Moretti v. Hertz: Why proof of clickwrap acceptance is crucial

Jan 2, 2015 8:08:58 PM

While clickwrap agreements have been widely held to be enforceable by many courts, a new burden of proof has emerged requiring companies to provide proof of acceptance.

Generally, a clickwrap agreement has website users click a box that states “I Accept” when agreeing to a website’s terms and conditions. In the present case, Moretti v. Hertz, the Plaintiff reserved a Hertz rental car from a Hotwire website. Before completing the reservation on Hotwire, Plaintiff was required to accept Hotwire’s Terms of Use. Plaintiff claimed that he was quoted one price and was later charged nearly double the quoted price after returning the vehicle to Hertz. Plaintiff filed suit in California, but Hertz wanted to enforce a forum-selection clause to transfer the case to Delaware. The primary issues for the court to determine include whether the Plaintiff agreed to a forum-selection clause in the clickwrap agreement and if Hotwire has met its burden of proof that Plaintiff agreed to the forum-selection clause contained in the Terms of Use.

The Plaintiff did not dispute that he used the Hotwire website to book his car rental, but argues that the Defendants did not meet their burden of proof demonstrating that Plaintiff agreed to the forum-selection clause contained in the Terms of Use. Plaintiff specifically argues that Hotwire may have made false representations in the Terms of Use and that the hyperlink was possibly malfunctioning at the time of Plaintiff’s purchase. Hotwire produced two declarations that affirmatively stated that the Terms of Use in operation on the date of Plaintiff’s use contained a forum-selection clause. Additionally, Hotwire declared that an individual using the website cannot complete a booking without checking the “Acceptance Box” acknowledging the acceptance of Hotwire’s Terms of Use.

The Plaintiff confirmed that he completed his booking through the Hotwire website, which indicated that Plaintiff had checked the Acceptance Box and therefore acknowledged accepting the Terms of Use and Hotwire’s rules. The Court concluded that “in the absence of an affirmative denial from the Plaintiff that he did not in fact check the Acceptance Box in addition to the clear evidence that the Plaintiff could have not otherwise completed his car reservation.” Therefore, the Court determined that the Plaintiff had notice and consented to the Terms of Use containing the forum-selection clause. This case, along with Tompkins v. 23ANDME, have started to shed some light on the evidence courts are requiring to uphold clickwrap agreements as enforceable when disputed in court.

The takeaway - A clickwrap agreement is only as good as your ability to prove that a particular user accepted a particular version of the agreement on a particular date.

Brian Powers

Written by Brian Powers

PactSafe CEO & Founder