Foster v. Walmart, Inc., No. 20-1787 (8th Cir. 2021)Annotate this Case
The court concluded, under the point-of-purchase theory, that the parties did not enter into a binding arbitration agreement at the moment plaintiffs purchased their gift cards because Walmart did not state that it wished to have the arbitration agreement bind the parties at the moment of purchase. Rather, the arbitration provision states that a customer accepts arbitration only by using or accessing the Walmart Sites. While the parties do not dispute that this case involves a browsewrap agreement, the court concluded that material disputes of fact exists on the question of whether the parties agreed to arbitration. The court explained that material disputes exist regarding whether plaintiffs used the website, whether the design of the website was sufficient to give a reasonable browser notice of the arbitration, and whether the language on the card was sufficient to put the buyer on notice. Accordingly, the court remanded for further proceedings.