From JD Supra, Richard Newman discusses a recent case in which the arbibtration clause was in the terms and conditions which was too inconspicuous to be enforceable – they were merely presented as a hyperlink at the bottom of the page. Richard writes:
The Eleventh Circuit Court of Appeals recently affirmed a lower court ruling that a TCPA related arbitration clause contained in a lead generator’s online terms and conditions was unenforceable against a consumer.
Here, the lower court first determined that pursuant to both California and Florida law the defendant failed to establish that the online terms and conditions were too inconspicuous to be enforceable, and that simply utilizing a website does not necessarily mean that improperly presented terms are binding.
Consistent with other applicable case law, the lower court determined that because the online terms were merely presented as a hyperlink and at the bottom of the website page. As a result it determined that the consumer was not on proper inquiry notice because the terms were not noticeable.
Browsewrap agreements are those that seek to bind consumers based upon continued use of a website without requiring an affirmative action establishing consent. They are more difficult to enforce that clickwrap agreements which require consumers to actively and affirmatively agree to website terms by clicking a button or checking a box, for example.
Browsewrap agreements must be conspicuous, prominent, and in contrasting font and color. Here the links was in white coloring and a small font. The court believed that if a consumer failed to hover over the easy to miss link they would not reasonably be put on notice.
FTC .com disclosure guidance may be informative on issues such as what constitutes a “clear and conspicuous” disclosure. An experience ecommerce attorney can assist marketers with the design and implementation of enforceable website terms and disclosures, including those designed to avert class action litigation.
As a result, because the website construction and flow did not conspicuously reference the binding arbitration provision, the lower court refused to enforce that provision.
The case is Valiente v. Nexgen Global, 2025 WL 3140480 (11th Cir. 2025). If you have any questions about how this ruling may impact digital marketers, telemarketers and lead generators, contact an ecommerce lawyer to discuss strategies to minimize liability exposure via online terms and conditions.
Source: Lead Gen Terms Ruled Insufficient to Enforce Arbitration Agreement | Hinch Newman LLP – JDSupra
