December 8, 2021

Volume XI, Number 342


December 07, 2021

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December 06, 2021

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Above The Button Disclosure Not Enough: Court Denies Arbitration in TCPA Suit Citing Small Disclosure Font, Busy Website Page

Well folks the trend of courts pushing back against enforcing online disclosure agreements continues.

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-HSG2020 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.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 302

About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...