Cox v. ConsumerInfo.com, Inc.Cox v. ConsumerInfo.com, Inc.
- Reporters:
- Before:
- King, Berner, Floyd (per curiam)
ConsumerInfo.Com, Inc. (CIC) and CIC affiliate Experian Information Solutions, Inc. (together, Defendants) appeal the district court‘s order denying their motion to compel arbitration. For the reasons that follow, we reverse and remand.
I.
Acting on his own behalf and on behalf of a class of similarly situated persons, Plaintiff Joe Cox filed suit in the district court for damages and injunctive relief, alleging that Defendants violated the Fair Credit Reporting Act,
Defendants moved to compel Cox to arbitrate his claims on a non-class basis and attached a declaration from CIC Director of Product Operations Dan Smith. In his declaration, Smith explained that: Cox enrolled in CreditWorks on November 6, 2023; to do so, he had to complete an internet webform requiring him to enter his name, address, phone number, and email address and create a password; after Cox entered his personal information and a password, he had to click a button in the webform labeled “Create Your Account“; this button appeared below the following sentence in the webform: “By clicking ‘Create Your Account‘: I accept and agree to your Terms of Use Agreement, as well as acknowledge receipt of your Privacy Policy“; and the phrase “Terms of Use Agreement”
Cox opposed the motion to compel, supporting his opposition with his affidavit. The affidavit does not challenge Smith‘s statements in the declaration that Cox enrolled in CreditWorks by completing the entries and clicking on the “Create Your Account” button depicted in the webform exhibit and pursuant to the process described in Smith‘s declaration. The affidavit also does not challenge Smith‘s statements in the declaration that the appended exhibits were true and correct representations of the webform and the Terms of Use Agreement that would have appeared and were in effect at the time Cox enrolled in CreditWorks.
The district court denied the motion to compel arbitration without prejudice to permit discovery regarding contract formation. The court determined it could not conclude that Cox had clear notice of the terms of use in the Terms of Use Agreement at the time he enrolled in CreditWorks or assented to that agreement. Defendants timely appealed. See Chorley Enters., Inc. v. Dickey‘s Barbecue Rests., Inc., 807 F.3d 553, 561-62 (4th Cir. 2015) (orders denying motion to compel arbitration without prejudice are immediately appealable).
We review de novo the district court‘s denial of Defendants’ motion to compel arbitration. Austin v. Experian Info. Sols, Inc., 148 F.4th 194, 205 (4th Cir. 2025). The Federal Arbitration Act provides that “[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable.”
“A party‘s burden to show the existence of an agreement to arbitrate is akin to the burden on summary judgment.” Id. at 202 (internal quotation marks omitted). Accordingly, when determining whether parties agreed to arbitrate a given dispute, courts “must employ the summary judgment standard as a gatekeeper.” Id. (internal quotation marks omitted); see
Whether an agreement to arbitrate was formed is “a question of ordinary state contract law principles.” Marshall v. Georgetown Mem‘l Hosp., 112 F.4th 211, 218 (4th Cir. 2024) (internal quotation marks omitted). The parties agree that West Virginia law governs the law of contract formation here. The parties also do not identify any peculiarities of the law of that state departing from the fundamental contract requirements of “competent parties, legal subject matter, valuable consideration and mutual assent.” Beckley Health Partners, Ltd. v. Hoover, 875 S.E.2d 337, 342 (W. Va. 2022) (internal quotation marks omitted). “The fundamental principles of contract law continue to apply despite the fact that the digital age has changed the nature of contract formation.” Austin, 148 F.4th at 206 (internal quotation marks omitted); see State ex rel. U-Haul Co. of W. Va. v. Zakaib, 752 S.E.2d 586, 595 (W. Va. 2013). Under these fundamental principles, “the person asserting the contract‘s existence must demonstrate that the person alleged to be bound by the contract (1) had reasonable notice of an offer to enter into the contract and (2) manifested assent to it.” Austin, 148 F.4th at 206 (citation modified). The parties disagree whether Cox was on notice of an offer to contract and manifested assent to it.
Turning, first, to notice, the parties dispute whether the circumstances surrounding Cox‘s enrollment in CreditWorks1 placed him on reasonable notice of the offer to enter into the Terms of Use Agreement. “In the internet context, the traditional notice inquiry focuses on the design and content of the relevant interface and asks whether it would put a reasonably prudent user on notice of a contract on offer and its terms.” Austin, 148 F.4th at 206 (internal quotation marks omitted). After reviewing this court‘s opinion in Austin, id. at 206-07, we conclude that this standard is satisfied here.
Similar to Austin, the webform Cox does not dispute he used to sign up for CreditWorks informed a user that, “[b]y clicking ‘Create Your Account‘: I accept and agree to your Terms of Use Agreement, as well as acknowledge receipt of your Privacy Policy.” 148 F.4th at 206; J.A. 39, 43.2 As in Austin, “[t]his text was placed in a bold typeface, with ‘Terms of Use’ set off as a blue hyperlink to those terms,” 148 F.4th at 206; J.A. 39, 43. Also as in Austin, “[b]elow this text, also in bold, was language informing the user that it gave [CIC] . . . permission to obtain and provide a credit report and to notify the user of available products and services.” 148 F.4th at 206 (internal quotation marks omitted); J.A. 43. Both the webform here and the enrollment page in Austin “provided that this authorization could be withdrawn at any time by contacting [CIC].” 148 F.4th at 206; J.A. 43. And, in both cases, “below that information, was the button reading ‘Create Your
B.
We thus turn to assent. In West Virginia (as in North Carolina, the jurisdiction at issue in Austin), mutuality is required to form a valid contract. Bluestem Brands, Inc. v. Shade, 805 S.E.2d 805, 810 (W. Va. 2017). “In order for this mutuality to exist, it is necessary that there be a proposal or offer on the part of one party and an acceptance on the part of the other.” Id. (internal quotation marks omitted). “Both the offer and acceptance may be by word, act or conduct that evince the intention of the parties to contract.” Id. (citation modified). For the reasons discussed in Austin, 148 F.4th at 207-09, we reject Cox‘s arguments (grounded in the lack of a clickwrap agreement, the layout of the webform, and the layout of Defendants’ website) for why his enrollment in CreditWorks did not manifest his assent to the Terms of Use Agreement.
In sum, the record here demonstrates that Cox “had reasonable notice of an offer to enter into” the Terms of Use Agreement and that he “manifested assent to it.” Id. at 209 (internal quotation marks omitted). “The Federal Arbitration Act compels courts to ensure parties make good on binding agreements to arbitrate, see
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
REVERSED AND REMANDED