The latest in a series of cases addressing lead generation webform submission layouts went poorly for the defense on appeal yesterday.
In Valiente v. Nexgen Global, 2025 WL 3140480 (11th Cir. 2025) the Eleventh Circuit Court of Appeals held the district court did not error in holding a consumer did not have to arbitrate TCPA claims against a defendant following a website submission.
The court held hyperlink terms at the bottom of the website were not sufficient to create a “browsewrap” agreement:
Here, the district court correctly held that, under both California and Florida law, Nexgen has not shown an enforceable browsewrap agreement. As the court explained, Nexgen’s website did not make its “Terms of Use” conspicuous such that it would put a reasonable person on inquiry notice of them. See MetroPCS Commc’ns, Inc., 273 So. 3d at 1028; Berman 30 F.4th at 856; Long, 200 Cal. Rptr. 3d at 126. Nor does the website suggest that mere use of the website necessarily reflects assent to the “Terms of Use.” Nguyen, 763 F.3d at 1176; Berman, 30 F.4th at 856. The placement of the “Terms of Use” hyperlink was far from obvious or noticeable. The hyperlink was located at the bottom of the page of a website that was crowded with various other information. In addition, the hyperlink was not in a contrasting color, see Sellers, 289 Cal. Rptr. 3d at 11–12; Long, 200 Cal. Rptr. 3d at 126, it was in white coloring and a small font and did not have the hallmarks of a hyperlink—i.e., if a consumer did not happen to hover their cursor over it, they might not know it is a link because the text was not “blue or underlined or highlighted in a way [one might] expect from hyperlinked text.” Valiente, 2023 WL 6213583, at *9 n.4. In all, the “Terms of Use” hyperlink was easy to miss due to the distracting website and large green call-to-action buttons that were nowhere near the terms.
Interesting, no?
Ruling seems to suggest browsewrap WOULD have been enforced had the hyperlink been more conspicuous and perhaps if the website had otherwise mentioned the terms of use link.
The Court also rejected the Defendant’s argument the consumer accepted arbitration by moving through the webflow submission process via a “clickwrap” agreement.
The button at issue looked like this:
In the court’s view there was simply nothing on the button indicting acceptance of the terms of use or abitration:
This language makes clear that Valiente agreed to certain things by clicking “Go To Step #2”; but it was not terms that might be found in a different “Terms of Use” section of the website, it was “consent to receive from Nexgen emails, calls, and SMS text messages at any time, which could result in wireless charges, at the number provided above.” The language says nothing about arbitration, nor about any other conditions outside the express terms
Tough to disagree. Because the flow did not specifically reference arbitration the court would not enforce the term.
That means the defense has to face class litigation below. Not good.
