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

9th Cir. Gives No Credit to User’s Claim that Experian 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…
Read More
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,…
Read More
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…
Read More
Who Can Sign for My Company?

Who Can Sign for My Company?

Contracts, Negotiation
Laptop Office Handwriting by Aymanejed via Pixabay While many business owners and those doing business with them often take it on faith that their signature is the (or the only) one that's required, but who is actually allowed to sign for or on behalf of a company? Before I launch in, as a Phoenix startup attorney, I am aware that it is not always practical to ask for or obtain, say, an LLC’s operating agreement and, frankly, there are probably more “partnerships” that do not have a formal, written partnership agreement than do. Also, if your agreement with, for example, a corporation is for some negligible amount, it probably isn’t worth it for you or your business to bother. This post is more directed for those of you business owners,…
Read More
Do You Even Refund, Bro? LA Fitness Case Offers Lessons on COVID-19 Customer Claims

Do You Even Refund, Bro? LA Fitness Case Offers Lessons on COVID-19 Customer Claims

Arbitration, Contracts, COVID-19, Terms of Service
Image by lewisgoodphotos from Pixabay A recent trial court decision in (yet) another COVID-19 customer refund case provides some key lessons to businesses facing customer lawsuits due to the novel coronavirus pandemic that continues to affect our country. This past March, on local and state authorities’ orders to help reduce transmission and incidents of COVID-19, popular health club LA Fitness was one of many businesses forced to close their doors, resulting in a ton of P.O.'d gym members who were now out their membership and training fees and, as often is the case in this country, a class action lawsuit filed. The LA Fitness case Earlier this month, in Barnett v. Fitness International, LLC, No. 20-cv-60658 (S.D. Fla. Mar. 30, 2020), a federal judge ruled that a gym member did…
Read More