Uber Technologies’ clickwrap agreement is before the Massachusetts Supreme Judicial Court (SJC) for the second time in less than three years. In a 2021 decision (Kauders v. Uber Technologies, Inc.), the Court found that the rideshare company needed to revise its Terms of Use to provide reasonable notice that customers were entering into a binding contract when requesting a ride. In the case currently before the SJC, Good v. Uber Technologies, Inc., the Court will decide whether the company’s revised user agreement met the instructions outlined in the Kauders decision.
Derek Gillis, an appellate and complex litigation attorney at Barton Gilman, filed an amicus brief on behalf of the Massachusetts Defense Lawyers Association and in support of Uber. In the brief, Derek argues that clickwrap agreements like Uber’s are common and generally enforceable and that “[t]he Court should continue to apply the reasonable notice standard articulated in Kauders because actual notice and actual review of the Terms of Use are not required.”
On December 30, 2023, Massachusetts Lawyers Weekly featured the Good case in “Two-plus years after ‘Kauders,’ Uber’s clickwrap makes return trip to SJC.” Derek spoke with the publication about the amicus brief and the case and noted, “The Uber clickwrap agreement is a standard type of agreement. There is nothing particularly unique or different than most clickwrap agreements.” Derek notes that the Court’s decision will affect all contracts and all e-commerce websites, regardless of the product sold, the service offered, or the size of the business. In the amicus brief, Derek argues that holding Uber’s clickwrap agreement enforceable is consistent with the development of the law of consumer contracts and e-commerce, stating “If the Court holds that Uber’s clickwrap agreement is unenforceable, it will likely invalidate many agreements that govern everyday transactions and services.”
The SJC held oral argument in the case on January 5, 2024. Issues raised by Derek’s amicus brief were discussed during the parties’ arguments. Derek commented that “amicus briefs are a valuable tool industry groups or other interested parties can utilize to have a voice in appellate cases that will establish precedent with broad impacts. This case shows that appellate courts think deeply about these issues and that amicus briefs can play a critical role in the development of the law.”
Read Brief of Amicus Curiae Massachusetts Defense Lawyers Association.
Read “Two-plus years after ‘Kauders,’ Uber’s clickwrap makes return trip to SJC” on the Massachusetts Lawyers Weekly website (subscription required).
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