We know that under the “shrink-wrap doctrine,” the manufacturer of software can place language on the outside of its package stating that by opening the shrink-wrap around the DVD or CD-ROM that contains the software, the user agrees to the terms of a license, which may be inside the packaging, on the wide world web or elsewhere. That’s Wall Data Inc. v. L.A. Cty. Sheriff’s Dep’t, 447 F.3d 769, 782 (9th Cir. 2006). And we also know that when a manufacturer puts provides a warranty in a use and care guide, which the buyer doesn’t see until she has bought the product, taken it home opened the package and put the product to use, if those things happen at all, the warranty is enforceable against the manufacturer. Weinstat v. Dentsply International Inc., 180 Cal. App. 4th 1213 (2010).
So how about when the manufacturer, or distributor, or seller puts a provision that reduces consumer rights in the box, in a manual, such as, say, a binding arbitration provision? That was the issue in Norcia v. Samsung Telecomm ___ F.4th___ (9th Cir. 2017) decided just a few days ago.
Norcia bought a cell phone and a plan at a Samsung Galaxy GS4 phone at a Verizon store (Fortunately, it wasn’t a Note 7). He sued Verizon, and Verizon moved to compel contractual arbitration.
At the store, Norcia had signed a “Customer Agreement” with the following provisions:.
I agree to the current Verizon Wireless Customer Agreement, including the calling plan, (with extended limited warranty/service contract, if applicable), and other terms and conditions for services and selected features I have agreed to purchase as reflected on the receipt, and which have been presented to me by the sales representative and which I had the opportunity to review.