Brett Frischmann Amicus Brief in Chilutti v. Uber

We posted about the decision of a panel of Pennsylvania’s Superior Court in Chilutti v. Uber back in 2023. The decision was striking because it struck down Uber’s terms of service, including an arbitration clause as providing insufficient notice to the plaintiffs. Significantly, the court found that the imposition of arbitration without notice deprived plaintiffs of their right under the Pennsylvania constitution to a jury trial. To the surprise of absolutely nobody, Uber appealed.

The case is currently pending before the Supreme Court of Pennsylvania. Brett Frischmann (left) of Villanova University’s Charles Widger School of law  has filed an amicus brief. The brief provides a nice summary of Professor Frischmann’s scholarship, involving multiple co-authors with different disciplinary expertise. I learned a lot from reviewing it, so now I will share a tl;dr, but the brief is not tl, so you should r.

The argument is a simple one. Currently, courts enforce digital contracts based on notice and assent where assent is manifested through conduct, whether clicking a box or continuing to use the product. Notice and assent should not be a basis for enforcement because we all know that the typical user is unfamiliar with the terms of digital contracts. As a result Professor Frischmann regards notice and assent as a farce, calling it “it ignorance at scale.” He urges the court to adopt a standard of “demonstrably informed consent as the foundation of an enforceable digital contract.”

Anticipating the standard efficiency-based counterargument, Professor Frishmann insists that companies have the technological wherewithal to design digital contractual interfaces that provide better evidence of actual agreement than the notice and consent system provides. This argument is consistent with the Federal Arbitration Act (FAA), which requires that the party seeking to arbitrate establish an agreement to arbitrate. The question of agreement is a matter of state law, and so he urges Pennsylvania to adopt a more stringent test for evidence of an enforceable agreement.

It will be interesting to see what the Supreme Court of Pennsylvania does with the case. Let us hope that Professor Frischmann is able to persuade them that before a person is deemed to have waived  the constitutional right to a jury trial, they ought to give informed consent to that waiver.