The Supreme Court of Maine has affirmed an order denying Uber’s motion to compel arbitration of claims that it and its subsidiary violated the Maine Human Rights Act. The action was filed after an Uber driver refused to drive plaintiff Patricia Sarchi, who is blind, because of her guide dog. Uber moved to compel arbitration pursuant to the terms and conditions of its user agreement. The plaintiffs (Sarchi and the Maine Human Rights Commission) argued that the manner in which the terms were presented rendered them, and the arbitration agreement, unenforceable.

Given the prevalence of online contracts, the court explained that “reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility.” Ultimately, the question is “what level of notice and assent is required in order for a court to enforce an online adhesion contract?” Looking to other jurisdictions for guidance, the court identified a two-step inquiry. The first step looks at whether the user had reasonable notice of the contract terms from the standpoint of a reasonably prudent user of online technology. Assuming reasonable notice was provided, the second step is whether the user manifested assent to the terms. Here, the court found Uber’s terms did not make it beyond step one, likening this case to others in which Uber’s terms were deemed insufficient to provide reasonable notice. As in those other cases, the court explained that the user interface here — the appearance of the hyperlink to the relevant terms, the use of muted coloring, the font size, the emphasis on payment information, among other things — rendered the terms “inconspicuous.” While that alone warranted denial of Uber’s motion to compel arbitration, the court also found Sarchi could not have manifested assent to the terms given their presentation. The court expressly rejected the notion that Sarchi became bound by the arbitration clause by clicking on a “done” button after entering her payment information.

Sarchi v. Uber Technologies, Inc., No. 2022 ME 8 (Me. Jan. 27, 2022).