National Federation Of The Blind v. The Container Store, Inc.

904 F.3d 70 (1st Cir. 2018)

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Nature of the Case

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Facts

D sells storage and organization products and operates seventy stores in the United States. D offers a loyalty program, known as the POP! Program, where customers are given a card to use during their purchases to accumulate redeemable points. Membership offers customers several perks, including discount coupons and special deals. The loyalty program also gives customers additional benefits including the ability to get full refunds for purchased products without a receipt. Enrollment in the loyalty program can be done in-store or online. For in-store enrollment, customers need to use the Container Store's POS devices to enter their contact information -- specifically, phone numbers and email addresses. Customers must also register their consent to the terms and conditions of the program by checking a box that appears on the touch screen POS device indicating agreement. The terms and conditions of the loyalty program contain a mandatory arbitration and class action waiver provision, found on the fourth page, which provides the following: You agree that The Container Store and you will resolve any disputes through binding and final arbitration instead of through court proceedings. YOU HEREBY WAIVE ANY RIGHT TO A JURY TRIAL OF ANY DISPUTE YOU HAVE WITH THE CONTAINER STORE. NEITHER YOU NOR THE CONTAINER STORE MAY BRING A CLAIM AGAINST THE OTHER AS A CLASS ACTION, REPRESENTATIVE ACTION, OR PRIVATE ATTORNEY GENERAL ACTION. NEITHER YOU NOR THE CONTAINER STORE MAY ACT AS A PRIVATE ATTORNEY GENERAL OR CLASS REPRESENTATIVE, NOR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS WITH RESPECT TO ANY DISPUTE OR CLAIM BETWEEN US. These POP! Program terms evidence a transaction in interstate commerce, and thus the arbitration will be subject to the Federal Arbitration Act . . . . In the event of any dispute concerning the POP! Program or these terms, the parties unconditionally and irrevocably agree the dispute will be resolved by arbitration . . . exclusively in Dallas, Texas, in accordance with the rules of the American Arbitration Association. P initiated this suit against D because P's members allege they cannot enroll or participate in the loyalty program without having to verbally disclose their email addresses or phone numbers to the sales associate (and presumably, also to those standing nearby who can overhear) because of the Container Store's exclusive use of visual touch screen interfaces, without tactile keypads on its POS devices. P also alleges that a blind person is unable to enter their personal identification numbers (PIN) when making certain debit and credit card purchases due to the machine's inaccessibility to them. D filed a motion to compel arbitration. The district court denied D's motion to compel arbitration. It held that D did not provide Ps the 'minimal level of notice' that by enrolling in the loyalty program they were agreeing to waive their rights to pursue any future claim in court -- thus, any arbitration provision was not enforceable. It rejected the D's argument that the in-store Ps were on constructive notice of the terms. D appealed.