ARBITRATION - MOORE-DENNIS V. FRANKLIN

Moore-Dennis v. Franklin, [Ms. 1131142, Feb. 26, 2016] __ So. 3d __ (Ala. 2016). “The issue whether a bank may unilaterally amend an account agreement solely by posting a notice to a customer’s online-banking profile is an issue of first impression for this Court.” “In this case, Franklin received nothing, either in the account agreement or when he executed the signature card or in the mail that should have notified him that there was a material part of the account agreement about which he did not know – unless, of course, electronic notifications in Franklin’s online-banking profile constituted sufficient notice.” The Court discusses five cases dealing with electronic notifications of the adoption of an arbitration provision and holds that in none of them “did any court hold that merely sending an e-mail alone or posting a notice on a Web page alone constituted sufficient notice that the recipient of the e-mail or viewer of the Web page was entering into an arbitration agreement. On the contrary, in each of the five cases, the respective courts expressly or impliedly required proof that the recipient (or someone with the recipient’s user name and password) accessed the specific e-mail or visited the specific Web page containing the arbitration provision. We believe that this rule is sound.” Franklin was elderly and did not have an e-mail address, Internet access, or use online banking. His niece was added as a signatory on his account and her e-mail was given to the bank, but “none of the e-mails in this case [sent to the niece] contained the text of the arbitration provision itself ... [or] provide any indication that ‘the message was important and affected [customers’] rights.’” Furthermore, a supplemental affidavit “tends to show only that [the niece] could have accessed the online statements, not that she did.” For these reasons, the Court affirms the order denying arbitration. This is a plurality opinion by Chief Justice Moore with Justice Parker concurring; Justice Murdock concurs in part and concurs in the result (distancing himself from the implication that public policy arguments are not appropriate); Justice Shaw concurs in the result, with opinion (making the point that PNC’s agreement provided for notice of a modification or amendment by mail, but not otherwise); and Justices Stuart, Bolin, Main, Wise, and Bryan concur in the result, without writing.