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June 9, 2021

Georgia Examines Enforceability of Arbitration Agreements in Smartphone Apps

The more factors met regarding how easy it is to see and read an app’s terms and conditions, the less risk that a hyperlinked arbitration clause will be found unenforceable.

By Jake Carroll

ABA's Practice Points

Published in Section of Litigation-Alternative Dispute Resolution Practice Point, June 9, 2021 © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 

In Thornton v. Uber Technologies, Inc., the Georgia Court of Appeals addressed an issue of first impression when it joined courts across the country to evaluate the enforceability of online and app contracts, and the arbitration agreements within them.

The fact-pattern is familiar to anyone with a smartphone: Thornton signed up for Uber’s rideshare app on his Android. He followed a set of screens to set up his account and ultimately entered his payment information on the final registration screen: either a credit card or PayPal. Near the bottom of the registration screen was a hyperlink to Uber’s Terms and Conditions, which included an arbitration agreement. Thornton presented evidence however, that when he started to enter his credit card information, the keyboard covered the hyperlink to the terms and conditions. Thornton completed his registration in May 2016 and began using Uber’s services.