A Web site can’t enforce a ‘browsewrap’ agreement on a customer u...

customer Cynthia Hines’ challenge to the discount e-tailer’s assessment of a “restocking fee” on a purchase she returned. Hines said she wasn’t notified that by visiting Overstock.com she accepted its terms and conditions, including the fee, linked from the bottom of its Web pages. Overstock filed a motion to dismiss or stay for arbitration, or alternatively move the case to Utah, based on a forum-selection provision in the terms. But Johnson said the link to the company’s terms wasn’t enough to make them binding on Hines. Overstock failed to show a “meeting of the minds” with Hines through its browsewrap agreement, which unlike a clickwrap agreement doesn’t require a user to click an “I agree” box, Johnson said. Precedent from the 2nd U.S. Circuit Court of Appeals, whose territory includes Brooklyn, provides that Web sites can’t enforce terms on visitors, even when they make a purchase, if they aren’t given “constructive notice” of terms, the ruling said. Scrolling to the bottom of the screen wasn’t necessary for Hines to make her purchase, and the site didn’t provide a landing-page warning that visitors accepted its terms by clicking through, Johnson said. “Very little is required to form a contract nowadays -- but this alone does not suffice.” He declined to transfer the case to Utah, citing the buried terms and conditions. Since Hines lives in the court’s jurisdiction, and Overstock is an e- commerce company, it can’t claim a hardship from having to litigate in Brooklyn, Johnson said. “Most if not all of the documents” to be produced in discovery “will be readily available electronically.”