William & Mary Business Law Review


Michelle Dunbar


Two recent decisions regarding the validity of arbitration agreements in mobile apps have come to opposite conclusions despite utilizing the same legal standard and concerning the same app—Uber. While the Federal Arbitration Act strongly favors the validity and importance of arbitration agreements, it appears that judge’s subjectivity based on common knowledge and understanding of apps is influencing the outcome of cases concerning the validity of these arbitration agreements. To the modern app user, are these terms really inconspicuous? For businesses, this could mean that instead of competing in an already saturated app market by enhancing their design and integrating branding into their mobile app’s user interface, they may have to concern themselves more with compromising their branding strategy to comply with a legal standard that demands the terms to be the most conspicuous standard to include the common knowledge and understanding of app users into the perspective of the reasonable app users that courts use to analyze the conspicuousness of terms. By encompassing this heightened knowledge, reasonable access to terms, rather than the level of conspicuousness of terms, should suffice for putting a user on inquiry notice. Such a standard allowing for reasonable access should both accurately reflect the current knowledge and allow for further item to the user. This Note proposes a potential redefined advancements in the understanding of mobile technology.