Parler Lacks Evidence That Plaintiff Agreed to Vegas Venue: Response

Parler’s entire argument behind its motion to transfer plaintiff Catherine Migliano’s Telephone Consumer Protection Act complaint to the U.S. District Court for Nevada (see 2211180050) “hinges on the conclusory premise” that Migliano agreed to “a purported forum selection clause” in the terms of service on the Parler website, said Migliano’s response in opposition Friday (docket 0:22-cv-61805) in U.S. District Court for Southern Florida in Fort Lauderdale.

Migliano alleges the right-leaning social media platform inundated her with telemarketing text messages promoting the sale of Donald Trump non-fungible tokens in violation of the TCPA (see 2210280002). Parler responded with motions to dismiss the case for failure to state a claim and to compel the dispute to arbitration, in addition to trying to move the case to Las Vegas.

Parler “submits no evidence to support its contention” that Migliano “entered into a binding agreement containing a forum selection provision,” said Migliano’s opposition response. Parler submitted two affidavits purporting to support its contention, “without any further explanation or screenshots of the website presenting the terms of service,” it said. Instead of showing the actual screenshots so the court could determine whether Migliano had knowledge of the terms and had agreed to them, Parler asks the court “to take its conclusory word for it,” it said.

The “proper analysis to determine whether an online agreement is formed” between plaintiff and defendant is “fact specific,” said Migliano’s response. “Courts generally review factors such as the language, font size, and placement of hyperlinks to determine whether website language creates a browsewrap agreement,” it said.

In a “thorough and well-reasoned opinion" discussing Florida law on the formation of online contracts, the court in the 2020 opinion in Goldstein v. Fandango Media said Fandango’s online binding of customers to resolve disputes through arbitration was “deficient because of its placement on the webpage” and because the notice failed to alert the user of the arbitration agreement, said Migliano’s response. The court reasoned the “inconspicuous appearance” and poor placement of Fandango's notice “negates its purportedly intended purpose,” it said.

Lacking any evidence on how Parler’s terms of service were presented to Migliano and allegedly accepted by her, the court “has no ability to conduct the necessary analysis to determine” whether she “assented” to those terms, said the response. The court can't even consider whether the terms were presented as a “browsewrap or clickwrap agreement,” it said. The former is when a website provides a link to the terms and conditions without requiring the purchaser to click an acknowledgment during the checkout process. The latter is when a website directs a purchaser to the terms and conditions of the sale and requires the purchaser to click a box to acknowledge having read those terms and conditions.

The court is “completely deprived of any facts to determine whether a reasonably prudent consumer would have been placed on inquiry notice” of Parler’s forum selection clause,” said the response. Parler “offers nothing to satisfy its burden of demonstrating the existence of a contract by a preponderance of the evidence,” it said. The court therefore “should summarily deny” the motion as other courts have done “when faced with similarly deficient motions,” it said.