Opinion
CV196083811S
09-18-2019
Arthur EDMUNDSON v. CITY OF BRIDGEPORT BOARD OF EDUCATION et al.
UNPUBLISHED OPINION
OPINION
WELCH, J.
The plaintiff, Arthur Edmundson, commenced this action by service of process on the defendants, City of Bridgeport Board of Education (Board) and Kelly Services, Inc. (Kelly Services) on February 26, 2019. The operative complaint is dated February 18, 2019, and consists of two counts sounding in negligent misrepresentation and promissory estoppel.
On May 2, 2019, Kelly Services filed a motion to compel arbitration and to stay proceedings. Kelly Services assert that Edmundson signed an arbitration agreement when he applied for employment with Kelly Services on August 17, 2018. The arbitration agreement provides that the parties "agree to use binding arbitration, instead of going to court, for any "Covered Claims," including "all common law and statutory claims relating to [plaintiff’s] employment."
On June 28, 2019, Edmundson filed an objection wherein he contends that he never consented or agreed to the arbitration provisions that Kelly Services is seeking to enforce. Further, Edmundson argues that the arbitration agreement is unconscionable since Kelly Services never told or informed Edmundson that arbitration would apply to employment disputes or that the arbitration proceedings would be conducted in accordance with the Michigan choice-of-law provision provided for in the arbitration agreement.
FACTS
Based upon the credible evidence presented, the court finds the following facts. Prior to August 2018, Kelly Services, a temporary staffing company, had contracted with the Board to provide substitute teachers to the school system. During August 2018, Kelly Services started accepting applications for the position of substitute teacher. Scott Stewart, a business analyst in the IT department at Kelly Services, offered testimony as to the application process. He explained that Kelly Services uses a web-based application for candidates who apply for work with Kelly Services, known as "e-Registration." e-Registration permits an applicant to electronically complete the application process by providing information electronically through a web browser. An applicant is provided a unique username and password to access and complete the application. Stewart described the e-Registration system in detail. He explained that throughout the e-Registration application process an applicant is unable to proceed to the next screen without completing all the required fields and checking the boxes on each individual screen.
As to the arbitration agreement, Stewart described the specific page that appears as part of the application. The page is entitled "Dispute Resolution and Mutual Agreement to Binding Arbitration" (Agreement). Directly below the title is the following: "Click the link to obtain a copy of the Dispute Resolution and Mutual Agreement to Binding Arbitration." Directly below the foregoing hyperlink, is a box to check (which is noted by an "*" indicating "required field") which affirms "I acknowledge that I have carefully read this Agreement, that I understand its terms, and that I have entered into the Agreement voluntarily and not in reliance on any promises by Kelly Services or its representatives." There are no time limitations on an applicant to review the Agreement or any other form in the e-Registration process. Further, the applicant can print out a copy of the Agreement. The e-Registration system does not allow an applicant to proceed to the next step until the applicant acknowledges that the applicant has carefully read the Agreement and understood its terms.
Additionally, Stewart described that at the end of the application process is a signature page with a listing of all the forms that an applicant has completed throughout the application process. Each form is listed individually and requires an electronic signature to each form. On the signature page, the applicant again has the opportunity to review and print each form prior to providing an electronic signature. The signature page also includes instructions to the applicant which provides, inter alia, the right to withdraw your signed consent which will stop the registration process and it will not continue until the applicant contacts a Kelly Services representative. Stewart provided that if an applicant did not sign any of the documents included in the application, the applicant would not be able to proceed or submit an application.
Further, Stewart testified that Edmundson successfully completed the application process including acknowledging that he carefully read and signed the Agreement, that he understood its terms and entered into the Agreement voluntarily and not in reliance on any promises or other representation by Kelly Services. Additionally, Edmundson also testified that he completed the application process. Edmundson explained, however, that even though he checked the box acknowledging that he carefully read the Agreement and understood its terms; he, in fact, did not review the Agreement. Further, Edmundson testified that even though he provided an electronic signature to the Agreement, he never reviewed or printed the document.
Finally, Edmundson explained that he attended an orientation session at Bridgeport City Hall wherein Kelly Services would review the documents in the application process. Edmundson however, left the orientation session early because he was not feeling well and, as a result, completed the application process at home on his personal computer.
DISCUSSION
"Whether or not the parties have agreed to arbitrate is a question of state contract law." Specht v. Netscape Communications Corp., 306 F.3d 17, 26 (2d Cir. 2002); see also, Chelsea Square Textiles, Inc. v. Bombay Dyeing & Mfg. Co., 189 F.3d 289, 295-96 (2d Cir. 1999) ("[W]hile ... the FAA preempts state law that treats arbitration agreements differently from any other contracts, it also preserves general principles of state contract law as rules of decision on whether the parties have entered into an agreement to arbitrate").
The Agreement at issue in this case includes a choice-of-law provision. The provision, however, does not determine the law that the Court should apply to determine whether the parties have entered into a valid and binding agreement. Applying the choice-of-law clause to resolve the contract formation issue would presume the applicability of a provision before its adoption by the parties has been established. See, e.g., Trans-Tec Asia v. M/V Harmony Container, 518 F.3d 1120, 1124 (9th Cir. 2008) ("[W]e cannot rely on the choice of law provision until we have decided, as a matter of law, that such a provision was a valid contractual term and was legitimately incorporated into the parties’ contract"); B-S Steel of Kansas, Inc. v. Texas Industries, Inc., 439 F.3d 653, 661 n.9 (10th Cir. 2006) (referring to "the logical flaw inherent in applying a contractual choice of law provision before determining whether the underlying contract is valid").
Under Connecticut law, the essential elements of contract formation are offer and acceptance. See Auto Glass Express, Inc. v. Hanover Insurance Co., 293 Conn. 218, 227, 975 A.2d 1266 (2009).
The court finds the analysis in Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017) and Starke v. SquareTrade, Inc., 913 F.3d 279 (2d Cir. 2019) to be relevant and instructive to the facts in this case.
"While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract ... Courts around the country have recognized that [an] electronic ‘click’ can suffice to signify the acceptance of a contract, and that [t]here is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement." (Citations omitted; internal quotation marks omitted.) Meyer v. Uber Technologies, Inc., 868 F.3d 66, 75 (2d Cir. 2017).
"With these principles in mind, one way in which we have previously distinguished web-based contracts is the manner in which the user manifests assent- namely, ‘clickwrap’ (or click-through) agreements, which require users to click an ‘I agree’ box after being presented with a list of terms and conditions of use, or ‘browsewrap’ agreements, which generally post terms and conditions on a website via a hyperlink at the bottom of the screen ... Courts routinely uphold clickwrap agreements for the principal reason that the user has affirmatively assented to the terms of agreement by clicking ‘I agree’ ... Because no affirmative action is required by the website user to agree to the terms of a contract other than his or her use of the website, the determination of the validity of the browsewrap contract depends on whether the user has actual or constructive knowledge of a website’s terms and conditions." (Citations omitted; internal quotation marks omitted.) Id.
"[T]here are infinite ways to design a website or smartphone application, and not all interfaces fit neatly into the clickwrap or browsewrap categories. Some online agreements require the user to scroll through the terms before the user can indicate his or her assent by clicking ‘I agree.’ ... Other agreements notify the user of the existence of the website’s terms of use and, instead of providing an ‘I agree’ button, advise the user that he or she is agreeing to the terms of service when registering or signing up ... [However] [c]lassification of web-based contracts alone, however, does not resolve the notice inquiry ... Insofar as it turns on the reasonableness of notice, the enforceability of a web-based agreement is clearly a fact-intensive inquiry ... Nonetheless, on a motion to compel arbitration, we may determine that an agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous and manifestation of assent unambiguous as a matter of law." Id., 75-76.
Further, "[i]n the context of web-based contracts, we look to the design and content of the relevant interface to determine if the contract terms were presented to the offeree in way that would put her on inquiry notice of such terms." Starke v. SquareTrade, Inc., 913 F.3d 279, 289 (2d Cir. 2019).
In the interface at issue in this case, the court concludes that the design of the screen and the language and notice provisions used throughout the application process and specifically with regards to the Agreement were reasonable, the screen acknowledging that the applicant read and understood the Agreement was clear and uncluttered and the text and hyperlink to the Agreement appear directly below each other without need to scroll beyond what is immediately visible. The court further finds that Edmundson unambiguously assented to the terms of the application including the Agreement. Edmundson indicated that he acknowledged reading and understanding the Agreement and then subsequently, after having a second opportunity to review and print same, electronically signed the document. "So long as the purchaser’s attention is adequately directed to a conspicuous hyperlink that is clearly identified as containing contractual terms to which the customer manifests assent by completing the transaction or retaining the product or service, a hyperlink can be an effective device for specifying contract terms. Starke v. Square Trade, Inc., supra, 913 F.3d 296.
Accordingly, the court concludes that based upon the totality of circumstances in this case, Edmundson was on sufficient notice of the terms and unambiguously manifested his assent to the Agreement. The Agreement was definite and certain as to its terms and requirements and there were no essential matters left open for further consideration. The general rule is that where a person signs or accepts a formal written contract affecting his pecuniary interests, it is that person’s duty to read it and notice of its contents will be imputed to that person if that person negligently fails to do so. Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 654 (1998).
The court will next address Edmundson’s claim that the Agreement is unconscionable. Specifically, Edmundson claims that the Agreement is unconscionable because it includes a provision that requires arbitration proceedings to apply Michigan law. "The doctrine of unconscionability, as a defense to contract enforcement, generally requires a showing that the contract was both procedurally and substantively unconscionable when made- i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party ..." (Internal quotation marks omitted.) Hirsch v. Woermer, 184 Conn.App. 583, 589-90, 195 A.3d 1182, cert. denied, 330 Conn. 938, 195 A.3d 384 (2018). In the present case, there was no evidence presented to support a claim that the choice of law provision was unreasonably favorable to one party or the other.
CONCLUSION
In conclusion, in accordance with the foregoing analysis, Kelly Services’ motion to compel arbitration and to stay the proceedings is granted.