Vincent v. National Debt Relief LLC, 1:24-cv-00440

Plaintiff Gilda Vincent, a California resident, accessed National Debt Relief LLC’s (NDR) website multiple times and alleges that the company installed a tracking tool (Claritas TRKN Tracker) which captured her IP address without her consent, potentially violating the California Invasion of Privacy Act (CIPA).
Vincent brought a class action lawsuit in the Southern District of New York on behalf of similarly situated California residents whose IP addresses were collected by the tracker when they accessed the website.
NDR moved to compel arbitration and stay the action, arguing that its website's Terms of Service—which includes an arbitration clause—bind all visitors.
The Terms of Service and arbitration provision are only accessible through a hyperlink located at the bottom of the website's homepage, after scrolling past multiple sections.
The arbitration agreement offers an opt-out mechanism, but there is no evidence plaintiff had actual notice of either the terms or the arbitration provision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Vincent bound to the arbitration clause by merely entering the website?	She had no notice of the terms or arbitration clause prior to accessing the site.	Entry to the website itself was sufficient to manifest assent to the terms, including arbitration.	No; mere entry, without prior notice, does not constitute unambiguous assent.
Was continued use or return visits to the website sufficient to bind Vincent to arbitration?	Use or repeated visits do not create assent where the terms are not reasonably conspicuous.	Remaining on or returning to the site shows continued acceptance of the terms.	No; inquiry notice lacking and terms were not conspicuous. Prior use does not infer knowledge or agreement.
Does failing to opt out of the arbitration agreement constitute assent?	Opt-out cannot apply where there is no notice of the agreement to begin with.	Failure to exercise the clear opt-out constitutes assent to arbitration.	No; absent inquiry notice of the arbitration terms, failure to opt out is not assent.
Was the website’s placement and presentation of the terms sufficient for constructive notice?	The terms and arbitration were buried at the bottom and surrounded by unrelated links.	The hyperlink to terms was conspicuous and stands out in the website design.	No; the hyperlink was not reasonably conspicuous and not sufficiently coupled with user action.

Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004) (traditional contract principles apply online; notice and opportunity to review required for assent)
Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (contract formation online requires conspicuous notice and clear manifestation of assent)
Schnabel v. Trilegiant Corp., 697 F.3d 110 (2d Cir. 2012) (assent requires knowledge or reasonable opportunity to know terms)
Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002) (terms below visible screen do not give reasonable notice and are not binding)