New York Changes Course?

Just before Thanksgiving, the New York Court of Appeals decided to loosen the state’s anti-arbitration position just a little bit.  It issued an opinion in the case Wu v. Uber Technologies, Inc. which held that clickwrap arbitration agreements are valid.

Prior to Wu, there was a heightened standard in New York that frowned upon such agreements.  This standard placed a heavier burden on the party asserting the arbitration agreement to prove that such an agreement validly existed.  Wu changed that to a mere preponderance of the evidence, citing the prior standard of “clear, explicit and unequivocal” to be too much. 

The court relied upon the language of the US Court of Appeals for the Second Circuit in Progressive Casualty Inc. Co. v. C.A. Reaseguradora Nacional de Venezuela, which stated “Accordingly, in determining whether the parties have agreed to arbitrate, we apply the ordinary preponderance of the evidence standard.” (citations omitted).

It stands to reason that this decision does not give carte blanche to clickwrap agreements, but it is a noteworthy shift.

To read the decision, click here.