Vitacost.com, Inc. v. McCants
210 So. 3d 761
Fla. Dist. Ct. App.2017Background
- Plaintiff bought dietary supplements online and later sued seller in products-liability action alleging liver injury.
- Seller moved to compel arbitration based on an arbitration clause contained in website "terms and conditions."
- The terms were accessible only via a hyperlink; throughout shopping the link sat at page bottom and on checkout was labeled "terms and conditions" in small text near bottom/right.
- Plaintiff submitted an affidavit denying actual knowledge of the terms; his counsel replicated the checkout flow and produced matching screenshots.
- Trial court found the hyperlink not conspicuous enough to put plaintiff on inquiry notice and denied the motion to compel arbitration; seller appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether website "terms" (including arbitration clause) were incorporated into sales contract | Terms not incorporated; plaintiff lacked actual knowledge and was not on inquiry notice | Terms incorporated via hyperlink (browsewrap) accessible during checkout, giving inquiry notice | Not incorporated; arbitration clause unenforceable because link was not conspicuous and purchaser was not put on inquiry notice |
| Whether a "browsewrap" hyperlink can bind an online buyer without affirmative assent | Browsewrap unenforceable absent actual knowledge or conspicuous notice | Hyperlink at bottom/right during checkout and blue font sufficed to notify purchaser | Browsewrap enforceable only with actual knowledge or sufficiently conspicuous hyperlink; factual showing here failed |
| Whether Florida law permits incorporation by reference via website link without explicit language in the contract | Florida requires specific incorporation and sufficient description of collateral document | Seller argued website presentation satisfied incorporation requirements | Florida law controls: seller did not specifically state sale was subject to the terms nor sufficiently describe them; incorporation not established |
| Whether messages like "make sure everything looks good" suffice to direct buyer to terms | Such message does not direct buyer to review or accept terms | Seller relied on this message as notice to review order/terms | Insufficient; not an admonition to review or assent to terms |
Key Cases Cited
- Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir.) (internet-contract principles governed by ordinary contract formation rules)
- Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir.) (mutual manifestation of assent required for online contracts)
- Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir.) (distinguishing browsewrap and clickwrap; enforce browsewrap only with actual knowledge or conspicuous notice)
- Hubbert v. Dell Corp., 359 Ill.App.3d 976 (Ill. App.) (terms incorporated where webpages expressly stated sales were subject to seller's Terms and Conditions of Sale)
- BGT Grp., Inc. v. Tradewinds Engine Servs., LLC, 62 So.3d 1192 (Fla. 4th DCA) (to incorporate a collateral document, agreement must specifically provide for incorporation and sufficiently describe the document)
- Berkowitz, Dick, Pollack & Bryant v. Smith, 49 So.3d 309 (Fla. 4th DCA) (standard of appellate review for orders granting or denying motions to compel arbitration)