Arbitration - All in the Wrapping

In 2000, Congress embraced “electronic” contracting by enacting the federal Electronic Signatures in Global and National Commerce (“ESIGN”) Act, 15 U.S.C. § 700. It noted that “a signature, contract, or other record relating to such [electronic] transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”1 ESIGN includes not just contracts with electronic signatures, but also contracts formed when a consumer manifests assent via “clickwrap” or “browse-wrap”2 (collectively, “Wrap Agreements”). Definitions in this arena are still not entirely clear, but generally, “clip-wrap” agreements include consumers “agreeing” to a vendor’s terms and conditions (“TAC”) by clicking on an electronic “accept” dialog box or popup window. “Browse-wrap” agreements typically refer to a more passive approach with language advising that by continuing to use a service or by proceeding from a home page to a subsequent page, the customer is assenting to a seller’s TAC.

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