Enforcing existing arbitration provisions has always been a bore. Now that Terms and Conditions have been moved to consumer's mobile devices, there are new requirements to consider if you actually want to take
advantage of your arbitration provision.
New decision by the First Circuit in Cullinane v. Uber Technologies, Inc., 893 F.3d 53 (2018) found that Uber's link to its terms of service did not stand out enough, which means the arbitration clause was not enforceable. Ouch.
You should consider the following rules to follow to make sure you actually can enforce your arbitration provision:
The entire screen containing links should be visible at once.
The screen should be “uncluttered,” with only the link, “Register” button and payment fields.
The screen should only have two font colors, no other links and no advertisements.
The link should appear “directly below” the “Register” button.
The link should be bright, blue, underlined and capitalized.
The text used to notify users that creation of an Uber account would bind them to the linked terms was displayed in dark contrasting text.
