339 So.3d 481
Fla. Dist. Ct. App.2022Background
- Jane Doe visited a Massage Envy franchise in Winter Garden, Florida, for a massage and completed electronic intake forms on a tablet provided by the franchisee (MEWG).
- The intake included a “My Consent” section with a checkbox labeled “I agree and assent to the Terms of Use Agreement,” where the phrase “Terms of Use Agreement” was a hyperlinked 16-page scrollable TOU.
- The TOU’s first page contained a bold, all-caps notice that it included a binding arbitration provision; Doe did not click the hyperlink and instead checked the box without reading the TOU.
- Months later Doe sued Massage Envy, MEWG, and her therapist alleging sexual assault; Massage Envy moved to stay litigation and compel arbitration based on the TOU.
- The trial court denied the motion to compel; Massage Envy appealed, arguing a valid arbitration agreement existed. The appeal addressed only whether a valid written agreement to arbitrate was formed.
- The Fifth District held the clickwrap TOU gave sufficient notice and mutual assent to arbitration and reversed, instructing the trial court to grant the motion to compel arbitration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a valid written arbitration agreement exists | Doe: Clicking the box did not put her on notice she was agreeing to the TOU or its arbitration clause; she only intended to assent to the immediate "My Consent" items | Massage Envy: The setup was a clickwrap; the checkbox expressly referenced the TOU (hyperlinked) and the TOU’s first page conspicuously disclosed the arbitration clause, so Doe manifested assent by clicking | The court held a valid clickwrap agreement existed: the hyperlink and checkbox provided sufficient inquiry notice and Doe manifested assent by clicking; arbitration agreement enforceable |
Key Cases Cited
- Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999) (elements for compelling arbitration and requirement of mutual assent)
- Phx. Motor Co. v. Desert Diamond Players Club, Inc., 144 So. 3d 694 (Fla. 4th DCA 2014) (contract-formation principles apply to arbitration agreements)
- Vitacost.com, Inc. v. McCants, 210 So. 3d 761 (Fla. 4th DCA 2017) (distinguishing browsewrap and clickwrap; enforceability depends on conspicuous notice and assent)
- MetroPCS Commc’ns v. Porter, 273 So. 3d 1025 (Fla. 3d DCA 2018) (providing hyperlink can put a user on inquiry notice of arbitration clause)
- Sapp v. Warner, 141 So. 124 (Fla. 1932) (failure to read a document does not negate notice)
- Muchesko v. Muchesko, 955 P.2d 21 (Ariz. Ct. App. 1997) (mutual assent required to form contract)