Those of you who participated in Lead Generation World heard me discuss the big 2020 trend of courts refusing to enforce online disclosures due to perceived issues with website layout.
Things like “under the button” disclosures and distracting visuals have often been described as defeating a show of assent to disclosure terms in this unfortunate series of cases.
Well, 2022 brought a few cases that determined website disclosures were fine. Yesterday I reported on a big Efinancial win, and today we have a great victory from a cruise company.
In Barney vs. Grand Caribbean Cruises, Inc., CAS No. 21-CV-61560-RAR, 2022 US Dist. LEXIS 8263 (SD Fl. Jan. 17, 2022), Respondent requested the application of an arbitration provision on its website arguing that Plaintiff had accepted the terms and conditions by submitting a contest entry form.
Predictably, the plaintiff argued that the disclosures were unenforceable because the website layout was inadequate, in particular the font was too small and the terms excessively long.
The Court was not impressed.
Noting that the disclosure was clearly legible and above the button–and it required a checkbox – the Court simply refused to consider the claimant’s argument that he did not know he was accepting consent and arbitration. Here is the analysis:
First, in terms of placement, the website does not fit
away its statement regarding the terms and conditions in
an obscure corner of the page where a user is unlikely
to meet him. On the contrary, the declaration is found directly
between the contact information fields and the “Submit
“Enter” button. The user must check the box
indicating its acceptance of the Terms & Conditions first
information is submitted. Identifier. ¶ 14. Thus, it is impossible
that a user would not see the statement regarding
the general conditions or, at the very least, the
checkbox indicating assent to these.
Second, rather than simply informing the user that the
Terms and conditions exist, statement directs user
at the exact place where the terms and conditions
accessible, i.e. at the “bottom of the page”.
Finally, and above all, the user is required to
Prerequisites for submitting any information via
the website – an affirmative act indicating [*14] consent.
The checkbox accompanies the declaration, which
specifically includes language indicating that the user
Thus, there is an explicit textual mention indicating that the verification of the
box will act as a manifestation of an intention to be bound.
A reasonable user faced with a statement that “I
consent to receive emails, SMS/text messages, and
calls about offers and promotions from an automatic dialer
system and/or pre-recorded voice technology” and
“confirm that I am over 25 [and] agree with the
hyperlink at the bottom of the page” would be
understand that he or she consents to the link
terms, including those relating to obligations
arbitration. And the record shows that the plaintiff indeed
checked the box before clicking “Submit Entry”.
Connolly Decl. ¶ 20.
The applicant’s objections to the design of the website do not stand
the water. The plaintiff attacks the statement concerning the
The terms and conditions of the website are “long” with
“extremely small font that blends into the background.”
Rep. at 9. But as seen in the website screenshot
on the day of the applicant’s visit, the text of the declaration is
clearly legible [*15] and not too long. Indeed it is
roughly the same size and color as the text indicating
the fields “First name”, “Last name”, “E-mail” and
“Phone number.” The plaintiff also opposes the placement
from the link to the Terms & Conditions at the bottom of
the page. Identifier. to 10. But, as discussed above, it is
precisely where the statement was inviting the user to view
As you can see, the Court found the layout perfectly appropriate and was particularly moved by the presence of the opt-in checkbox. Although many cases have recently mandated disclosures WITHOUT checkboxes, they remain preferred by the courts.
I think Barney represents a case of a fairly clearly enforceable disposition. The text above the button coupled with the radial button and clear articulation of accepted terms made this an easy case for the court.
I’ll note that TCPA consent is related to terms and conditions jargon – I don’t know to like that since the TCPA disclosure should be “separately signed”. But consumer agreement that they are over 25 is a good idea – it helps protect against claims that minors are giving consent illegally.
If you have any questions about your form disclosure or your website layout, please don’t hesitate to contact us. And lead buyers should always be careful and review forms carefully before buying leads from aggregators or generators.