The Virginia Business Litigation Blog
Toyota Motor Sales, Inc., will not be able to take advantage of a mandatory arbitration clause in an online agreement with a Los Angeles woman because the agreement was obtained by fraud and is therefore entirely void, a California state appeals court has held.
Amber Duick was targeted by Toyota as one of the people who would take on the role of “Player 2” in an interactive ad campaign entitled “Your Other You.” She sued Toyota and its advertising company, Saatchi & Saatchi North America, Inc., in 2009, after Toyota involved her in 2008 in an advertising campaign for its Matrix automobile as an evidently unwitting participant.
Sometime in 2008, Duick clicked a box on a Toyota-sponsored website entitled “Personality Evaluation Terms and Conditions.” The website indicated that by clicking, she was agreeing to participate in a five-day “digital experience through Your Other You,” and that she might receive emails, phone calls, or text messages from Toyota during that period. Duick soon found that instead of a personality test, she received several disconcerting emails from someone identifying himself as “Sebastian 
Bowler,” which implied that Bowler enjoyed drinking to excess, owned a pit bull, had been running from law enforcement, and had damaged a hotel room. Duick was told that she was liable for the hotel damage, even though she had never been there and had never met Bowler. Finally, at the end of the process, Toyota revealed that this was all made up. It was a prank on Duick that was part of the ad campaign for the Matrix.
Duick suited Toyota and Saatchi for $10 million in California state court for damages and other relief, claiming intentional infliction of emotional distress, negligence, and false advertising. Toyota moved to compel arbitration and take the case out of the court system. The trial court refused to compel arbitration, and the California Court of Appeal affirmed.
The appeals court reasoned that the contract with Duick, including the arbitration clause, was void and unenforceable because it was obtained by fraud “in the inception”; in other words, that Duick was deceived by Toyota and Saatchi as to the nature of the act she was performing when she clicked the box. Thus there was no valid and enforceable contract.
The defendants “led Duick to believe that she was going to participate in a personality evaluation and nothing more,” the court wrote. “In particular, a reasonable reader in Duick’s position would not have known that she was signing up to be the target of a prank. It might have been possible to draft the terms and conditions in such a way as to correct that a misimpression, but defendants did not do so.” Accordingly, the contract, including the arbitration clause, was held void and unenforceable under California law.