Kevin Nguyen sued Barnes & Noble in 2011 after the bookseller canceled his order for two HP Touchpads. The retailer had planned to sell off the discontinued tablets in an online fire sale but oversold the items after underestimating consumer response to the heavy discounts.
Nguyen argued that he could not be bound by an arbitration provision he never saw. U.S. District Judge Josephine Staton agreed and dismissed Barnes & Noble’s request.
On Monday, a three-judge panel with the 9th Circuit in Pasadena affirmed that no valid arbitration agreement existed between the parties.
Barnes & Noble’s mistake was to use “browsewrap” rather than “click-through” agreements – which would have required Nguyen to actively agree to the terms, according to the 18-page ruling.