In July 2023, an intermediate appellate court in Pennsylvania decided Chilutti v. Uber Technologies. There, the court held that a so-called “browsewrap” arbitration agreement was invalid, and that two conditions are necessary to establish an unambiguous manifestation for assent to arbitration via a registration for a website:
(1) explicitly stating on the registration websites and application screens that a consumer is waiving a right to a jury trial when they agree to the company’s “terms and conditions,” and the registration process cannot be completed until the consumer is fully informed of that waiver; and
(2) when the agreements are available for viewing after a user has clicked on the hyperlink, the waiver should not be hidden in the “terms and conditions” provision but should appear at the top of the first page in bold, capitalized text.
Last week, the Pennsylvania Supreme Court agreed to review the decision.
The three questions presented by the petition for review are:
(1) Does the Superior Court’s new special-notice rule for enforcing online arbitration agreements violate the [Federal Arbitration Act], as interpreted and applied by the Supreme Court of the United States?
(2) As a matter of Pennsylvania law, should online arbitration agreements be enforced under the same rules applicable to contracts generally?
(3) Does the Superior Court lack appellate jurisdiction to immediately review interlocutory orders staying litigation pending arbitration?
