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Second paragraph:

> U.S. District Judge Jed Rakoff in Manhattan said Friday that Uber’s online user agreement didn’t provide Spencer Meyer with sufficient notice of its arbitration policy for it to be binding.

Assumed this meant that if they'd told him a bit further in advance (e.g. 30 days, etc), it'd be fine, but no. Further down the page:

>In the New York case, Rakoff said that Meyer registered with Uber in October 2014 using a Samsung smartphone. The registration form included the words "By creating an Uber account, you agree to the Terms of Service & Privacy Policy," according to the judge.

> The form didn’t require users to click on the "Terms of Service & Privacy Policy" to register. Users who clicked on the link were taken to “nine pages of highly legalistic language that no ordinary consumer could be expected to understand,” Rakoff said. The arbitration clause, which includes a waiver of the right to sue in court, was at the bottom of Page 7, he said.

> Rakoff ruled the registration process didn’t provide sufficient notice to Meyer that he was waiving his right to have his claim heard by a jury in court.

Which seems a lot more interesting.

I'm pleased by the ruling that throwing pages of legal jargon at a layman doesn't constitute sufficient notice. Seriously even if I read every T&C I agreed to I'd likely have difficulty fully understanding it, and I like to think I'm not completely stupid.

Doesn't this imply that most EULAs and TOS agreements are largely unenforceable? They're all done this way.

I can't speak for anyone else, but I know when we've talked to real lawyers about T&Cs for online B2C services (based in England) their view was similar to the judge's comments in this case. In short, if your terms are fair and reasonable then it's a binding agreement and it is likely to be upheld by a court in the event of a dispute. However, if you have an unusual or potentially surprising term then it is more likely to stand up if it's prominently disclosed near the start of the terms, and less likely to stand up if it's buried deep inside. For example, in the terms for a service that was doing something new with a certain technology, we included a short but realistic note about certain known limitations of that technology prominently and early. As an aside, the same legal advice recommended writing in plain English rather than legalese as much as possible.

This is the norm in the EU. Surprising clauses or those that put the customer at a disadvantage are void, and there is lots of leeway for a judge to put clauses in either of these buckets.

Yeah they basically optimize for it. No matter how well-designed the rest of the site is, the TOS will be in some nearly unusable format in an ugly font and capital letters. It's like they all hired lawyers who told them, "well, that's technically informing them, right?"

Yeah, this is a relatively unusual decision to find that a user agreement did not give enough notice of an arbitration clause.

Well, a contract is a "meeting of the minds", and the situation becomes quite interesting when one of those "minds" (as in this case) has (almost certain) knowledge that the other party has not read the "user agreement"...

Actually it's pretty normal. Existing cases have found that the phrasing and website design matters significantly.

See for example:




Agreed. This is likely the judge "protesting" what he believes to be unjust law, even though he knows his decision will likely be overturned on appeal. EULAs and forced arbitration provisions have been upheld many times.

And just to follow up, "protesting" isn't really the right word. A lot of times district court judges will write opinions supporting minority positions in the law in an attempt to influence higher judges and to provide a "template" legal reasoning for higher judges should they want to overturn precedent.

There's already precedent, but "activist judges"

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