March 2017
Presentation Matters When Seeking to Compel Arbitration in Consumer Class Actions

A pair of recent opinions proves that when it comes to compelling arbitration in a consumer class action, presentation of the arbitration clause may matter more than favorable Supreme Court precedent. First, in Norcia v. Samsung Telecommunications America, the 9th Circuit Court of Appeals affirmed a trial court decision denying Samsung’s motion to compel arbitration in a case concerning misrepresentations about the Samsung Galaxy S4 phone. Second, in Johnson v. Uber Technologies, the U.S. District Court for the Northern District of Illinois denied a motion to compel arbitration in a putative class action against the ride hailing app, Uber. In both instances, the courts declined to compel arbitration because the courts found the consumers did not form an enforceable arbitration agreement. These opinions reinforce earlier decisions, and make it clear that businesses should consider the presentation of the arbitration clause to their consumers regardless of whether the business is selling its services or products in traditional packaging or electronically.

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