## Facts

- Toyota and its ad agency Saatchi ran an online “Your Other You” campaign to market the Toyota Matrix.
- A website visitor (“player 1”) could enroll another person (“player 2”) to receive a multi-day sequence of messages as part of an “interactive experience.”
- Amber Duick, the designated “player 2,” received an email invitation that led her to a “Personality Evaluation” and then to “Personality Evaluation Terms and Conditions.”
- To proceed, Duick had to click a box stating, “I have read and agree to the terms and conditions,” which included an arbitration clause and general language referencing a multi-day “digital experience” with possible emails, texts, or calls.
- After assent, Duick received increasingly alarming communications from a fictional character implying he was traveling to her home, possessed personal information about her, and had engaged in criminal or threatening conduct.
- At the end of the sequence, a message revealed the scenario was fictional and part of a Toyota advertising campaign.
- Duick sued for tort and statutory claims, including intentional infliction of emotional distress, negligence, and false advertising.
- Defendants moved to compel arbitration based on the online terms; the trial court denied the motion, and defendants appealed.

## Issues

1. Whether a valid agreement to arbitrate existed where the online terms allegedly misrepresented the nature of the transaction.
2. Whether the purported contract (including the arbitration clause) was void due to fraud in the execution, defeating mutual assent.

## Decision

- The Court of Appeal affirmed the order denying the motion to compel arbitration.
- The court held the purported agreement was void for fraud in the execution because Duick was deceived about the nature of what she was agreeing to.
- Because the contract was void, the arbitration clause could not be enforced or severed.

## Legal Principles

- Fraud in the execution occurs when a party is deceived about the nature of the act such that there is no mutual assent; a contract formed under such deception is void, not merely voidable.
- When the entire agreement is void for lack of assent, an arbitration clause contained within it is unenforceable because there is no valid contract to arbitrate.
- A clickwrap assent mechanism does not establish a valid agreement if the surrounding presentation and terms materially misrepresent the essential nature of the transaction to a reasonable person.
- Where contract formation fails on fraud-in-the-execution grounds, courts need not reach separate defenses to arbitration such as unconscionability.

## Conclusion

The court refused to compel arbitration because the online “Personality Evaluation” framing and terms did not reasonably disclose that the user was agreeing to be the unwitting target of a realistic prank, constituting fraud in the execution and rendering the entire agreement—including its arbitration clause—void.


Duick v. Toyota Motor Sales, U.S.A., Inc., 198 Cal. App. 4th 1316 (Ct. App. 2011)