D advertised a 'fire sale' of Touchpads at a heavily discounted price. Nguyen (P) purchased two units on D's website on August 21, 2011, and received an email confirming the transaction. The following day, P received another email informing him that his order had been canceled due to unexpectedly high demand. P sued D on behalf of himself and a putative class of consumers whose Touchpad orders had been canceled. P claimed D engaged in false advertising and deceptive business practices. D removed the action to federal court and moved to compel arbitration under the FAA. D argued that P was bound by the arbitration agreement in the website's Terms of Use. Those terms were available via a 'Terms of Use' hyperlink located in the bottom left-hand corner of every page on the website, which appears alongside other hyperlinks labeled 'NOOK Store Terms,' 'Copyright,' and 'Privacy Policy.' These hyperlinks also appear underlined and set in green typeface in the lower left-hand corner of every page in the online checkout process. P never clicked on any of those hyperlinks. P contends he neither had notice of nor assented to the website's Terms of Use and further was not put on constructive notice of the arbitration agreement. The court agreed with P and denied D’s motion to compel arbitration. D appealed.

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