Dewayne Hubbert, Elden Craft, Chris Grout, and Rhonda Byington bought computers from Dell Corp. through its Web site. Before buying, Hubbert and the others configured their own computers. To make a purchase, each buyer completed forms on five Web pages. On each page, Dell’s “Terms and Conditions of Sale” were accessible by clicking on a blue hyperlink. A statement on three of the pages read, “All sales are subject to Dell’s Term[s] and Conditions of Sale,” but a buyer was not required to click an assent to the terms to complete a purchase. The terms were also printed on the backs of the invoices and on separate documents contained in the shipping boxes with the computers. Among those terms was a “Binding Arbitration” clause.
The computers contained Pentium 4 microprocessors, which Dell advertised as the fastest, most powerful Intel Pentium processors then available. In 2002, Hubbert and the others filed a suit in an Illinois state court against Dell, alleging that this marketing was false, misleading, and deceptive. The plaintiffs claimed that the Pentium 4 microprocessor was slower and less powerful, and provided less performance, than either a Pentium III or an AMD Athlon, and at a greater cost. Dell asked the court to compel arbitration. [Hubbert v. Dell Corp., 359 Ill. App. 3d 976, 835 N. E. 2d 113, 296 Ill. Dec. 258 (5 Dist. 2005)]
(a) Should the court enforce the arbitration clause in this case? If you were the judge, how would you rule on this issue?
(b) Do you think shrink- wrap, click-on, and browse- wrap terms impose too great a burden on purchasers? Why or why not?
(c) An ongoing complaint about shrink- wrap, click- on, and browse-wrap terms is that sellers (often large corporations) draft them and buyers (typically individual consumers) do not read them. Should purchasers be bound in contract by terms that they have not even read? Why or why not?