What makes a link “hyper” anyway?
Earlier this week I discussed the importance of arbitration agreements to thwart TCPA class actions.
Well today we see what happens when a website isn’t properly designed to assure consumers are agreeing to terms of use– including arbitration clauses–on the site.
In Ferrell v. Snapcommerce Holdings, Inc. 2025 WL 3280992 (N.D. Cal. Nov. 25, 2025) the court refused to compel arbitration determining the defendant’s website was not sufficiently designed to assure even “constructive” notice of the arbitration provision.
The plaintiff argued the arbitration provision was not sufficiently noticeable because: ” (1) it is “displayed in tiny gray font far below the phone number text box and the large, bright-blue ‘Send code’ button,” (2) “[t]he ‘Terms of Use’ hyperlink is not readily apparent,” (3) it does not capture a user’s name, email address, or other identifying information that would evidence assent, and (4) the notice is obscured by a user’s cellphone keyboard once the user clicks on the text box.”
Of these offenses, the court keyed in on the hyperlink issue:
Super, simply put, did not “do more than simply underscore the hyperlinked text.” Berman, 30 F.4th at 857. A link to its terms of use appears in very small, gray font on a white background at the bottom of a page on which it requires users to enter a phone number. The font of this notice is smaller than any other font on the page. See Sellers, 73 Cal. App. 5th at 481 (notice insufficient because it appeared in “smaller print than any other print on the page”). And the hyperlink to the terms of use is underlined but is not distinguished in any other way. This is insufficient to constitute reasonably conspicuous notice.
Weird right?
One would think that underlined text would be enough to advise consumers of a link, but not according to this court.
The court also focused on defendant’s ability to craft the form however it wanted: Likewise here, where Super had “complete control over the design of [its] website[ ],” id. at 465, it chose not to do more than present an underscored hyperlink in small, gray font, not distinguished by bolding or a different color. The Court accordingly finds the notice not reasonably conspicuous.
Pretty clear takeaways here:
- Definitely make sure you are using blue or pink or orange or something hyper to indicate a hyperlink; and
- Be sure your terms and use are conspicuous more generally and as close to the submission form as you can muster.
