TWO BUTTONS, NO EFFECT: Court Refuses to Compel Arbitration In TCPA Suit Where Webform Had Two Submit Options

Quick one for you this a.m. TCPAWorld.

In Morchan v. Mason Reed, Inc. 2023 WL 5266322 (S.D. Fl. Jul. 19, 2023) the court denied arbitration in a putative FTSA and TCPA class action.

The consumer had allegedly visited a website and clicked a “confirm booking” button. Problematically, however, there were two buttons on the page–one at the top and one at the bottom of the page.

While the button at the bottom was near the terms and conditions disclosure that contained the arbitration provision, the one at the top was not. And that was a problem for the Court:

Here, Defendant has not offered, and the Court is not aware, of any evidence that shows Plaintiff actually saw Defendant’s terms, including the arbitration agreement. As in Lopez, Defendant’s website contains two buttons, one at the very top of the page and one at bottom, whereby a consumer could confirm their appointment. However, the button at the top of the page is not accompanied by Defendant’s hyperlinked terms and conditions, like at the bottom of the page. Thus, it is not at all clear whether Plaintiff even had an opportunity to view Defendant’s terms, including its arbitration agreement, before she clicked “Confirm Booking” at the top of the website. As it is unclear whether Plaintiff ever saw Defendant’s terms, it is clear she did not unambiguously manifest her assent to be bound by those terms. Because Defendant did not unambiguously manifest her assent to be bound by Defendant’s terms, including the arbitration agreement, Defendant’s Motion will be denied.

Get it?

Because the Plaintiff apparently clicked only the top button there was no evidence that the consumer had seen the disclosures and the distance between the button and the disclosure did not afford reasonable notice.

Have to say I think this ruling makes sense. A defendant must show that the consumer either actually saw the disclosure or had reasonable notice of the disclosure based on the format of the page. Where the button and the hyperlink are a whole page-length apart a court is highly unlikely to find reasonable notice. And since the Defendant didn’t have evidence the Plaintiff actually saw the disclosure well, hey lose.

Something to be aware of.

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