In a victory for American consumers, the U.S. Court of Appeals for the Seventh Circuit recently held that a credit reporting agency could not enforce an arbitration agreement concealed deep in a lengthy service agreement on its website. The case started when Gary Sgouros sued TransUnion in 2014 after the credit reporting company provided him with a credit report that reported his credit score as much higher than the score lenders saw when he attempted to finance a vehicle purchase. TransUnion responded to Sgouros’ lawsuit by filing a motion to compel arbitration pursuant to the service agreement on its website.
When buying a credit report from TransUnion, Sgouros clicked on an “I Agree” button below a purchase agreement containing the arbitration clause in a scrollable text box and a PDF copy of the agreement. While TransUnion alerted consumers to some possible legal effects of clicking “I Agree,” it was unclear that clicking on the “I Agree” button signified assent to the arbitration terms.
The arbitration clause in this case was buried at the end of a lengthy 10-page scrollable text box. In holding for Sgouros, the court indicated a number of facts that made the scrollable text box deceptive, including:
- TransUnion’s website did not bring the purchaser’s attention to the arbitration clause,
- The arbitration clause was not visible in the window and the website did not require users to scroll to the bottom of the window or click on the scroll box,
- During the purchase process, it was unclear that the purchase was subject to important terms and conditions,
In Sgouros v. TransUnion, the Seventh Circuit ruled that businesses cannot force aggrieved consumers to forego court and submit their claims to private arbitrators chosen by businesses. For an arbitration agreement to be legally enforceable, there has to be some proof that the consumer actually agreed or had the opportunity to agree to the terms. Basically, don’t trick your customer into giving up their legal rights without providing reasonable notice or your contract won’t be worth the ink or pixels it’s printed on.