AVOIDABLE MISTAKE: Court Holds Westgate Resorts Website Popup Not Sufficient to Give Consumers Reasonable Notice of Terms–If They Had Only Followed Queenie’s 10

Not long ago Puja put together the famous “Queenie’s 10.”

A critical one-sheeter providing the TCPAWorld with a checklist to assess the format of webforms to determine whether a court is likely to enforce the terms on a website.

QUEENIE’S TEN: Finally An Authoritative Consent Format Guide—Queenie’s Ten is the Checklist You’ve Been Looking For!

Queenie’s 10 has become incredibly popular and tons of you have requested a copy.

Little wonder since the issues raised in Queenie’s 10 continue to “pop up” over and over again.

Ok, bad pun.

In McMillan v. Westgate, 2026 WL 487365 (C.D. Cal Feb 5, 2026)  the court refused to enforce an arbitration provision found within terms and conditions that were supposedly accepted by consumers upon encountering a website “pop up.”

In the court’s view the pop up simply did not provide adequate notice to the consumer:

First, both the font size of the Terms Notice and Pop-Up Message design do not provide conspicuous notice of the terms and
conditions as the Court cannot “fairly assume that a reasonably prudent Internet user would have seen it.” Id. Like in Berman,
the Terms Notice is in a font considerably smaller than the rest of the website elements. Id. at 856-57. This is exacerbated by the
“overall design of the webpage.” Id. at 857. The webpage, which includes considerably larger text both above and below the
Terms Notice, naturally draws the eyes away from the critical Terms Notice towards the other design elements, deemphasizing
the critical components. See, e.g., Id. (“Website users are entitled to assume that important provisions—such as those that
disclose the existence of proposed contractual terms—will be prominently displayed, not buried in fine print.”). Moreover,
even if a user sees the center paragraph that includes the Terms Notice, that notice is buried in a block of text among several
other notices. The center paragraph includes notice about recurring automated text messages, potential information sharing in
accordance with the website’s Privacy Policy, possible messaging and data rates, and, finally, the Terms Notice. All these notices
are listed in the same small font and none are distinguished or set apart from one another. Taken together, the Court cannot
conclude that the terms and conditions were reasonably conspicuous from the Terms Notice.

Wow.

But the court was not finished:

Second, “while it is permissible to disclose terms and conditions through a hyperlink, the fact that a hyperlink is present must
be readily apparent.” Id. To be conspicuous, a webpage must do more than underscore hyperlinked text. Rather, the text must
be set apart to denote the existence of a hyperlink through other design elements, including a contrasting font color or use of
capital letters. Id. As was the case in Berman, no additional design elements are present here. The Terms Notice only signals the
hyperlinked terms and conditions through an underscore, or a design element the Berman court expressly held is insufficient
alone. In sum, the Court cannot conclude that the website operators “put users on notice of the terms to which they wish to
bind consumers.” Nguyen, 763 F.3d at 1179.

So there you go.

Cluttered page, small font, blocks of text, no colorful hyperlinks= unenforceable form.

If only Westgate had followed Queenie’s 10 it wouldn’t be facing a TCPA class action right now.

We’ll keep an eye on this.

And its not too late for YOU to request a copy of Queenie’s 10 and the equally valuable 2026 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance!

FIRST DAY OF CZARMAS 2026: THE 2026 TROUTMAN AMIN, LLP TCPA ANNUAL REVIEW, Presented By Contact Center Compliance is now FREE for the Asking!!!!!!!!!!!

Chat soon.