Kevin Nguyen v. Barnes & Noble Inc.

Barnes & Noble, Inc. (“Barnes & Noble”) appeals the district court’s denial of its motion to compel arbitration against Kevin Khoa Nguyen (“Nguyen”) pursuant to the arbitration agreement contained in its website’s Terms of Use. In order to resolve the issue of arbitrability, we must address whether Nguyen, by merely using Barnes & Noble’s website, agreed to be bound by the Terms of Use, even though Nguyen was never prompted to assént to the Terms of Use and never in fact read them. We agree with the district court that Barnes & Noble did not provide reasonable notice of its Terms of Use, and that Nguyen therefore- did not unambiguously manifest assent to the arbitration provision contained therein.

We also agree with the district court that Nguyen is not equitably estopped from avoiding arbitration because he relied on the Terms of Use’s choice of law provision. .

We therefore affirm the district court’s denial of Barnes & Noble’s motion to compel arbitration and to stay court proceedings.

I. Background

A. .

The underlying facts are not in dispute. Barnes & Noble is a national bookseller that owns and operates hundreds of bookstores as well as the .website -