Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN PILAR DOMER, Plaintiff, OPINION and ORDER
v. 22-cv-444-jdp MENARD, INC., Defendant.
In this proposed class action, plaintiff Pilar Domer alleges that defendant Menard, Inc., the owner of Menards home improvement stores, adds a hidden fee to items purchased on the Menards website that are picked up in-store. Domer’s initial complaint asserted claims for unjust enrichment, breach of contract, and violations of state consumer protection statutes. Dkt. 1-1. Menards moved to compel Domer to arbitrate her claims, Dkt. 6, and Domer responded by submitting an amended complaint that omitted her claims for breach of contract. Dkt. 11. The court denied Menards’ arbitration motion without prejudice. Dkt. 18.
Before the court is Menards’ renewed motion to compel arbitration directed at Domer’s amended complaint. Dkt. 19. Menards contends that the arbitration clause in Menards’ terms of service applies to all of Domer’s claims, not just her now-abandоned claims for breach of contract. Domer counters that she did not agree to arbitrate her claims, and that even if she did, her remaining claims fall outside of the scope of the agreement. The court will grant Menards’ motion. Menards’ website gave Domer reasonable notice that shе was accepting Menards’ terms of service by placing an order, so Domer agreed to the arbitration clause by completing her purchase. Domer’s consumer protection and unjust enrichment claims related to her purchase fall within the broad language of the arbitration clаuse.
BACKGROUND
The facts relevant to the motion are not in dispute. This lawsuit arises from Domer’s purchase of a can of paint from the Menards website. Menards gives customers three options for receiving their online purchase: customers may (1) have the item shipped to them; (2) pay online, go to thе Menards’ store, and locate the item on the shelf themselves; or (3) have a Menards employee locate the item and prepare it for in-store pickup. If a customer chooses the third option, Menards charges the customer a handling fee of $1.40 per item. Domer electеd to have an employee prepare her item for pickup. She alleges that Menards did not disclose that selecting this option would incur an additional fee.
When Domer went to complete her purchase, she was presented with a checkout page. Menards submitted a screenshot of the checkout page from a different order to illustrate how the page is organized:
Dkt. 21-1, at 2. Domer does not dispute that the screenshot accurately represents the layout of the checkout page when she completed her purchase in April 2021.
Near the bottоm of the page is a two-line notice that begins “Please note” in a bold font. The first two sentences of the notice are rules about the use of gift cards. The third sentence provides that “By submitting your order you accept our Terms of Order.” Id. Underneath the notice are two hyperlinks that read “View Return Policy” and “Terms of Order Information.” Clicking the “Terms of Order Information” opens up a textbox with the Terms of Order. Among other things, the Terms of Order provide that the purchaser “agrees that any and all controversies or claims arising out of or relating to this contract” must be resolved in arbitration. Dkt. 21-2, at 2. Domer did nоt see the notice or the Terms of Order Information hyperlink when she went to complete her purchase.
This court has jurisdiction over this proposed class action under the Class Action Fairness Act, 28 U.S.C. § 1332(d), because the amount in controversy plausibly exceeds $5,000,000 and there is at least minimal diversity between the parties: Domer is a citizen of Indiana and Menards is a citizen of Wisconsin. See Dkt. 1, ¶¶ 7–8.
ANAYLSIS
Under the Federal Arbitration Act, the court will compel arbitration if three conditions
are present: (1) a valid, written agreement to arbitrate; (2) a dispute within the scope of the
arbitration agreement; and (3) а refusal to arbitrate. 9 U.S.C. § 4;
Zurich Am. Ins. Co. v. Watts
Indus., Inc
.,
A. Valid agreement to arbitrate
Whether an agreement to arbitrate has been formed is governed by state-law principles
of contract formation.
Gore v. Alltel Communs., LLC
,
It is undisputed that Menards’ Terms of Order contained an arbitration clause. And Domer does not dispute the general principle that a customer can manifest her assent to contract by completing a purchase on a business’s website. See Dickman v. Vollmer , 736 N.W.2d 202, 253 (Wis. Ct. App. 2007) (“An implied contract may bе established by the parties’ conduct”). But Domer contends that she did not assent to Menards’ Terms of Order by submitting her order on Menards’ website.
In determining whether Domer agreed to Menards’ Terms of Order, the court must
consider whether Domer objectively manifested her assent to contract through her actions; her
subjеctive beliefs about the terms of the agreement are immaterial.
Wells Fargo Bus. Credit v.
Hindman
,
In deciding whether a website provided reasonable notice of its terms of service, courts
have considered factors including (1) whether there is a clear prompt directing thе purchaser
to read the terms; (2) the size of the prompt; (3) use of a bold font or contrasting colors; (4) the
visual clarity of the website’s layout; (5) whether the user can see the link to the terms without
having to scroll; and (6) the spatial proximity between the notice and the mechanism for
manifesting assent, such аs a purchase button.
See Sgouros
,
The court does not endorse Menards’ website as the ideal presentation of its terms. But
applying those factors, the court concludes thаt Menards’ website provided reasonable notice
of the terms governing Domer’s purchase. The website provides a clear prompt directing the
user to read the Terms of Order. Text at the bottom of the screen expressly states that “By
submitting your order you accept our Terms of Order.” The hyperlink to “Terms of Order
Information” is directly beneath that notice. Other courts have concluded that similar
language, accompanied by a hyperlink, provided reasonable notice that the user was assenting
to the linked terms.
See Acaley v. Vimeo, Inc.,
The notice and hyperlink are also visually conspicuous. The notice and hyperlink are
smaller than the headers on the webpage, such as “Billing Information” and “Order Summary,”
but they are the same size as the body text used underneath those headers. The notice begins
“Please note” in a bold font, which directs the reader’s attention to it. Although the first two
sentences of the notice are about gift cards, the bold “Please note” would encourage a
reasonable user to read through to the end of the notice. The hyperlink to the “Terms of Order
Information” is directly underneath the notice, and the green hyperlink text stands out from
the white background and the black text above it. The page is relatively uncluttered: there are
few links other than the link to the Terms of Order.
Cf. Nicosia
,
The most significant problem that Domer identifies with the webpage is that the notice
and hyperlink are not close to the “Submit Order” button. The purchase button is in a column
near the top right side of the screen, and the notice and hyperlink are placed near the bottom
left. Domer contends that Menards’ webpage is similar to the purchase screen in
Wilson v.
Redbox Automated Retail, LLC
,
Domer resists this conclusion and provides two additiоnal arguments for why she did not have reasonable notice of the arbitration agreement. First, Domer contends that she did not have notice of the terms because the website did not require her “to review or scroll through the Terms to complete her order.” Dkt. 23, at 19. But a website can provide reasonable notice of its terms of order by providing a hyperlink to the relevant terms. See Acaley , 464 F. Supp. 3d at 968. Menards was not required to ensure that Domer actually reviewed the Terms of Order. Users “are free to sign legal documents without reading them, but the documents are binding whether read or not.” Novitsky v. Am. Consulting Eng’rs, L.L.C ., 196 F.3d 699, 702 (7th Cir. 1999). Menards merely needеd to provide reasonable notice that Domer was accepting the Terms of Order by completing her purchase. Menards did so by providing notice that “By submitting your order you accept our Terms of Order” and including a link to the terms.
Second, Domer contends that Menards did not provide reasonable notice that the
Terms of Order included an arbitration clause. The Terms of Order are laid out in two large
paragraphs in a popup box. The formatting makes the terms somewhat difficult to read, and
the arbitration clause is not bolded or otherwise highlighted. But Domer provides no authority
that eаch individual term in a terms of service document must be conspicuous if the user has
reasonable notice that they’re accepting
all
of the terms. The notice and hyperlink were
sufficient to place a reasonable person on notice that there were terms and conditions attаched
to the purchase and “that it would be wise to find out what the terms and conditions were
before making a purchase.”
Sgouros
,
Mеnards provided reasonable notice that a user accepted the Terms of Order by completing their purchase. By going through with her purchase, Domer manifested her assent to those terms, including the arbitration agreement.
B. Scope of the arbitration agreement
In the alternative, Domer contends that her consumer protection and unjust enrichment claims fall outside the scope of the arbitration agreement. The arbitration clause provides that Domer will arbitrate “any and all controversies or claims arising out of or relating to this contract[.]” Domer argues that the clause does not encompass her remaining claims because they are not about the terms of her purchase contract with Menards.
This argument fails. “[O]nce it is clear the parties have a contract that provides for
arbitration of some issues between them, any doubts concerning the scope of the arbitration
clausе are resolved in favor of arbitration.”
Miller v. Flume
, 139 F.3d 1130, 1136 (7th Cir.
1998). The phrase “arising out of” is an “expansive” clause that “broadly . . . include[s] all
manner of claims tangentially related to the agreement, including claims of fraud,
misrepresentation, and other torts involving both contract formation and performance.”
Welborn Clinic v. MedQuist, Inc
.,
All of Domer’s claims are related to her сontract of purchase with Menards: Domer
agreed to pay Menards money, and Menards provided her with a can of paint in exchange. The
theory behind her consumer protection and unjust enrichment claims is that Menards misled
her about the price that she would pay for that purchase. Those claims could easily be recast
as breach of contract claims based on an alleged misrepresentation of the terms of the purchase.
Domer cannot avoid arbitrating her remaining claims merely because they are brought under
different causes of action.
See Kroll v. Doctor’s Assocs
.,
CONCLUSION
The court concludes that Domer assented to the arbitration clause in Menards’ Terms
of Order and that her claims fall within the scope of the clausе. Menards asked the court to
stay rather than dismiss the case, but this court’s general practice is to dismiss the case if all of
the claims are arbitrable.
See Rock Hemp Corp. v. Dunn
,
ORDER
IT IS ORDERED that defendant Menard, Inc.’s renewed motion to compel arbitration, Dkt. 19, is GRANTED. The case is DISMISSED without prejudice.
Entered July 26, 2023.
BY THE COURT:
/s/
________________________________________ JAMES D. PETERSON District Judge
Notes
[1]
See Wells Fargo Bus. Credit v. Hindman
, 734 F.3d 657, 667 (7th Cir. 2013) (“objective
manifestations of assent” are controlling under Wisconsin law);
Sgouros v. TransUnion Corp
.,