Alex Quintero

Specht v. Netscape Communications (2002)

11/16/16
Issue 2- Whether This Court Should Remand for a Trial on Contract Formation

In my opinion I dont think the court should remand for a trial on the grounds of contract

formation. I believe this because there was no clear offer or a clear acceptance, it was all not

clear because the terms and conditions werent required to check a box if they read them or not

and they werent clearly visible to the reasonable user of that website. The appeals court decided

to uphold the ruling of the district court saying that the defendant is not entitled to a remand of

the district courts decision and that the district court was not required to look at the facts but

whether that a reasonably prudent person could or should have known of the [license] terms by

which acceptance would be signified. The appeals court also said that a factfinder could not

reasonably find that defendants prevailed in showing that any of the user plaintiffs had entered

into an agreement on defendants license terms.

Issue 3- Whether the User Plaintiffs Had Reasonable Notice of and Manifested Assent to the

SmartDownload License Agreement

As I said earlier I dont believe that the users had reasonable notice and knowledge to the

SmartDownload License Agreement. I believe this because as it said in the case that the page that

the SmartDownload was on seemed like they were almost trying to conceal their license

agreement and hide it from them without reasonable notice that it was on the next page. I also

look at it like that in order for there to be an agreement or contract between the two parties there

has to be consent which there is not thus making it a defaulty agreement and not giving them the

right to take that information. The courts reasoning for this issue is the consumers are urged to
download free software at the immediate click of a button, a reference to the existence of license

terms on a submerged screen is not sufficient to place consumers on inquiry or constructive

notice of those terms. This basically means that they didnt do a good enough job for the

consumers to know that there was a licensing agreement thus causing no clear offer and no clear

acceptance even though the plaintiffs accepted the download. The appeals court then ruled in the

favor of the district court upholding their findings.

Issue 4- Whether Plaintiffs Assent to Communicators License Agreement Requires Them To

Arbitrate Their Claims Regarding SmartDownload

I believe that the Plantiffs dont have to arbitrate because they may have agreed to the

Communicators terms and license and in that agreement it says that all issues must be arbitrated.

The defendant argues that the plantiffs should be required to arbitrate because thats what it says

in the Communicators agreement but heres why they shouldnt have to because nowhere in that

agreement does it mention at all SmartDownload and the claim is against that. The appeals court

decided to uphold the district courts decision and their reason for this was because the claims of

the five user plaintiffs are beyond the scope of the arbitration clause contained in the

Communicator license agreement. Because those claims are not arbitrable under that agreement

or under the SmartDownload license agreement, to which plaintiffs never assented to.

Issue 5- Whether Plaintiff Specht Can Be Required To Arbitrate as a Nonparty Beneficiary

I believe that Specht cannot be required to arbitrate as a nonparty beneficiary because again there

was no clear agreement and no clear acceptance and this claim makes the defendants looking like

they are just trying to grasp some straws. The appeals court again upheld the decision of the

district court which was we conclude that Specht was not a direct beneficiary under
SmartDownloads license agreement or any other Netscape agreement, we affirm the district

courts refusal to compel arbitration of his claims. The courts reasoning was that Specht never

actually received any compensation from the company and thus even if it was tangible that he

was earning benefits they said that this court could not compel nonsignatories to arbitrate.