554 F.Supp.3d 1252
S.D. Fla.2021Background
- Fridman sued 1-800 Contacts alleging its website (via Quantum Metric session-replay software) recorded keystrokes and sensitive data, bringing FSCA and invasion-of-privacy claims as a putative class action.
- 1-800 Contacts moved to compel individual arbitration and to strike class allegations based on an arbitration clause and class-waiver in its Website Terms of Service; the case was removed under CAFA.
- Undisputed facts: Fridman opened an account in January 2019 and purchased again December 25, 2020; the Website pages (including the order summary) contained a hyperlink to the Terms at the bottom of pages.
- Fridman testified he never saw or agreed to the Terms; 1-800 Contacts relied on the presence and location of the hyperlink to argue constructive notice.
- The key legal question was whether, under Florida law, the browsewrap-style link was sufficiently conspicuous (or gave actual notice) to create mutual assent to the arbitration and class-waiver provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law for contract-formation question | Florida law governs because formation is disputed and Fridman is in Florida | Utah law should govern under the Terms' choice-of-law clause | Florida law applies; court may not apply Terms' choice-of-law when formation is contested |
| Existence of a binding website agreement (browsewrap) | Fridman never saw or agreed to the Terms; no meeting of minds | Use of the Website and available hyperlink show assent | No actual assent; court finds no binding agreement |
| Constructive notice / conspicuousness of hyperlink | Link was small, at page bottom, required scrolling; buyer could complete purchase without seeing it | Link was available on homepage and order summary and therefore sufficient to put user on inquiry notice | Link was not sufficiently conspicuous; no constructive notice |
| Enforceability of arbitration and class-waiver | Unenforceable because Fridman never agreed to Terms | Arbitration clause and class waiver govern and require individual arbitration | Motion to compel arbitration denied; claims proceed in court (class allegations not stricken on this ground) |
Key Cases Cited
- Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (federal policy favoring enforcement of arbitration agreements)
- Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (arbitration-favoring jurisprudence and enforcement principles)
- Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351 (11th Cir.) (FAA embodies a liberal federal policy favoring arbitration)
- Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010) (court decides arbitrability questions when formation disputed)
- First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (apply ordinary state contract law principles to determine whether parties agreed to arbitrate)
- Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir.) (browsewrap enforceable only if hyperlink is sufficiently conspicuous to create inquiry notice)
- Vitacost.com, Inc. v. McCants, 210 So. 3d 761 (Fla. 4th DCA 2017) (hyperlinks at bottom of pages that buyers need not view do not create assent)
- Hearn v. Comcast Cable Commc’ns, LLC, 992 F.3d 1209 (11th Cir.) (motions to compel arbitration are treated under a summary-judgment-like standard)
- Babcock v. Neutron Holdings, Inc., 454 F. Supp. 3d 1222 (S.D. Fla.) (clarity and conspicuousness of web interface control constructive-notice inquiry)