684 F.Supp.3d 871
W.D. Wis.2023Background
- Plaintiff Pilar Domer bought paint from Menards’ website and selected employee-assisted in‑store pickup, which triggers a $1.40 per‑item handling fee that she alleges was not disclosed.
- At checkout a notice stated “By submitting your order you accept our Terms of Order” with a hyperlink labeled “Terms of Order Information”; the Terms included an arbitration clause. Domer says she did not see the notice or click the link.
- Menards moved to compel arbitration; Domer amended her complaint to drop breach‑of‑contract claims but kept unjust enrichment and state consumer‑protection claims.
- The court applied Wisconsin law (parties’ choice) and the Federal Arbitration Act standard for compelling arbitration.
- The court held Menards’ checkout provided reasonable notice of the Terms (noting bold “Please note,” conspicuous hyperlink, uncluttered page, and proximity to order details) and that Domer manifested assent by submitting the order.
- The court held Domer’s remaining claims “arise out of” the purchase contract and fall within the broad arbitration clause; the case was dismissed without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Domer objectively agreed to arbitrate (formation/notice) | Domer did not see the notice or terms and thus did not assent | Menards’ checkout gave reasonable notice (“By submitting your order you accept our Terms of Order” + hyperlink), so completing purchase manifested assent | Court: Reasonable notice was provided and assent was manifested by submitting the order; agreement valid |
| Whether Domer’s unjust enrichment and consumer‑protection claims fall within the arbitration clause (scope) | These claims are not contract claims and thus lie outside a purchase‑contract arbitration clause | The clause covers “any and all controversies or claims arising out of or relating to this contract,” which is broad enough to include these claims | Court: Claims arise out of the purchase contract and must be arbitrated |
Key Cases Cited
- Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682 (7th Cir. 2005) (FAA motion to compel arbitration framework)
- Wells Fargo Bus. Credit v. Hindman, 734 F.3d 657 (7th Cir. 2013) (objective manifestation of assent controls under Wisconsin law)
- Sgouros v. TransUnion Corp., 817 F.3d 1029 (7th Cir. 2016) (factors for assessing online notice and objective assent)
- Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (online terms: conspicuous prompt and link considerations)
- Nicosia v. Amazon, Inc., 834 F.3d 220 (2d Cir. 2016) (assess notice in light of the whole webpage)
- Sweet Dreams Unlimited, Inc. v. Dial‑A‑Mattress Int’l, Ltd., 1 F.3d 639 (7th Cir. 1993) (broad “arising out of” language covers related disputes)
- Dr. Robert L. Meinders, D.C., Ltd. v. United Healthcare Servs., 7 F.4th 555 (7th Cir. 2021) (dismissal, not stay or transfer, is proper when all claims are arbitrable)