Website Terms and Arbitration: Proving Assent Against a TCPA Plaintiff

Before a court asks whether a TCPA claim belongs in arbitration, it asks whether the plaintiff ever agreed to arbitrate. For terms behind a link on a website, the Ninth Circuit has set a demanding test: the notice must be reasonably conspicuous, and the user must take a clear action showing assent. A company whose web forms rely on a small hyperlink and a continue button may find its arbitration clause unenforceable no matter how well it is drafted. The proof has to come from the page as it looked, and from the click.

Why does formation come first?

Because the Federal Arbitration Act enforces agreements, not clauses a court can’t tie to the plaintiff. The Act provides that a written arbitration provision “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” per 9 U.S.C. § 2. And a court orders arbitration once it is “satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue,” under 9 U.S.C. § 4.

If the plaintiff says no agreement was made, the court has to decide that first. A company can have a well-drafted clause, a delegation provision, and a class waiver, and still lose the motion because it can’t show the plaintiff assented.

What did the Ninth Circuit decide in Berman?

The leading Ninth Circuit decision on website terms in a TCPA case is Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022). The plaintiffs sued under the Telephone Consumer Protection Act, and the defendants moved to compel arbitration based on terms and conditions hyperlinked on lead-generation websites. The court affirmed the denial: “Plaintiffs did not unambiguously manifest their assent to the terms and conditions when navigating through the websites, and as a result they never entered into a binding agreement to arbitrate their dispute.”

The court stated the test. “Unless the website operator can show that a consumer has actual knowledge of the agreement, an enforceable contract will be found based on an inquiry notice theory only if: (1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.”

Two parts of the opinion bear on web design. On conspicuousness, the court wrote in the same decision that “to be conspicuous in this context, a notice must be displayed in a font size and format such that the court can fairly assume that a reasonably prudent Internet user would have seen it.” On links, it said that “Simply underscoring words or phrases, as in the webpages at issue here, will often be insufficient to alert a reasonably prudent user that a clickable link exists.” The court closed its opinion with the holding: “We affirm the district court’s denial of defendants’ motion to compel arbitration and their motion for reconsideration.”

What does that mean for a company’s web forms?

That the form has to do the work. A notice in small gray type beneath a large button, and a button with a generic label such as continue, gives the plaintiff the argument that won in Berman. A form that puts a statement next to a checkbox, in readable type, that says the user agrees to the terms and that the terms include arbitration, makes both parts of the test easy to prove. The click then shows assent, and the statement shows notice.

I’d go further and treat the arbitration agreement as a separate act from marketing consent. A single checkbox that attaches both creates a risk in both directions. It invites an argument that the consent was conditioned on a legal waiver, which the FCC’s written-consent rule treats as a problem, and it invites an argument that the user never focused on the arbitration term. Separate acts, with separate text, are easier to defend.

What evidence does a company need?

Three things: what the page looked like, what the user did, and when. The page is the hardest. Websites change, and a screenshot of today’s page proves nothing about the page the plaintiff saw two years ago. The company needs version control for its forms, a record of which version served each visitor, and a captured image of that version with the date. The user’s act is a log entry that ties a time stamp, an IP address, and a device to the click. And the time stamp links the two.

Without those records, a company is left with a declaration from an employee describing the usual design, and the Berman decision suggests that a court will want more than a description of the usual design when the plaintiff denies seeing the notice.

What does a reasonably prudent user actually see?

That is the question a judge will answer by looking at the page. The Berman court did not decide in the abstract. It looked at reproductions of the webpages, which it attached to the opinion as appendices, and asked whether the notice stood out. So the company’s best exhibit is an accurate image of the page, at the size and on the device the plaintiff used.

Mobile screens change the analysis. A line of fine print that is readable on a desktop can drop below the fold or shrink on a phone, and many leads are collected on phones. I’d capture the form on both a desktop and a phone and compare them with the plaintiff’s likely device. If the notice appears only in a place a phone user wouldn’t see without scrolling, I’d assume a court will notice that too.

How should a company preserve page versions?

Treat the form like any other piece of regulated product. Keep every version of the template in version control, tag each submission with the version identifier, and store a rendering of each version on release. When someone changes the font size, the button label, or the location of the terms, that change should create a new version with a date.

If a vendor hosts the form, put the preservation duty in the contract: version history, submission logs, and a way to regenerate an image of any past version. A vendor that deletes its records after a short period can leave you unable to prove what the plaintiff saw, and the plaintiff won’t be sympathetic to that problem.

What to preserve when an arbitration motion is coming

1. Capture the web page and form as they existed on the plaintiff’s visit, using the version history, not the current page.
2. Pull the submission record: time stamp, IP address, device information, and the fields the plaintiff completed.
3. Collect the terms of use and arbitration clause in the version that applied that day.
4. Identify the vendor or team that built and hosts the form, and what logs it keeps.
5. Talk to a lawyer before sending a demand for arbitration, since the way the motion is framed can affect other defenses.

The firm’s California TCPA defense page describes how these claims move through court. For related reading, see the earlier post on TCPA mass arbitration.

Questions defendants ask about website arbitration clauses

Does a delegation clause avoid the formation question?

Not necessarily. A delegation clause helps only if the plaintiff agreed to it, and the plaintiff’s denial of assent can reach the clause too. I’d prove formation as though it were the only issue.

Is a clickwrap always enough?

A checkbox beside a readable statement is the strongest design, but you still have to prove it was shown and that the user checked it. The record matters as much as the design.

What if the plaintiff submitted the form through a lead generator?

Then the terms on the lead generator’s page are the ones the plaintiff saw, and you need that company’s records. Berman involved lead-generation websites. Check your contracts with lead sources for record-retention duties.

Can we amend the terms later and bind existing users?

That is a separate question about modification, and it brings its own notice requirements. I’d treat a quiet change to an arbitration clause as high risk.

Defending against TCPA claims in court or in arbitration

If your company has been sued under the TCPA and the plaintiff came through a website, the records of the page and the click will determine whether the case belongs in arbitration. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving website sign-ups and arbitration clauses. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statutes are 9 U.S.C. § 2, 9 U.S.C. § 4, and the Telephone Consumer Protection Act at 47 U.S.C. § 227.

The court decision is Berman v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022).

This post is general information about the Telephone Consumer Protection Act and related laws as of July 15, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.