Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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On September 25, 2024, the U.S. Court of Appeals for the First Circuit issued its decision in Toth v. Everly Well, Inc. Socially Aware spoke to Lawrence Gallick (of counsel in Morrison Foerster’s Austin office) about the case for a deeper dive into this interesting ruling.

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Lawrence W. Gallick on Toth v. Everly Well, Inc. | Socially Aware

On September 25, 2024, the U.S. Court of Appeals for the First Circuit issued its decision in <a href="https://law.justia.com/cases/federal/appellate-courts/ca1/23-1727/23-1727-2024-09-25.html" target="_blank">Toth v. Everly Well, Inc.</a> Socially Aware spoke to Lawrence Gallick (of counsel in Morrison Foerster’s Austin office) about the case for a deeper dive into this interesting ruling.SA: Can you give us a brief overview of the case details and why it caught your interest?LWG: Sure. On the surface, it’s just another run-of-the-mill clickwrap/arbitration case, but one with some interesting nuances.The defendant, Everly Well, Inc. (“Everlywell”), sells food sensitivity test kits. Joyce Toth purchased an at-home lab test on a third party retailer’s website for $119.99. Following the instructions on the box, which stated that an online account with Everlywell was required to send in her sample for testing, she created an account. During this process, she clicked a mandatory checkbox indicating that she “read and accept[ed]” Everlywell’s terms of service (she could not submit the form without checking it). When she received her food sensitivity test results back, they made no sense to her since they indicated she was sensitive to eggs, whereas she regularly and recently had eaten eggs with no trouble. Turns out that (allegedly) the test actually measured foods that had been recently eaten, instead of (as advertised) sensitivities to foods. Toth was displeased and filed a class action claim against Everlywell for deceptive marketing practices.SA: That seems pretty straightforward. Did the court address the underlying deceptive marketing claim, or was it limited to arbitration enforceability?LWG: The case is about the enforceability of the arbitration clause, not the merits of the underlying deceptive marketing claim, which are not addressed (since arbitrability is a threshold question). Following the typical fact pattern for these cases, Everlywell moved to compel arbitration pursuant to its terms of service. Toth argued that the arbitration provisions in the Everlywell terms of service were not binding on her for several reasons, including (among other challenges) lack of consideration, lack of notice and assent, and that the contract was illusory due to its unilateral modification clause. The district court didn’t find these arguments compelling and rejected her arguments, so Toth appealed.SA: Which brings us to today. What was the basis of First Circuit’s ruling?LWG: The court found that Toth had both been given reasonable notice of the terms and reasonably manifested assent to those terms. On Everlywell’s account creation page, Toth had to enter some basic information (name, email, and password), below which was a checkbox with text next to it reading “I have read and accept the Terms and Conditions,” where “Terms and Conditions” was a hyperlink displayed in green, setting it off from the rest of the black text. Underneath this verbiage was a green button with the text “Create My Account.” Relying on Massachusetts precedent, the court reasoned that, while Toth was not required to read the terms to proceed (and in fact, she attested that she did not read the terms), the requirement to click a checkbox put Toth on notice that she was entering into a contract and also was a required affirmative action, satisfying the assent requirement under Massachusetts law.SA: Sounds like they drew a sharp line between clickwrap and browsewrap terms in their discussion of Massachusetts precedent.LWG: They did. Toth’s claims that the higher standard under Massachusetts law for binding a user to arbitration applied here were rejected by the court, which noted that, among other things, the precedents cited by Toth dealt with “browsewrap” agreements, which did not require the affirmative acts I mentioned earlier.The court also rejected Toth’s claim that she did not “meaningfully” assent to the terms because she had no ability to get the benefit of the test she had already purchased without completing the registration process. As noted by the court, Toth purchased the test kit from a third-party retailer, not Everlywell, and the box clearly stated that registration and acceptance of Everlywell’s terms are required to obtain test results.SA: Did unilateral modification clauses enter into this somewhere? They seem to be a factor in many of these cases.LWG: Yes. The court rejected Toth’s claim that Everlywell’s right to unilaterally modify its terms of service made those terms an illusory contract, an interesting issue in light of <a href="https://www.sociallyawareblog.com/topics/240920-district-court-unilateral-modification-clause" target="_blank">our recent coverage of the Lovinfosse case</a> in the U.S. District Court for the Eastern District of Virginia (which is part of the Fourth Circuit, not the First Circuit as in Toth). Citing First Circuit precedent, the court in Toth noted that since the unilateral modification power was not used by Everlywell to modify the arbitration clause, the unilateral modification clause had no impact on whether arbitration was required – in fact, the court noted that this “is a subject for an arbitrator and not a court.” It is unclear whether Everlywell has since changed its unilateral modification clause (the current version, which was modified in March 2024, appears in <a href="https://www.everlywell.com/terms-of-use/" target="_blank">Section 8</a>, but it would be interesting to know if and how the court’s reasoning in Toth squares with Lovinfosse.SA: So the First Circuit and the Fourth Circuit may be at odds?LWG: It remains to be seen. Although the current Everlywell terms contain an obligation for Everlywell to “endeavor” to notify the user of “material changes” (as opposed to the clause in Lovinfosse, which didn’t require legal notice at all), the terms still purport that the changes are effective regardless of notice (as in Lovinfosse). Would the Lovinfosse court enforce the Everlywell terms? Will we ever know?SA: One last question. Which is the better album – Double Nickels on the Dime by The Minutemen, or Zen Arcade by Hüsker Dü?LWG: Please don’t ask me idiotic questions like this. It’s self-evident that they’re each watershed releases by legendary groups at the height of their power. Owning both in multiple formats is the only correct choice. Also, it’s just “Minutemen,” not “The Minutemen.” Are we done here?