For the second time this month, the Court of Appeals for the Eleventh Circuit has overturned a lower court’s denial to compel arbitration in a Fair Credit Reporting Act case, addressing the process through which the plaintiff agreed to a website’s terms and conditions, a process known as “clickwrapping.”
The background: The plaintiff was involved in a data breach and signed up for a free year of credit monitoring that was offered by the defendant.
- Years later, upon reviewing her credit report and finding inaccurate entries, she sued under the FCRA. The defendant, in turn, moved to compel arbitration, arguing that the plaintiff had agreed to arbitrate any disputes when she enrolled in the monitoring service.
- Å District Court judge denied the defendant’s motion to compel arbitration, holding that the evidence submitted was insufficient to demonstrate the plaintiff’s agreed to the arbitration provisions of the agreement she clicked on when she signed up for the service.
- The court took issue with a declaration from a company representative that described the standard enrollment process and associated screenshots but did not explicitly confirm what the plaintiff herself saw during sign-up.
The ruling: The Appeals Court reversed that decision, finding the evidence submitted was in line with precedent and satisfied the burden of proving mutual assent under Georgia law.
- Specifically, the declaration submitted by the defendant described his position, his access to relevant business records, and detailed the enrollment process — including that the plaintiff clicked a “Submit Secure Order” button located directly beneath a hyperlinked Terms of Use agreement.
- The court emphasized that under Georgia law, assent is judged by an objective standard: what a reasonable person would understand, and failure to read terms does not excuse a party from being bound by them.
- The court quoted from a prior Georgia case, noting: “These terms are clear against the white background and the blue hyperlink draws attention to the terms and conditions, such that a reasonable smartphone user would know that more information would be found if he clicked upon the hyperlink.”
- Moreover, the Eleventh Circuit pointed to its recent decision in Lamonaco v. Experian, where similar evidence from the same declarant was found sufficient.
