Hines v. Overstock, Inc. United States District Court 2009 1) Facts a) Plaintiff purchased a vacuum from the defendant and returned the vacuum but was charged a $30 stocking fee b) Plaintiff stated she was told she could return vacuum with no penalty c) Overstock has a provision when one enters their website, they agree to the terms and conditions d) The terms and conditions were located on a different page 2) History a) Plaintiff brought action against defendant b) P claims that there was no assent to the agreement or a manifestation to be bound to the terms and conditions 3) Issues a) How does a browse wrap differ form a click wrap i) Holding: A browse wrap does the same assent that a click wrap creates by linking parties to a different page rather than posting in front of the party when they purchase ii) Application: A browse wrap does not require the user to manifest assent to the terms and conditions expressly… a party instead gives assent simply by the website. Without a clear and visible terms and conditions, there is no actual notice of the terms. Plaintiff had no actual notice and defendant failed to show constructive notice. b) Forum clause i) Defendant again lacks evidence or explanation how they were advised through forum selection but merely state that entering the website agreed to the terms and conditions 4) Judgment: Defendant’s motion is denied