Long v. Provide Commerce, Inc.

245 Cal. App. 4th 855 (2016)

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Nature of the Case

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Facts

D is an online retailer that owns and operates several Web sites, including ProFlowers.com. Through ProFlowers.com, D advertises and sells a variety of floral products, which are shipped to order from the grower to the online customer. P purchased a floral arrangement, which had been depicted and advertised on the Web site as a “completed assembled product,” but which was delivered as a “do-it-yourself kit in a box requiring assembly by the recipient.” P sued D for violations of the Consumers Legal Remedies Act and unfair competition law on behalf of himself and a putative class of California consumers who purchased similarly advertised floral arrangements on ProFlowers.com. D moved to compel arbitration claiming P was bound by the Terms of Use for ProFlowers.com, including the dispute resolution provision contained therein. At the time P placed his order, the Terms of Use were available via a capitalized and underlined hyperlink titled “TERMS OF USE” located at the bottom of each Web page. The hyperlink was displayed in a light green typeface on the Web site's lime green background and was situated among 14 other capitalized and underlined hyperlinks of the same color, font, and size. P was required to input information and click through a multi-Web-page “checkout flow.” Below the dark green bar, at the bottom of each checkout flow page, were two hyperlinks titled “PRIVACY POLICY” and “TERMS OF USE,” displayed in the same light green typeface on the Web site's lime green background. After P placed his order, he was sent him an e-mail confirming the order. The e-mail, through a large amount of data regarding order confirmation, at the very bottom, displayed two hyperlinks titled “Privacy Policy” and “Terms.” Finally, the e-mail listed D's corporate address, again in the same grey typeface. P claims he “did not notice a reference of any kind to ProFlowers ‘Terms and Conditions’ nor a hyperlink to ProFlowers ‘Terms of Use’” when he purchased flowers for delivery on ProFlowers.com. P argued he was not bound by the arbitration provision because he neither had notice of nor assented to the Terms of Use. D argued that everything was sufficiently conspicuous to put P on inquiry notice as to the contents of the agreement. The trial court agreed with P, concluding the hyperlinks were too inconspicuous to put a reasonably prudent Internet consumer on inquiry notice. D appealed.