs up" emoji ended up costing his firm nearly roughly (USD) $100,000. In this blog post, we take a look at the case that made the rounds on the news and social media and what lessons it may have for those of you who here south of the border in the U.S. who might be tempted to send that thumbs up to your business customers, partners, vendors and suppliers. The "Thumbs Up" Emoji Case In the case of South West Terminal Ltd. v. Achter Land, 2023 SKKB 116 (CanLII) (June 8, 2023),…
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Sponsor Seeks to Cancel Deal with NFL’s Jaguars in Clownish Lawsuit

Sponsor Seeks to Cancel Deal with NFL’s Jaguars in Clownish Lawsuit

Contracts, Sports
Are you ready for some frivolous litigation?? “Are you ready for some frivolous litigation??" A Georgia-based, roof replacement company apparently is, and its Complaint filed earlier this month against the NFL's Jacksonville Jaguars in the Fourth Judicial Circuit in Florida offers lessons for both companies thinking about sponsorship deals with their local professional sports teams, as well as the franchises or team organizations themselves. The JJSA According to RoofClaim.com's complaint, the Jags had tried to get RoofClaim as a team sponsor in the past, to which RoofClaim had apparently responded with something along the lines of "thanks but no thanks". Things turned, however, with the Defendant's splashy hiring of celebrated former Florida and Ohio State college coach Urban Meyer this past Summer. The hiring apparently had enough sizzle to convince…
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9th Cir. Gives No Credit to Claim that Experian’s Updated Site Terms Apply

9th Cir. Gives No Credit to Claim that Experian’s Updated Site Terms Apply

Contracts, Online Agreements, Terms of Service
A recent Ninth Circuit Court of Appeals decision involving mega credit reporting company Experian reminds us that online businesses should be careful of relying on unilateral "change-of-terms" clauses in their online terms of use/service/and conditions. Stover Background In Stover v. Experian Holdings, Inc. (No. 19-55204, 9th Cir. 2020), Stover purchased an "Experian Credit Score" service from the credit reporting firm back in 2014. In doing so, she was required to accept Experian’s terms and conditions, which contained a number of provisions in which she agreed to waive her right to be part of a class action and to arbitrate all disputes “to the fullest extent permitted by law”. Under these 2014 terms, Stover further agreed that each time she accessed the "Product Website", she would be manifesting assent to the…
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Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Southwest’s Efforts to Enforce Browsewrap Terms Isn’t Peanuts

Contracts, E-Commerce, Terms of Service
Remember these...? Last month, Southwest Airlines Co. (“Southwest”) filed a complaint in a Federal court in Texas (where the discount fare airline is based) against Kiwi.com, an online travel site. While the lawsuit revolves around Kiwi’s scraping of airfare data from Southwest’s website, as well as violation of the Computer Fraud and Abuse Act (CFAA), it offers some valuable lessons to e-commerce and online businesses relying on “browsewrap” terms for their website. Case Background In the Complaint filed in Southwest Airlines Co. v. Kiwi.com, Inc., No. 21-00098 (N.D. Tex. filed Jan. 14, 2021), Southwest accuses Kiwi of scraping of the airline’s flight and pricing data off of its website and selling Southwest tickets through its own platform (apparently charging service fees on top). Southwest, in its breach of contract count,…
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Does My Website App Need A Separate Cookie Policy, Too?

Does My Website App Need A Separate Cookie Policy, Too?

CCPA, Contracts, GDPR, Privacy, Terms of Service
Perfect Chocolate Chip Cookies by Kimberly Vardeman Creative Commons Attribution 2.0 Generic (image cropped) I’m often asked by potential (and even existing) clients whether their company's website or app needs an actual, separate Cookie Policy, or whether it’s sufficient to address Cookies in their privacy policy or statement alone? In this post, we explore what the Cookie Policy is, the main laws that are currently applicable, and the legal and practical considerations of separating your Cookie Policy from your Privacy Policy (which you, of course, already have right?). What are Cookies anyway? [Experienced website owners and developers may want to skip ahead] To step back a bit, “cookies” are small text files that store data on your device your computer, smartphone, or other device, which are sent to a specific…
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