Those of you who participated in Lead Generation World heard me discuss the big 2020 trend of courts refusing to enforce online disclosures due to perceived issues with website layout.
Things like “under the button” disclosures and distracting visuals have often been described as defeating a show of assent to disclosure terms in this unfortunate series of cases.
Well, 2022 brought a few cases that determined website disclosures were fine. Yesterday I reported on a big Efinancial win, and today we have a great victory from a cruise company.
In Barney vs. Grand Caribbean Cruises, Inc., CAS No. 21-CV-61560-RAR, 2022 US Dist. LEXIS 8263 (SD Fl. Jan. 17, 2022), Respondent requested the application of an arbitration provision on its website arguing that Plaintiff had accepted the terms and conditions by submitting a contest entry form.
Predictably, the plaintiff argued that the disclosures were unenforceable because the website layout was inadequate, in particular the font was too small and the terms excessively long.
The Court was not impressed.
Noting that the disclosure was clearly legible and above the button–and it required a checkbox – the Court simply refused to consider the claimant’s argument that he did not know he was accepting consent and arbitration. Here is the analysis:
As you can see, the Court found the layout perfectly appropriate and was particularly moved by the presence of the opt-in checkbox. Although many cases have recently mandated disclosures WITHOUT checkboxes, they remain preferred by the courts.
I think Barney represents a case of a fairly clearly enforceable provision. The text above the button coupled with the radial button and clear articulation of accepted terms made this an easy case for the court.
I’ll note that TCPA consent is related to terms and conditions jargon – I don’t know to like that since the TCPA disclosure should be “separately signed”. But consumer agreement that they are over 25 is a good idea – helps protect against claims that minors are giving consent illegally.