One thing that might have struck you as you were thinking about these questions about employment contracts in much of this course, is that some of the contracts I'm describing don't include the most common way we have of contracting today, which is the computer or specifically the Internet. Most of the contracts that you and I and everyone we know participate in are going to be online contracts. They're going to be agreements that we manifest assent to by clicking, I agree or I agree to the terms and conditions. Increasingly, this is true in employment settings also. In a lot of employment settings, the way that employees will agree to their deals is by clicking I agree. Now, as a baseline matter of the doctrine, clicking I agree to the terms and conditions is absolutely a way of agreeing to a contract. Now, most of us, certainly me included, when we click I Agree, have not read the terms and conditions. In my case, I have almost never read the terms and conditions for these deals because if I did that, it would take me all of my time. There are terms and conditions when I use Amazon, there are terms and conditions when I read The New York Times online, there's even terms and conditions if I tried to watch shows on Hulu. Most of us are agreeing without reading much of the time and as a matter of contract law, that counts as assent. Now, with that said, courts have had to grapple with the quality of assent across different kinds of electronic interactions. Courts have, among other things, distinguished between the way that you have to click I agree. There are two contracts I'm going to name here, which have, I don't know, not very evocative names and they are Click-Wrap and Browse-Wrap. Historically, courts have said, if there is just a notification on a web page that says, Hey, by using this website, you agree to our terms and conditions. That might not count assent. It's not obvious that someone had to see that in order to go about their business and they haven't actually manifested assent in any traditional sets. Whereas click-wrap is an easier call. In click-wrap agreements in order to get to the desired outcome, say, to purchase your product that you're buying or to enter into the employee portal, for example. You have to click saying that you have read the terms and conditions in order to move on, which is to say you have to manifest assent by clicking the button, even if you haven't actually read the terms and conditions or use the I agree to the terms and conditions. Now, this principle of assent and how it translates into the online space, I think it's helpful to think about courts as being relatively quick to find assent. Even when it looks like the quality of the assent is potentially a little bit thin. Let me give you an employment example so you can see how this shook out in a particular employment situation. The case that I am going to describe here is called Newell Rubbermaid versus Storm. Sandy Storm in this case is the defendant and her company Newell Rubbermaid was seeking a temporary restraining order against her actually because she had left the company and she had moved to a competitor company. Actually, Sandy Storm's job was that she was the sales agent who was selling basically baby furniture, like car seats and stuff manufactured by Newell Rubbermaid in this case, their brand name is Greco. She's selling them to places like Target and she has a large role in the company because Target is a big buyer. The company claimed when she left her job, that she was in danger of violating confidentiality and non solicitation provisions in her employment contract because she had left and gone to a competitor, the manufacturer of Chico baby products. She said, basically, I've looked through my employment contract and I don't see anywhere where I have signed these provisions, these confidentiality and non solicitation provisions. The company says, actually here's when you signed them. A few years ago, when you were being rewarded for some of your work, you accepted restricted stock units that you expect what are called RSUs. You accepted RSUs as a a form of compensation as a reward, and the RSUs came to you via the Fidelity website. Fidelity is the brokerage. When you went online to accept these RSUs to receive them, you had to go to the Fidelity website which maintains the investment and retirement counts of all of our employees and the instructions on that website prompted you to click an Accept button. That Accept button then gave you a pop-up screen which listed a bunch of terms and conditions including this confidentiality and non solicitation provision and the confidentiality non solicitation provision mean that you guys would have to keep certain information about the trade practices confidential and that you can't solicit current clients with a new employer. This is an unusual case because she certainly has a colorable claim that when she went to get these restricted stock units on the Fidelity website, she didn't particularly have a reason to think that she was going to be accepting salient, real changes to her employment agreement. The court acknowledged this was true, but this is what they said, Storm admits that she clicked the checkbox next to which were the words, I have read and agree to the terms of the grant agreement. This function as an admission that she had the opportunity to review the agreement, even if she didn't read it, and the Rubbermaid is entitled to rely on. The court continued, her actions of clicking the checkbox and Accept button were manifestations of assent. She even admit that she clicked on the hyperlink which contain the restrictive covenants when she states that the procedures for accepting the 2013 agreements were the same as the earlier RSU award she accepted. Storm, thus assented after being provided with and after acknowledging actual notice. In some ways this case is surprising and probably on a line, although it is true that the overall trend of courts is to be somewhat lax about where they are going to find assent. Other units within the Newell Rubbermaid had given their employees who signed these agreements more real notice given to them in paper, for example. But nonetheless, the court found that this was adequate notice that she was assenting to these terms of her contract and they granted that restraining order. That's the way that you can think about a court's using traditional principles of assent and taking very seriously the actions and behaviors that parties are partaking in, even when they're in an Internet form, even in a form in which the courts basically know that nobody is going to be reading the quantity of fine print, nor are they really going to be on notice about major changes to the contract that come in that format.
