Discussion Question: [Click Wrap and Shrink Wrap Agreements]

After weeks of unrelenting pressure from my son, I finally give in and purchase the latest Pokemon game for my home computer. I return from the store, and hurriedly remove the plastic wrap from the outside of the package, rip open the box, and load the software onto my computer, tossing the box into the trash. Written on the outside of the box there is an "agreement" which provides that by opening the box and installing the software, I agree to waive certain warranties, and further agree that if any dispute arises between the consumer and the manufacturer, the dispute will be heard by the American Arbitration Association. The "agreement" further provides that I have seven days to return the software for a full refund if I do not agree to be bound.

Weeks later, the software malfunctions, corrupting my hard drive, wiping out its contents, including the only copy of an article I am about to submit for publication. If the article is not submitted for publication, I will be denied tenure. I bring suit in state court against the game's manufacturer alleging that it breached the implied warranty of merchantability and that it was negligent.

In response, the manufacturer moves to:

[1] Dismiss my warranty claim based waiver, and [2] Transfer my remaining claims to arbitration as provided for in the agreement.

In response to the manufacturer's motion to dismiss, I argue that I am not bound by the agreement since:

[1] I was not aware of its contents, or, in the alternative, [2] Even if I was aware of its contents, the contract is not enforceable, since it was presented to me without the ability to negotiate [an adhesion contract].

Referring to PROCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); A. Mortenson Co., Inc. v. Timberline Software Corp., 970 P.2d 803 (1999); Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997) and Brower v. Gateway 2000, --- A.D.2d---, 676 N.Y.S.2d 569 [linked in the lecture]:

[1] Who wins and why? Please set out the arguments by plaintiff and defendant before reaching your conclusion.