An Enforceable Browsewrap . . . or Not?

On February 12, 2024, in Patrick v. Running Warehouse LLC, the Ninth Circuit held that a defendant’s arbitration agreement contained in a website terms of use was enforceable, using the test the court articulated in 2022 in Daniel Berman v. Freedom Financial Network. The court’s analysis is straightforward and the result is about what one would expect given the facts, but the opinion goes slightly off the rails in describing the terms of use at issue as a “browsewrap” agreement. We have been critical of the generally confusing and unhelpful (but ubiquitous) “-wrap” terminology for many years, and this opinion is a good illustration of how that terminology tends to create more problems than it solves.  

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