Is that website arbitration provision enforceable?
- Peter Schneider
- Oct 20
- 8 min read
I've posted several articles on the topic of avoiding arbitration when litigating over a fraudulent opt here and here. However not every solicitation is illegal. For example in many cases companies you do business with are exempted from solicitation call regulations for 3 or 18 months because of the business relationship, or until canceled by the consumer.
Some companies don't honor the 3 or 18 month rules, or don't respect a consumer's request to stop the solicitation calls, and which point if there is or is not an enforceable arbitration agreement between the parties is a real issue because getting forced to litigate your TCPA claim is generally going to be the kiss of death.
Arbitration agreements can sneak in other ways, but often they come in through ecommerce. Most retail websites will have terms and conditions, and some version of forcing people interacting with the website to be bound to the terms and conditions.
The people who will illegally telemarket you also often the people who play games on their websites to hide what the website's users are supposedly agreeing to, and this has been litigated frequently enough that there are concrete examples of what won't work. For example, in the ninth circuit we have court case Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022) where several specific examples were held to be not binding on the user.
In Berman, the plaintiff used the defendants’ websites but did not see a notice in fine print stating, “I understand and agree to the Terms & Conditions which includes mandatory arbitration.” When a dispute arose and plaintiffs filed the lawsuit, defendants moved to compel arbitration, arguing that plaintiff’s use of the websites signified their agreement to the mandatory arbitration provision found in the hyperlinked terms and conditions.
Clickwrap is when a website presents users with specified contractual terms on a pop-up screen and users must check a box explicitly stating “I agree” in order to proceed. Courts are more reluctant to enforce “browsewrap” agreements, in which a website offers terms that are disclosed only through a hyperlink and the user supposedly manifests assent to those terms simply by continuing to use the website.
The appeals court ruled that because of how the websites displayed the terms and conditions in these images, the users did not agree to them.
Unless the web operator can show that a consumer has actual knowledge of an arbitration agreement, an enforceable contract will be found based on an inquiry notice theory only if: (1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.
These two specific website examples failed because the court held they did not provide reasonably conspicuous notice of the terms and conditions for two reasons.
First, to be conspicuous in this context, the ninth circuit wants the notice to be displayed in a font size and format such that the court can fairly assume that a reasonably prudent Internet user would have seen it.
Second, the court found the text disclosing the existence of the terms and conditions on these websites fell way short of conspicuous. It was printed in a small gray font considerably smaller than the font used in the surrounding website elements, and the court found it to be barely legible to the naked eye.
The comparatively larger font used in all of the surrounding text naturally directs the user’s attention everywhere else. And the textual notice was further deemphasized by the overall design of the webpage, in which other visual elements draw the user’s attention away from what the court found to be the barely readable critical text. The court found the overall layout didn't take the required steps to “to capture the user’s attention and secure her assent,” but instead the design and content of these webpages drew the user’s attention away from the most important part of the page - the terms and conditions.
Website users are entitled to assume that important provisions—such as those that disclose the existence of proposed contractual terms—will be prominently displayed, not buried in fine print. Because “online providers have complete control over the design of their websites,” Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 1, 16 (Ct. App. 2021), “the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers,” Nguyen, 763 F.3d at 1179. The designer of the webpages at issue here did not take that obligation to heart
The court wasn't done. While it is permissible to disclose terms and conditions through a hyperlink, the fact that a hyperlink is present must be readily apparent. The court fond that simply underscoring words or phrases, as in the webpages in these images, will often be insufficient to alert a reasonably prudent user that a clickable link exists.
A web designer must do more than simply underscore the hyperlinked text in order to ensure that it is sufficiently “set apart” from the surrounding text. Sellers, 289 Cal. Rptr. 3d at 29. Customary design elements denoting the existence of a hyperlink include the use of a contrasting font color (typically blue) and the use of all capital letters, both of which can alert a user that the particular text differs from other plain text in that it provides a clickable pathway to another webpage . . . Consumers cannot be required to hover their mouse over otherwise plain-looking text or aimlessly click on words on a page in an effort to “ferret out hyperlinks.” Unambiguous manifestation of assent. In using the websites, Hernandez and Russell did not take any action that unambiguously manifested their assent to be bound by the terms and conditions. Defendants rely on plaintiffs’ act of clicking on the large green “continue” buttons as manifestation of their assent, but merely clicking on a button on a webpage, viewed in the abstract, does not signify a user’s agreement to anything. A user’s click of a button can be construed as an unambiguous manifestation of assent only if the user is explicitly advised that the act of clicking will constitute assent to the terms and conditions of an agreement. The webpages here did provide advisals concerning the terms and conditions in proximity to the “continue” buttons. On the webpage Russell visited, the notice appeared directly above the button, and on the webpage Hernandez visited it appeared above the button separated by several intervening lines of text. But “even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.” Rather, the notice must explicitly notify a user of the legal significance of the action she must take to enter into a contractual agreement. The notice did not do so here. Both webpages stated, “I understand and agree to the Terms & Conditions,” but they did not indicate to the user what action would constitute assent to those terms and conditions. Likewise, the text of the button itself gave no indication that it would bind plaintiffs to a set of terms and conditions. This notice defect could easily have been remedied by including language such as, “By clicking the Continue >> button, you agree to the Terms & Conditions.” See, e.g., Meyer, 868 F.3d at 78–80 (concluding that an enforceable agreement was formed where the mobile app explicitly warned, “By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY”).
The best way to handle arbitration agreements is when you can, don't do business with businesses that force them. Arbitration is very anti-consumer, why do business with someone who tells you up front that if something happens they intend to screw you over?
Another arbitration clause that didn't work is in R.C. v. Walmart Inc., No. 5:24-cv-02003-SRM-DTB, 2025 U.S. Dist. LEXIS 194337 (C.D. Cal. Sep. 30, 2025). A privacy case but not through the TCPA, that plaintiff purchased products through a Walmart website6. Below the Place Order button, written in gray font, the Website states, "By placing this order, you agree to our Privacy Policy and Terms of Use:"
Walmart argues Plaintiffs must arbitrate their claims because they agreed to the arbitration agreement by clicking the "Place order" button on the Website, thereby agreeing to the Terms of Use that purport to require arbitration. Walmart claims that "this Court's task is limited to answering whether there is a valid agreement to arbitrate between the parties,"
The B.C. court did the analysis of Berman, looking to see if the terms and conditions were conspicuous.
Here, although the proximity of the hyperlink directly underneath the "Place order" button helps to put users on notice of the terms, the website does not provide reasonably conspicuous notice of the Terms of Use for three reasons. First, Walmart's hyperlink is written in small, light gray font against a white background. In fact, the font is nearly identical to that in Berman, in which the Ninth Circuit held that the light gray font against a white background could not provide a user with reasonably conspicuous notice. Second, the website's "Check Out" or "Buy Now" pages are cluttered with colorful graphics, links, and additional information along the left-hand side and around the Order Summary. Thus, the website's clutter draws a user's eyes away from the notice.
Walmart's motion to compel arbitration was denied.
But here is one that was upheld: Crowell v. Audible Inc., No. C25-0606-KKE, 2025 U.S. Dist. LEXIS 204445 (W.D. Wash. Oct. 16, 2025). The court found the directive to be clear "[b]y signing in, you agree to Audible's Conditions of Use," with black text, a font size not too small, and the links are blue and underlined,
The court found the sign in was simple, without a lot of visual clutter distracting the eye, and also a factor is the plaintiff had seen this sign in page many times.
Crowell and Smith, by contrast, would have navigated Audible's sign-in page every time they accessed their accounts. If there was any ambiguity the first time they signed in, it would have been clear each subsequent time they did so that clicking "Continue" meant "signing-in."
And another one denied in Eakins v. Whaleco Inc., 721 F. Supp. 3d 1252 (W.D. Okla. 2024). Before even seeing the court's analysis several things jump out. The terms and conditions are gray on white, the links are not upper case nor blue, and the whole things is far down the page from the Continue button.
It's almost like Temu (Whaleco) doesn't want the user to know about the terms and conditions.
And the court noticed all this and more: the orange button—in both placement and coloring—is set apart. One could argue it is initially unclear whether the terms of use agreement even pertains to the creation of an account using email or phone number. Most glaring, however, is the App’s failure to distinguish the “Terms of Use” hyperlink from its surrounding text. The notice here appears in grey font against a white backdrop, and while “Terms of Use” is a darker shade of grey, the contrast is neither remarkable nor presents with the traditional hallmarks of hyperlinked text.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington, Oregon, or Montana?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
Comments