This latest case might be the furthest stretch yet in terms of a court deeming clickwrap disclosures to be insufficiently conspicuous to afford constructive notice to the party.
The case is Shultz v. Ttac Publ, Case No. 20-cv-04375-HSG, 2020 U.S. Dist. LEXIS 198834 (N.D. Cal. October 26, 2020). The website at issue contained a pre-checked disclosure box above the button. The language was admittedly quite small, and in the context of the overall page—best described as “busy”—the Court found the disclosure simply was not readily apparent to a consumer viewing the page.
Here’s what the website looked like:
The Court found as a matter of law that the disclosure did not afford constructive notice because: i) the hyperlink is in light blue but not underlined, highlighted, in all caps, or otherwise set off from the page; ii) the promotional video playing in the top left corner of the webpage was distracting and the volume appears to be at its maximum level; iii) the green checkmarks on page are several times larger than the terms and conditions hyperlink, and obscure the import of the checkmark beside the hyperlink.
This appears to be the first case to hold that the presence of a video—or a loud playing soundtrack—might prove sufficient to thwart notice of terms and conditions. The court also took a dim view of the pre-checked box, suggesting that it converted the disclosure from clickwrap to brose wrap—but that doesn’t sound quite right.
In any event, take notice folks—courts are requiring TRANSPARENCY. If you want your arbitration disclosures enforced, website disclosures must be truly obvious to consumers. Always happy to chat this through.