MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

Nearly every person in the burgeoning population that regularly uses the internet has encountered one form or another of a website user agreement, or "clickwrap" agreement. Whether it be in the context of a subscription membership to a news service or an online banking and bill payment account, anyone subscribing to an internet-based service is inevitably greeted with a "pop-up" window containing a lengthy set of "terms and conditions of use." Normally, the user is informed that the agreement is accepted by using the service and is often asked to acknowledge such acceptance through clicking a radio button labeled with an affirmative statement such as "I accept." While clicking on "I accept" constitutes the user's acceptance of the website's contract under the terms and conditions contained therein, such clicking may in reality merely reflect a desire by the user to simply make the pop-up window disappear. In this sense, these contracts are not unlike many other consumer purchase contracts in that they may not be read by the party agreeing to them but they are also no less valid.

This is a case about pop-up windows, notification banners, and website user acceptance agreements. And more importantly, it is about revisions to such agreements. Plaintiffs Harold H. Huggins Realty, Inc. ("Huggins Realty"), P.E. Turner Company, Ltd. ("P.E. Turner"), Residential Appraisal and Consulting, Inc. ("Residential"), and Alfonso V. Torres d/b/a Front Door Appraisals ("Torres"), provide residential real estate appraisal services. They have brought a class action complaint against FNC, Inc. ("FNC"), on behalf of all real estate appraisers who have used FNC's "AppraisalPort" internet-based service. The crux of Plaintiffs' claims is that FNC induced them to convey their business proprietary appraisal information via AppraisalPort to their client mortgage lenders through false representations that such information would be transmitted securely and would not be viewed, intercepted, or stored by anyone — not even AppraisalPort — except the sending appraiser and the receiving client mortgage lender. In contrast to these representations, Plaintiffs allege, FNC has acquired and compiled this proprietary appraisal data into a "National Collateral Database," where it may be accessed by subscribing lenders and other market participants.

The merits of Plaintiffs' claims, however, are not currently before the Court. Instead, FNC has moved to stay these proceedings in favor of arbitration. Specifically, FNC moves the Court, pursuant to sections 3 and 4 of the Federal Arbitration Act, 9 U.S.C. §§ 3- 4, to stay all proceedings in this case pending arbitration of the claims of three of the four Plaintiffs: Huggins Realty, P.E. Turner, and Residential (together, the "Arbitration Plaintiffs"). FNC argues that the Arbitration Plaintiffs are parties to valid and enforceable arbitration agreements contained in the user agreements that they acknowledged either upon joining AppraisalPort or subsequently through an amendment process and that these arbitration agreements cover the claims in this case. FNC recognizes that Plaintiff Torres, by signing a later user agreement without an arbitration clause, has not agreed to arbitrate, but argues that the Court should also stay his proceedings because his claims are identical to those of the Arbitration Plaintiffs and such a stay would promote judicial economy, while avoiding prejudice through inconsistent results.

Plaintiffs respond that the Arbitration Plaintiffs are not parties to a valid arbitration agreement because FNC amended their user agreements during their memberships, replacing them with a new agreement that did not include any arbitration clause. FNC recognizes that it "attempted" to so amend the user agreements but argues that its attempt "failed", as discussed in more detail herein. For the reasons stated below, the Court concludes that no valid agreement to arbitrate exists between the Arbitration Plaintiffs, on the one hand, and FNC, on the other. As such, the Court will deny the motion to stay.

I.

To use AppraisalPort's services, Plaintiffs' appraisers were required to agree to certain terms of service contained in either a "User License Agreement" or "Subscription Agreement," the specific name of the agreement depending on when the user enrolled. In considering the facts of this case, the timing of when individual appraisers registered and executed a user agreement is important because FNC has offered three different versions of AppraisalPort license or subscription agreements to new users at different times during the period relevant to this case. The first two agreements contain binding arbitration clauses, while the third one includes no such provision. To make what would otherwise be an easy question more complicated, moreover, the parties disagree on whether the third agreement, which does not contain an arbitration clause, superseded any prior agreements that some users acknowledged upon their original registration and that purported to bind the parties to arbitration.

Turning to the specific facts, the first User License Agreement was offered to those users registering starting at some point in 2000 until August 14, 2002 ("2000 Agreement"). It appears to be undisputed that, based on the timing of their enrollment, both Carl Schneider, an appraiser employed by Residential, and Pat Turner, of Turner, acknowledged the 2000 Agreement at the time of their initial registration. In Paragraph 11 of the 2000 Agreement, the user agrees that "[a]ny controversy or claim arising out of or relating to this agreement shall be settled by binding arbitration." See Am. Mitchell Decl. ¶ 6 Ex. 2 ¶ 11. The 2000 Agreement also contains the following provision governing modification:

This User Agreement may be modified at any time. Whenever changes are made, the revised agreement will be posted at this location. New terms will be effective 30 days after the changes are posted. You will be asked to acknowledge your acceptance of the changes the first time you log in after the changes have been made.

On August 14, 2002, FNC introduced a new User License Agreement ("2002 Agreement"), which was offered to new subscribers upon enrollment until July 12, 2005. This 2002 Agreement appears to be identical in its overall structure and as to many specific terms to the 2000 Agreement, with the exception of some specific revisions. It contains a binding arbitration clause that is identical in part to the arbitration clause of the 2000 Agreement, at least as it pertains to the scope of claims subject to binding arbitration. The 2002 agreement also contains modification and choice-of-law provisions identical to those contained in the 2000 agreement. See Am. Mitchell Decl. ¶ 11 Ex. 5. Based on their date of enrollment, it appears to be undisputed that Harold Huggins, of Huggins Realty, and Jan Martin, of P.E. Turner, initially agreed to this 2002 Agreement.

It also appears undisputed, at least for purposes of this motion, that Schneider and Turner, as existing subscribers, became subject to the 2002 Agreement through amendment of their prior agreement. According to FNC, the first time existing subscribers like Schneider and Turner logged on to AppraisalPort after August 14, 2002, a "pop-up" box appeared on the computer screen, informing them that the User License Agreement "has been updated," summarizing and highlighting the changes to the agreement, and prompting the user to view the revised agreement and acknowledge agreement to the terms. Specifically, the existing subscriber encountering this pop-up box had a choice to either "View Now" or "View Later" the revised agreement. Clicking "View Now" caused the new 2002 Agreement to appear and the user was given the choice to click either "I agree" or "I disagree." If a user clicked "I agree," a "Thank You" message appeared and the user could proceed to use his or her account and would be spared further pop-up interruptions at the start of future sessions. Those users who clicked either "View Later" or "I disagree," on the other hand, could proceed with the current session but would encounter the same inquiries at the start of each subsequent session until the subscriber clicked "I agree." It is noteworthy that, despite creating this labyrinth for both its users and itself, FNC concedes that it does not have any records regarding which buttons were clicked by existing subscribers logging on after August 14, 2002, and when or if the users assented to the 2002 Agreement. Am. Mitchell Decl. ¶ 7.

On July 12, 2005, FNC again revised its user agreement offered to new subscribers, this time offering a "Subscription Agreement" ("2005 Agreement"). This 2005 Agreement contains no clause addressing arbitration. It is undisputed that Plaintiff Torres, based on his enrollment in November 2006, agreed to the 2005 Agreement at the time of registration and, therefore, is not subject to binding arbitration. As such, it is also undisputed that the Arbitration Plaintiffs would not be subject to binding arbitration if the 2005 Agreement effectively superseded the prior agreements between each of them and FNC.

FNC concedes that it "attempted" to amend and replace the 2002 Agreement with the 2005 Agreement but contends that this attempt was "unsuccessful." Unlike the period following the introduction of the 2002 Agreement, however, persons who were already subscribers of AppraisalPort prior to the introduction of the 2005 Agreement apparently were not required to acknowledge the change in user agreements through a pop-up screen or any other method. Instead, if an appraiser who subscribed before July 12, 2005, logged on between July 13, 2005, and August 5, 2005, a banner would have appeared at the top of the webpage "noting that new terms of service were being put into effect," Am. Mitchell Decl. ¶ 12, although the precise wording of this notice is not provided. An existing subscriber who did not log on to the website during this period could not have seen the banner.

Moreover, following the introduction of the 2005 Agreement, and even after Plaintiffs filed their Amended Complaint in this case and FNC filed two motions to compel arbitration, AppraisalPort displayed the 2005 Agreement as the "User Agreement" on a webpage accessible by all subscribers after logging in to their password-protected accounts. This included appraisers such as the Arbitration Plaintiffs who had first signed on and agreed to terms of use prior to the 2005 Agreement and were notified by a pop-up window of the change in terms in 2002. See Decl. of Perry E. Turner, Jr. ¶¶ 1-3 Ex. B F; Schneider Decl. ¶¶ 1-3 Ex. C E; Decl. of Harold H. Huggins ¶¶ 2 Ex. C. This 2005 Agreement was posted as the applicable user agreement for the Arbitration Plaintiffs as late as November 2007, more than six months after Plaintiffs filed their Original Complaint.

The language of the 2005 Agreement is also relevant to the issue of amendment, given its display on the FNC website as the "user agreement" for all users. Specifically, the 2005 Agreement states: (1) "This Subscription Agreement . . . shall govern SUBSCRIBER's use of AppraisalPort's products and services. Subscriber must agree to abide by all of the terms and conditions in order to become or to remain an authorized SUBSCRIBER," Schneider Decl. Ex. B sec. 1, para. 5; (2) "SUBSCRIBER's . . . use of any product or service constitutes SUBSCRIBER's agreement to its terms and conditions in their entirety," id. para. 6; and (3) "This Agreement constitutes the entire understanding and agreement between AppraisalPort and SUBSCRIBER with respect to the transactions contemplated herein and supersedes any and all prior . . . oral or written communications with respect to the subject matter hereof, all of which are merged herein," id. sec. 10, para. 2.

Finally, it is also relevant that all three agreements contain choice-of-law provisions designating the law of Mississippi as the law to be applied to disputes arising under the agreements.

II.

A. Applicable Law

Although federal law demands that the scope of arbitration clauses be interpreted liberally, the antecedent inquiry — whether there is a valid agreement to arbitrate — is a question of state law governing the formation of contracts. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Adkins v. Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002). In this manner, "even though arbitration has a favored place under federal law, there still must be an underlying agreement between the parties to arbitrate." Arrants v. Buck, 130 F.3d 636, 640 (4th Cir. 1997). Therefore, before exploring whether a valid agreement to arbitrate exists, the Court must first determine which state law governs.

In this case, it is undisputed, at least for purposes of this motion, that all Plaintiffs except for Torres were at some point in time subject to the 2002 Agreement. In order to decide whether a valid arbitration agreement exists between the Arbitration Plaintiffs and FNC, the Court must determine whether the 2005 Agreement superseded the 2002 Agreement. As reviewed above, parties to the 2002 Agreement explicitly agreed (1) to the conditions under which FNC could modify its terms and (2) that the law of Mississippi would govern any interpretation of the agreements. With no question that the terms of the 2002 Agreement govern its modification and specify that such terms be governed by the law of Mississippi, the Court will apply Mississippi law in determining whether the 2005 Agreement superseded all prior agreements to which the Arbitration Plaintiffs were parties. See Volvo Constr. Equip. N. Am., Inc. v. CLM Equipment Co., 386 F.3d 581, 595-99 (4th Cir. 2004) (applying the law of jurisdictions designated in choice-of-law clauses (1) to interpret the meaning of termination clauses, including questions of integration, the effect of subsequent oral promises, course of dealing, and duty of good faith and fair dealing, as well as (2) to determine whether defendant was estopped from terminating).

B. Whether a Valid Agreement to Arbitrate Exists

FNC argues that valid agreements to arbitrate exist between each of the Arbitration Plaintiffs, on the one hand, and itself, on the other, because all such Plaintiffs agreed to the terms of the 2002 Agreement at some point, including its clause providing for binding arbitration, and that such agreements are still in effect. FNC admits that, on July 12, 2005, it at least "attempted" to amend the 2002 Agreement by replacing it with the 2005 Agreement, which does not include an arbitration provision. FNC argues, however, that the 2005 attempted amendment was not effective for users who had already subscribed prior to its introduction for two reasons: (1) FNC did not ever ask these existing subscribers to "acknowledge" their acceptance of the changes, as allegedly "required" by the terms of the 2000 and 2002 Agreements; and (2) FNC did not otherwise provide sufficient notice to subscribers who had enrolled prior to July 12, 2005, as required under general contract law.

Plaintiffs raise two main arguments as to why the Arbitration Plaintiffs are not bound by the arbitration provision of the 2002 Agreement. First, Plaintiffs contend that the 2005 Agreement superseded the 2002 Agreement. Specifically, Plaintiffs highlight that both the 2000 and 2002 Agreements state that they could be modified at any time by FNC as long as the new terms were posted on the website for 30 days, a condition that Plaintiffs argue was satisfied here. That this was all that was needed to effect a modification is supported, Plaintiffs claim, by the fact that FNC does not maintain records as to which users acknowledged past notifications of new terms. This supersession is supported also, Plaintiffs claim, by the terms of the 2005 Agreement itself, which purport to govern the terms of use for all users.

Second, Plaintiffs urge that FNC should be precluded by the doctrines of estoppel and waiver from arguing that the 2005 Agreement does not apply. For support of its equitable arguments, Plaintiffs cite the facts that (1) the 2005 Agreement was posted on its website following its introduction as the "User Agreement" for all users accessing the site, including those who had not explicitly acknowledged it by clicking through a pop-up and window and (2) FNC included a banner notifying users of the new terms from July 13, 2005, to August 5, 2005.

In order to resolve these issues, the Court will address: (1) whether FNC complied with the modification provisions of the 2002 Agreement when it introduced the 2005 Agreement, posted it on its website as the "User Agreement" for all accounts, and posted a banner for several weeks indicating that the terms and conditions of use had been changed; (2) assuming that FNC did not comply fully with the modification terms of the 2002 Agreement, whether FNC nevertheless effected a valid modification under the terms of the 2002 Agreement because the Arbitration Plaintiffs have waived one or more such requirements; and (3) whether FNC waived or is estopped from asserting its right to enforce the arbitration provisions contained in the 2000 and 2002 Agreements through its actions taken in relation to the introduction of the 2005 Agreement.

(1) Whether the Prior Agreements Were Validly Superseded by the 2005 Agreement

FNC argues that any modification to the prior user agreements was ineffective because it neither (1) complied with specific provisions in the prior agreement governing such modifications nor (2) complied with general principles of law governing the formation of contracts, including notice to the existing users. In considering these arguments, the Court should first clarify that, while parties may agree in advance to a method for modifying an agreement, such method is not exclusive, and the parties are free to choose another method of modification, thereby waiving the originally agreed provisions for modification. See 17A C.J.S. Contracts § 409. As explained herein, the Court concludes that FNC's modification through issuance of the 2005 Agreement either complied with the explicit provisions of the 2000 and 2002 Agreements, or, alternatively, such provisions were otherwise waived by the Arbitration Plaintiffs.

(a) Compliance with Modification Provisions

This User Agreement may be modified at any time. Whenever changes are made, the revised agreement will be posted at this location. New terms will be effective 30 days after the changes are posted. You will be asked to acknowledge your acceptance of the changes the first time you log in after the changes have been made.

(Emphasis added.) Under the plain terms of the first sentence, therefore, the 2000 and 2002 Agreements purport to give FNC the unilateral right to modify them at any time. FNC argues that the second, third, and fourth sentences in the modification paragraph create mandatory conditions that must be satisfied before a modification is valid. As discussed above, it is undisputed that FNC did not ask previously registered users to acknowledge the 2005 Agreement the first time they logged in after it was introduced or, for that matter, at any time they logged in. For this reason, FNC contends, its attempted modification was ineffective.

The Court disagrees for two reasons. First, the modification provisions of the 2000 and 2002 Agreements are, at the very least, ambiguous as to whether asking the user to "acknowledge" acceptance of the changes is truly a necessary condition to effect a modification. In a case cited by FNC, the Supreme Court of Mississippi ruled that "[a]mbiguities in a contract are to be construed against the party who drafted the contract." Union Planters Bank, Nat'l Ass'n v. Rogers, 912 So.2d 116, 120 (Miss. 2005) (citing Miss. Transp. Comm'n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1084)). FNC cites Rogers, of course, because the Supreme Court there found that a bank customer's continued use of an account by itself was insufficient to effect a modification, at least where a prior mailing had stated that the customer's agreement would be effected by "signing a signature card and using your account." 912 So.2d at 118-19. Critical to the result in Rogers, however, was the fact that it was the drafter of the modification provisions who sought to validate its own attempted modification, not invalidate it, as FNC seeks to do here. In stating the above-quoted passage as one of the bases of its decision, therefore, Rogers stands less for the strict construction of modification provisions in general, than it does for the strict construction of them against the drafter. (More on Rogers, infra.)

Turning to the facts of this case, the Court recognizes that all three sentences in the modification provision in the 2000 and 2002 Agreements include the phrase "will be." Only one of those sentences, however, includes the effectiveness of the modification as being linked to the "will be" language. Specifically, while the second sentence states that the new terms "will be posted," and the fourth sentence states that the user "will be asked to acknowledge," only the third sentence purports to state explicitly the condition(s) under which the new, unilaterally imposed terms "will be effective." By using the phrase "will be effective" in this manner, the third sentence creates an ambiguity because it is at least capable of being understood as stating that posting of the new terms for thirty days is not merely one in a series of necessary conditions but is, in fact, sufficient by itself to effect a modification. The implication of such a reading, of course, is that asking the user for acknowledgment is not necessary to effect a modification, but is rather mere "icing on the cake."

The Court recognizes that FNC stated in the fourth sentence that it would "ask" prior users to acknowledge their acceptance of the changes the first time they log in after the new terms are posted. The question is: what are the consequences if it fails to do so? Nothing in the fourth sentence or in any other term explicitly indicates that asking for customer acknowledgment is a condition precedent to the effectiveness of FNC's unilateral modifications. The fourth sentence simply does not state that the revisions "will be effective" after they have been posted for thirty days and after users are asked to acknowledge their acceptance. And while such a requirement, as drafted, is capable of being read as a condition precedent to the effectiveness of a modification, such a reading is not clear in light of the explicit provision just before it that effectiveness "will" occur after the new terms are posted for thirty days. In sum, where it is ambiguous whether such an acknowledgment inquiry is a condition precedent to the effectiveness of a modification, and where FNC's legal position would benefit from its admitted failure to do so, the Court construes the language against FNC and concludes that the 2000 and 2002 Agreements permit modification by FNC at any time and that such modifications will be effective after they are posted for thirty days.

(b) The Appraisal Plaintiffs' Waiver of Modification Requirements

On the question of waiver, Rogers is again relevant and again unhelpful to FNC's argument. In addition to construing modification provisions against the drafter, as reviewed above, Rogers also carefully limited its holding to cases in which one party unilaterally attempts to divest another party of its important right of access to the courts by adding an arbitration clause. In finding "absolutely no evidence that either of the Rogerses voluntarily and knowingly waived their right to access to the courts," 912 So.2d at 119, the court explained the need for a strict waiver requirement in this special context: "waiving the right to have access to the courts is something much more significant and of a different character than changing the terms and conditions of a bank account, assent for which can be obtained simply by the continued use of the account." Id. at 120. Such a strict waiver requirement is not called for here, where the Arbitration Plaintiffs have not have waived their right to have access to the courts and, in fact, seek to gain such access through waiver of a contractual provision arguably intended for their protection. As such, the Court finds that the Arbitration Plaintiffs can and did waive any provision stating that FNC will ask for their acknowledgment of the 2005 Agreement, to the extent that such an inquiry may have been required.

(2) Estoppel and Waiver as to FNC

Plaintiffs argue that, even assuming that the 2005 Agreement did not actually supersede the 2002 Agreement with its arbitration provision, FNC is nevertheless precluded by principles of estoppel and waiver from asserting the arbitration provision due to its subsequent conduct. The Supreme Court of Mississippi has summarized that "[w]aiver is voluntary surrender or relinquishment of some known right, benefit or advantage; estoppel is the inhibition to assert it." Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 964 (Miss. 1999). Although Plaintiffs do not neatly separate the distinct concepts of estoppel and waiver, the Court interprets Plaintiffs's arguments as twofold: (1) FNC is estopped from denying that the 2005 Agreement superseded the prior agreements and (2) FNC has waived the arbitration provision contained in the prior agreements through its conduct, including through its representations as to the effectiveness of the 2005 Agreement on its website after the commencement of this litigation. Each of these arguments is discussed separately.

(a) Estoppel to Deny Effectiveness of Modification by 2005 Agreement

"Equitable estoppel is a doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right he otherwise would have." In re Municipal Boundaries of City of Southhaven, 864 So.2d 912, 917 (Miss. 2003). Under Mississippi law, a party asserting equitable estoppel must prove (1) belief and reliance on some representation; (2) change of position as a result of the representation; and (3) detriment or prejudice caused by the change in position. Id.; see also Brock v. Hankins Lumber Co., 786 So.2d 1064, 1067 (Miss.App. 2000) (defining equitable estoppel as applying where "one party by its conduct, words, or even silence, makes a representation or concealment of material facts . . . with actual or imputed knowledge of the facts and with the intent that the other party rely on the representation because of the party's ignorance of the truth," proximately causing injury to the other party).

A leading treatise has explained that ordinary principles of estoppel may be applied to the formation of contracts, and not only their interpretation: "if either party misrepresents an element of fact essential to the existence or nonexistence of a contract, and the other party justifiably relies on this representation and takes detrimental action in consequence, it will not be open to the party making the representation to show its error." 2 Williston on Contracts § 6:63 (4th ed. 2000); see, e.g., Netco, Inc. v. Dunn, 194 S.W.3d 353, 360 (Mo. 2006) (explaining that "[a] party may be estopped from questioning the existence, validity and effect of a contract by accepting the benefits of that contract"); Otero v. Wheeler, 701 P.2d 369, 373 (N.M. 1985) (observing that "[o]ne may not partially perform when advantageous to do so, nor reap the benefits from written or unwritten contracts, and then assert absence of contract to avoid the penalties of refusing to complete performance"); Alix v. Alix, 497 A.2d 18 (R.I. 1985) (asserting that "when a necessary element of a contract is lacking as a result of one contracting party's failure to act, and that party has reaped those benefits to which he or she was entitled under the contract, he or she cannot thereafter raise the issue of the validity of the contract in order to avoid fulfilling his or her own obligations under the contract"). As such, the Court may consider whether FNC is estopped from denying that the Arbitration Plaintiffs assented to the 2005 Agreement and, therefore, that the modification was effected.

FNC is correct that, at least under the doctrine of equitable estoppel, Plaintiffs cannot prevail. As reviewed, a party seeking to utilize equitable estoppel must show that it has relied on the representation at issue in changing its position, causing a detriment. Although Plaintiffs argue that they and their lawyers relied on FNC's representations that the 2005 Agreement governs the Arbitration Plaintiffs' ability to bring this suit, this assertion is not supported by any evidence on the record and, in fact, is undermined by it. Schneider and Turner both submitted sworn affidavits indicating that they each accessed the AppraisalPort website and checked the posted user agreement in July 2007, at which time they discovered that the 2005 Agreement was listed. This was after FNC filed its first motion to compel arbitration revealing its argument that the 2005 Agreement was ineffective and approximately two months after Plaintiffs filed their Complaint. As such, the only evidence indicates that certain employees of Plaintiffs learned that the 2005 Agreement was posted on the website after suit was filed; there is no evidence that they knew of the posting before the suit was filed or that it relied on such knowledge in filing the Complaint.

This, however, does not end the inquiry. In addition to equitable estoppel, Mississippi recognizes the doctrine of "quasi estoppel." The Supreme Court of Mississippi has explained that the doctrine of quasi-estoppel "`precludes a party from asserting to another's disadvantage, a right inconsistent with a position [it has] previously taken,' and `applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit.'" Bailey v. Estate of Kemp, 955 So.2d, 777, 782 (Miss. 2007) (quoting Bott v. J.F. Shea Co., 299 F.3d 508, 512 (5th Cir. 2002) (describing Texas law)); see also Wood Naval Stores Export Ass'n v. Gulf Naval Stores Co., 71 So.2d 425, 430 (Miss. 1954). The concept of quasi estoppel, although a species of equitable estoppel, is based on the principles of election, waiver, ratification, affirmance, acquiescence, or acceptance of benefits. 31 C.J.S. Estoppel Waiver § 146. Unlike equitable estoppel, however, quasi estoppel does not require detrimental reliance. Neiman-Marcus Group, Inc. v. Dworkin, 919 F.2d 368, 371 (5th Cir. 1990) (explaining that "[q]uasi estoppel differs from equitable estoppel or estoppel in pais in that quasi-estoppel requires no concealment or misrepresentation of existing facts on the one side, and no ignorance or reliance on the other" (internal quotation marks omitted)).

The Court finds that FNC is estopped from denying the validity of the 2005 Agreement as a modification to prior agreements with existing subscribers at the time it was introduced because such a position would be inconsistent with its prior representations, and permitting it to assert such a position would be unconscionable. See Unruh v. Indus. Comm'n of Arizona, 301 P.2d 1029, 1031 (Az. 1956) (explaining that quasi estoppel applies where "the conscience of the court is repelled by the assertion of rights inconsistent with a litigant's past conduct"). Such a denial now in this litigation is wholly inconsistent with FNC's representations to its users since the introduction of the 2005 Agreement — and continuing well into this litigation — that it was the applicable user agreement for all users. FNC itself admits that it attempted to modify the prior agreements by replacing them with the 2005 agreement but claims that it was "unsuccessful." Yet, there is no indication before the Court that FNC ever realized that its attempted modification "failed" until it sought to compel arbitration in this proceeding. It never posted an announcement or created a pop-up window informing its subscribers of this failure and clarifying that the 2002 Agreement still applied, nor did it ever seek to correct the failure through notifying its subscribers that continued use would result in the application of the 2005 Agreement to them. Rather, just as FNC claims that the Arbitration Plaintiffs cannot claim knowledge of the posting of the 2005 Agreement prior to filing the case, FNC cannot claim knowledge that such a posting was in error prior to filing its motion to compel. See Betz v. Lorimar Productions, Inc., 99 F.3d 904, 906 (9th Cir. 1996) ("[W]hen a party's treatment of an account is inconsistent with the party's litigation position before the court, we are inclined to give more weight to the party's treatment of the account than to his litigation posture.").

Strengthening the case for quasi estoppel is the doubtful ability of FNC to determine which, if any, pre-2005 subscribers (and potential class members in this case) actually did become subject to the 2005 Agreement. Although it is possible that FNC may have records of which subscribers logged on to AppraisalPort between July 13 and August 5, 2005, and thereby may have seen the banner indicating the issuance of new terms of use, it would be pure speculation to try and determine how many additional users may have clicked on the user agreement link to display the 2005 Agreement, like Schneider, Turner, and Huggins did, much less how many of them actually became aware that the agreement shown was new and superseded a prior agreement. Because FNC has conceded that it does not even have records of which users actually acknowledged the prior modification in 2002, it is at least highly doubtful that it could produce any evidence of which users even logged on during the twenty-four day banner period. FNC simply does not know who was notified and this is in part because it probably did not realize that there was any question of the 2005 Agreement's validity until it investigated the situation pursuant to this litigation. There can be no question, however, that at least some users who subscribed prior to the 2005 Agreement — even under FNC's arguments — became subject to it through their happenstance stumbling upon a temporarily posted notification banner or their curiosity in clicking on the "user agreement" link, and their continued use.

(3) Waiver of Right to Assert Arbitration Provisions

Alternatively, the Court finds that FNC has waived its right to assert the arbitration provisions. Under Mississippi case law,

Waiver presupposes full knowledge of a right existing, and an intentional surrender or relinquishment of that right. It contemplates something done designedly or knowingly, which modifies or changes existing rights or varies or changes the terms and conditions of a contract. It is the voluntary surrender of a right. To establish a waiver, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right alleged to have been waived.

The Supreme Court of Mississippi has recognized that a party may waive an arbitration provision by conduct during the formation of a contract. See Scott Addison Constr., Inc. v. Lauderdale County Sch. Sys., 789 So.2d 771 (Miss. 2001). In Addison, the plaintiff construction company filed a demand for arbitration against a school system under a contract to build an elementary school. During negotiations, however, the school system had deleted the arbitration provision. Mississippi's Supreme Court upheld the trial court's finding that the plaintiff waived any objection to the deletion of the arbitration provision by raising other objections to the contract but remaining silent on the deleted arbitration clause and proceeding to perform the contract by building the elementary school. Id. at 775.

Here, the indications of waiver are even stronger than in Addison. FNC admits that it intended to modify the 2002 Agreement through its issuance of the 2005 Agreement but claims that it failed to do so only because it did not notify users like the Arbitration Plaintiffs here. In doing so, it affirmatively placed a banner on its website notifying users of the new agreement and posted the new agreement as the effective user agreement for all subscribers. As the drafter, FNC can certainly be charged with knowledge of the terms of both the 2002 and 2005 Agreements and, therefore, must be assumed to have known that it was issuing an agreement that removed its right to compel arbitration. Such a relinquishment was certainly voluntary, as FNC was the only party with power to modify the agreement. Accordingly, the Court finds that FNC has waived any right to compel arbitration under the 2000 or 2002 Agreements.

III.

In the end, it is important to keep in mind that FNC drafted the user agreements for AppraisalPort with its own pen (or keyboard, more likely) so as to give it, and it alone, the power to modify its terms. Although one might normally consider this a blessing, it can also be a curse. While FNC was free to lay down the rules to govern its relationship with its users, it also took the risk that in doing so it would live to regret such rules when future circumstances proved them disadvantageous. The voluntary and knowing removal of the binding arbitration clause in the 2005 Agreement is one such modification — or attempted modification — that FNC clearly grew to regret, but only after the filing of this case. Until this case, all actions by FNC indicated that it had wanted to effect the modification and believed it had done so successfully.

But what if FNC did not regret the 2005 Agreement and, because of some legal advantage it gave, instead sought to enforce it? Surely the Court would be hearing argument from FNC that the Arbitration Plaintiffs freely assented to the provisions giving FNC full power to modify their agreements unilaterally after posting them and that FNC complied with its obligations. Again, the Court would be forced to parse ambiguous modification provisions, and again the Court would likely need to consider the equities inherent in the conduct of the parties. In this manner, FNC's actions are like a man standing with one foot on a dock and one foot on an untethered boat drifting away and unable to choose whether to stay on land or shove off to the sea. When this case was filed, FNC's time to choose ran out and it ended up in the water. As FNC's predicament is wholly of its own making, the Court will not now throw it a life preserver.

Accordingly, for the reasons stated above, the Court will enter an order denying the motion to compel.

ORDER

Upon consideration of the Motion of FNC, Inc. to Stay Proceedings in Favor of Arbitration [Paper No. 21], the response and reply thereto, and the arguments of counsel presented at the hearing conducted before the undersigned on December 10, 2007, for the reasons stated in the accompanying memorandum opinion, it is this 28th day of August, 2008, by the United States District Court for the District of Maryland,

ORDERED, that the Motion of FNC, Inc. to Stay Proceedings in Favor of Arbitration [Paper No. 21] is DENIED.