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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Online service providers typically seek to mitigate risk by including arbitration clauses in their user agreements. In order for such agreements to be effective

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Sweating the Details: Court Analyzes User Interface to Uphold Online Arbitration Clause

Sweating the Details: Court Analyzes User Interface to Uphold Online Arbitration Clause | Socially Aware

Online service providers typically seek to mitigate risk by including arbitration clauses in their user agreements. In order for such agreements to be effective, however, they must be implemented properly. <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3201&context=historical" target="_blank" rel="noopener noreferrer">Babcock vs. Neutron Holdings, Inc</a>., a recent Southern District of Florida case involving a plaintiff who was injured while riding one of the defendant’s Lime e-scooters, illustrates that courts will closely scrutinize the details of how an online contract is presented to users to determine whether or not it is enforceable.As we have noted, online contracts are more likely to be enforced where (1) the terms are conspicuously displayed so that users have notice of them, and (2) users are required to take some affirmative action (e.g., checking a box or clicking a button) to indicate acceptance of the terms.In Babcock, the relevant terms were provided to users within the Lime App, a smartphone application that users must download before renting a Lime e-scooter. After downloading the app, the user is prompted to create an account. During account creation, the user is prompted to agree to Lime’s User Agreement and Terms of Service.We have often <a href="https://www.sociallyawareblog.com/2020/06/01/court-discovers-rare-and-elusive-enforceable-browsewrap/" target="_blank" rel="noopener noreferrer">expressed skepticism</a> of courts’ penchant for categorizing online contracts into one or another variety of “-wrap” contract – e.g., “browsewraps,” “clickwraps,” “scrollwraps,” “hybridwraps,” etc. In this case, after analyzing the user interface, the court characterized the Lime User Agreement as a “sign-wrap” agreement, citing <a href="https://casetext.com/case/selden-v-airbnb-inc-1" target="_blank" rel="noopener noreferrer">Selden v. Airbnb, Inc</a>. According to the Babcock court, a sign-wrap agreement exists where “a user signs up to use an internet product or service, and the sign-up screen states that ‘acceptance of a separate agreement is required before the user can access the service’.”The court spent some time analyzing the details of the Lime app’s user interface, a screenshot of which is included in the published opinion:<figure style = "float: none;;width: 185%;max-width:100%;"><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltc9f8a2a0015bd197/627319230d4d8e1d7f10f36e/limebikeuseragreement-185x300.jpg?format=auto&quality=60" alt="User agreement screencap" type="asset" asset-alt="User agreement screencap" data-sys-asset-alt="User agreement screencap" data-sys-asset-position="none" sys-style-type="download" ></figure>The court noted that:[T]he blue boldface hyperlink to the User Agreement’s terms (where the user could read the full arbitration provision) combined with the unambiguous warning that by tapping “I Agree” the user confirms that he or she “read and agreed to Lime’s User agreement,” is conspicuous enough to put a reasonably prudent smartphone user on inquiry notice of the [a]rbitration [p]rovision.According to the court, any reasonably prudent smartphone user knows that blue boldfaced text is a hyperlink. The court further states, “the large black boldface User Agreement title, the non-bold black User Agreement acknowledgement, the blue boldface User Agreement hyperlink, and the lime-green ‘I Agree’ confirmation created a user friendly display.”The court goes on to say that the assortment of contrasting colors, the use of bold versus non-bold fonts, and the empty white space contribute to a visual separation of information that makes the user clearly understand that, by tapping the “I Agree” button, he or she is agreeing to be bound by the hyperlinked user agreement.This visually clear design is repeated in the user agreement itself where the first sentence of the first paragraph is bolded and in all caps. This sentence informs the user that the terms are binding and that accessing and using the services signal agreement with the terms. The second sentence of the user agreement, which is also bolded and in all caps, informs the user of the arbitration clause and warns the user not to use the Lime service if she or he does not agree with the arbitration provision.Taken together, the court held, these features of the Lime app’s user interface and registration process resulted in a binding contract between Lime and the plaintiff. Accordingly, the plaintiff was bound by the arbitration provision contained in the Lime user agreement.The result in Babcock is not surprising and is consistent with prior cases upholding online contracts with similar implementations. But the case is a useful illustration of the fact that details matter when implementing an online contract, and that clarity of the user interface and design—including fonts, color, bolding, underlining, titles, hyperlinks, presentation of screens, etc. —may determine whether arbitration clauses and other crucial risk-mitigation provisions are enforceable against users.