Ninth Circuit: Users Would 'Need Sherlock Holmes' Instincts' to Find Casino App's User Terms
"Only curiosity or dumb luck might bring a user to discover the Terms," wrote Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit.
December 20, 2019 at 05:38 PM
3 minute read
Huuuge Casino Slots – Play Free Vegas Slots Games icon in the list of mobile apps. Photo: Sharaf Maksumov/Shutterstock.com
The U.S Court of Appeals for the Ninth Circuit on Friday held that the company behind the Huuuge Casino smartphone application had not put users on notice about the app's terms and conditions, which contained an arbitration agreement.
The court's ruling upheld a lower court decision denying HUUUGE Inc.'s motion to compel arbitration in the case, which was brought on behalf of a user claiming the company violated Washington state gambling and consumer protection laws by charging users for chips within the app.
In an opinion addressing an issue of first impression for the court, Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit wrote that the company couldn't establish that continued use of the casino app put users on "constructive notice" of the terms of use. The company, she wrote, doesn't require users to affirmatively acknowledge or agree to the terms before downloading or using the app. McKeown wrote that users would "need Sherlock Holmes' instincts to discover the terms."
The app's profile page in smartphone app stores contains a web address for the terms and conditions, but no direct hyperlink. "This is the equivalent to admonishing a child to 'please eat your peas' only to then hide the peas," McKeown wrote. "A reasonably prudent user cannot be expected to scrutinize the app's profile page with a fine-tooth comb for the terms."
McKeown further noted that within the game itself the terms are tucked away in a drop-down menu accessible via three white dots "tucked away in the corner and obscured amongst the brightly colored casino games."
"Nothing points the user to the settings tab and nowhere does the user encounter a click box or other notification before proceeding," the judge wrote. "Only curiosity or dumb luck might bring a user to discover the Terms."
The company is represented by counsel from Davis Wright Tremaine. Partner Jaime Drozd Allen, who argued the appeal, didn't immediately respond to messages Friday.
The plaintiff, Sean Wilson, who filed on behalf of a class of app users, is represented by counsel from Edelson PC. Edelson's Roger Perlstadt, who argued the appeal for Wilson, hadn't responded to a message a press time.
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