On November 10, 2025, the Eleventh Circuit Court of Appeals affirmed a district court’s denial of a motion to compel arbitration in a case involving alleged violations of the Telephone Consumer Protection Act (TCPA) and the Florida Telephone Solicitation Act (FTSA). Defendant, an online retailer, argued that the plaintiff agreed to arbitrate disputes by interacting with its website and confirming his email address.
1. Notice and Assent in Online Agreements
The court’s analysis focused on whether the plaintiff was given sufficient notice of the website’s “Terms of Use”—which contained the arbitration provision—and whether he manifested assent to those terms. The defendant advanced three theories of contract formation: browsewrap, clickwrap, and double opt-in. The court found each theory lacking due to insufficient notice and lack of clear mutual assent.
- Browsewrap Agreements: The court reiterated that browsewrap agreements—where terms are accessible via hyperlink but users are not required to affirmatively acknowledge them—are only enforceable if the hyperlink is sufficiently conspicuous to put a reasonably prudent user on notice. In this case, the “Terms of Use” hyperlink was buried at the bottom of a cluttered webpage, in small, white font, and not highlighted or otherwise made obvious. The court found that a reasonable user would not have been alerted to its presence, and there was no textual notice that use of the website constituted agreement to the terms.
- Clickwrap Agreements: Clickwrap agreements, which require users to affirmatively click to accept terms, are generally enforceable. However, the court found that the website’s “Go To Step #2” button only referenced consent to receive marketing communications, not to the “Terms of Use” or the arbitration provision. There was no indication that clicking the button constituted agreement to arbitrate, nor was the user directed to review or acknowledge the terms.
- Double Opt-In Theory: The defendant argued that the plaintiff’s confirmation of his email address after purchase constituted a second, affirmative agreement to the terms. The court rejected this argument, noting that the defendant failed to provide evidence of what the confirmation email or process entailed, and there was no indication that it referenced the arbitration provision or required agreement to the “Terms of Use.”
2. Mutual Assent Remains Central to Enforceability
Both Florida and California law require mutual assent for contract formation. The court emphasized that arbitration is strictly a matter of consent, and parties cannot be compelled to arbitrate unless they have clearly agreed to do so. The decision underscores that businesses bear the burden of proving the existence of an enforceable arbitration agreement, and that doubts about whether an agreement to arbitrate exists are resolved against the party seeking arbitration.
HERIBERTO VALIENTE, v. NEXGEN GLOBAL, LLC, No. 23-13308, 2025 WL 3140480 (11th Cir. Nov. 10, 2025).
