Snap’s TOS Withstands an Unconscionability Challenge–Howard v. Snap
A Snap user connected with another Snap user, bought drugs offline from the other Snap user, and overdosed. Her estate sued Snap in Nevada for its alleged complicity in the death. Snap successfully invoked its TOS venue selection clause, sending the case from Nevada to California.
Snap’s Terms of Service are hyperlinked in blue surrounded by a gray font, the link is placed next to the “Sign Up & Accept” button, and users must affirmatively click on it to accept the Terms. That is sufficiently clear notification. Avi was an adult when she set up her latest account and consented to the Terms of Service. While the plaintiffs argue she had been preconditioned to accept the Terms of Service based on her many years of Shapchat use before turning 18, they offer no evidence or case authority to support this novel theory. Finally, the Terms of Service are akin to those of other social media sites and, given Avi’s many years of using such sites, she would reasonably expect to be bound by them
Upholding Snap’s venue selection TOS clause is a standard and expected outcome, but I’ve been mulling Snap’s decision to shift the venue. Litigating in its home court surely reduces its costs some, but this venue shift probably won’t slow down the plaintiff’s lawyers. And given how California courts keep acquiescing to arguments against social media services similar to the ones raised by this lawsuit, I could have imagined a tactical choice where Snap kept the case in Nevada with the hope that a fresh set of judges’ eyes on these arguments might produce different results.
