Arbitration agreements are getting awful hard to enforce these days.
Not only have courts been undertaking a decidedly careful review of website terms and layouts before enforcing clauses, they continue to credit claims by consumers that they never visited a website to begin with.
In Bell v. Royal Seas Cruises, CASE NO. 19-CIV-60752-RAR, 2020 U.S. Dist. LEXIS 172255 (S.D. Fl. September 21, 2020), for instance, the Defendant convinced the Court that the website terms and conditions were sufficiently conspicuous to properly result in a binding arbitration agreement when a consumer clicked “continue” on the website. Nonetheless, it still faces a bench trial on the issue of arbitrability because the Plaintiff denied ever encountering the website to begin with.
The website at issue in Bell is http://www.consumerproductsusa.com run by RewardsZone USA, LLC. It submitted a declaration that somebody visited the website on September 11, 2018 and “provided Plaintiff’s correct name, phone number, mailing address, email address, and date of birth.” The website included an arbitration provision, which the Court determined was inescapably obvious to website visitors:
“Because it is nearly impossible that any user would not see that statement before hitting “Continue,” this design is a far cry far from those wherein “the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them[,]” which have been repeatedly deemed to provide insufficient notice under Florida law. The Court therefore concludes that the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice of the Terms and Conditions, and clicking “Continue” directly below the relevant statement is sufficient to constitute assent to the Terms and Conditions. Consequently, there is no genuine dispute of material fact as to whether the person who clicked “Continue” on the Website assented to the Terms and Conditions, which included mandatory arbitration.
Nonetheless, there is a question of fact as to who “the person” that clicked on the “Continue” button actually was. And Royal Seas will be put to its proof on the subject:
A bench trial will be held pursuant to 9 U.S.C. § 4 to determine the limited issue of whether Plaintiff, or someone authorized by Plaintiff, visited the website in question and clicked “Continue” on September 11, 2018 at approximately 11:09 a.m. EST. These proceedings will commence on Tuesday, October 27, 2020 at 10:00 AM, in Fort Lauderdale, Florida.
We’ll definitely keep an eye on this.