In a concurring opinion, M. Miller Baker, an International Trade Judge sitting by designation, delved into California law to discuss four types of internet contracts and their enforceability under California law. See 2022 WL 1010531, at *8 (Baker, J., concurring). Judge Baker based his analysis on two internet contract formation cases by the California Court of Appeal, Long v. Provide Commerce, Inc., 245 Cal. App. 4th 855, 200 Cal. Rptr. 3d 117 (2d Dist. 2016), and Sellers v. JustAnswer LLC, 73 Cal. App. 5th 444, 289 Cal. Rptr. 3d 1 (4th Dist. 2021), petition for review filed, No. S273056 (Cal. Feb. 8, 2022). The Sellers decision in turn relied upon a “scholarly opinion” by Judge Jack B. Weinstein in another internet contract case, Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 394–401 (E.D.N.Y. 2015).
“Sign-in wraps” occupy the “gray zone” in between. Id. at *14. “‘Sign-in wrap’ agreements are those in which a user signs up to use an internet product or service, and the sign-up screen states that acceptance of a separate agreement is required before the user can access the service. While a link to the separate agreement is provided, users are not required to indicate that they have read the agreement’s terms before signing up.” Id. at *12 (quoting Sellers, 289 Cal. Rptr. 3d at 15). According to Judge Baker, the “enforceability [of sign-in wraps] requires conspicuous textual notice that completing a transaction or registration signifies consent to the site’s terms and conditions. Whether such notice is sufficiently conspicuous will turn on the transactional context, the notice’s size relative to other text on the site, the notice’s proximity to the relevant button or box the user must click to complete the transaction or register for the service, and whether the notice’s hyperlinks are readily identifiable.” Id. at *14.
Categorizing the internet contract at issue as a “sign-in wrap,” Judge Baker agreed with the majority that the contract was unenforceable because (among other reasons) the website notice of contractual terms were “insufficiently conspicuous” and “confusingly placed” on the website. Id. at *15-16.