By Leslie King O’Neal
When a “Click” Creates a Contract
Many consumers (and lawyers) click “Yes” or “Submit” when making online purchases. They don’t take the time to read the Terms and Conditions listed because they’re in a hurry. However, they may find that by clicking “Submit” they have agreed to arbitrate all disputes with their vendor. Also, the arbitration agreement may be extremely broad, including personal injury or wrongful death claims, and covering claims by non-signatories to the agreement. A prior post considered the Uber and Disney clickwrap agreements and their broad arbitration provisions. https://theconstructionadrtoolbox.com/2024/12/broad-arbitration-clauses-are-becoming-more-common/
This post discusses a recent 11th Circuit case finding a clickwrap arbitration agreement valid based on a witness declaration attaching screen shots.
Lamonaco v. Experian Information Solutions, Inc. (citation below)
Carmen LaMonaco enrolled in CreditCheck Total Services (an Experian affiliate) online. She had to click a “submit” button below a bolded notice regarding the Terms of Use before proceeding. She did this. The Terms of Use included a broad arbitration clause covering all disputes between her and Experian or its affiliates. In addition there was a delegation clause, giving the arbitrator authority to decide all disputes about “scope and enforceability” of the arbitration clause.
Defendant Participates in Lawsuit for 3 Months Before Moving to Compel Arbitration
After a fraudulent loan showed up on her credit file, Ms. Lamonaco sued Experian in federal court for allegedly violating the Fair Credit Reporting Act. Experian answered the complaint, filed a case management report, engaged in Rule 26 disclosures and requested a jury trial. After participating in the litigation for three months, Experian moved to compel arbitration under the clickwrap agreement. To support the motion Experian filed a declaration by a corporate officer regarding the clickwrap enrollment process, including a screenshot of the Terms of Use.
Lamonaco Opposes Arbitration–Trial Court Agrees
Although Lamonaco didn’t dispute the scope of the arbitration agreement, she opposed the motion to compel, asserting the declaration was insufficient to prove she agreed to arbitrate. Also, she argued Experian waived arbitration by participating in the litigation. She offered no evidence to rebut the declaration. The district court denied the motion to compel, holding Experian failed to carry its burden to show there was a valid arbitration agreement. Further, the court held Experian waived arbitration by participating in the litigation for three months before raising the issue.
11th Circuit Reverses–Compels Arbitration
Reversing the trial court, the 11th Circuit held there was competent, substantial evidence showing Lamonaco agreed to arbitrate. Under Florida law, the central question is whether the parties mutually assented to be bound. For clickwrap agreements, this turns on whether the relevant terms were reasonably presented and whether the user took clear, affirmative steps to accept them. The 11th Circuit distinguished its decision in Bazemore v. Jefferson Capital Systems, LLC, because the defendant there produced no evidence of what the user saw during the enrollment process, such as the terms and conditions.
Experian’s Screen Shots and Other Evidence Was Sufficient
Unlike the Bazemore case, the 11th Circuit found Experian’s corporate officer’s declaration (based on his personal knowledge from reviewing internal records) described the enrollment process in detail, attached the Terms of Use agreed to and attaching screen shots of pages Lamonaco encountered during enrollment. made it “more likely than not that Lamonaco agreed to the terms. Additionally, Lamonaco didn’t refute these facts, she simply asserted they were insufficient. Therefore, the 11th Circuit reversed the order denying the motion to compel arbitration.
Arbitrator Decides Waiver Issue
Because the arbitration agreement delegated issues of scope and enforceability to the arbitrator, the district court erred in holding that Experian’s litigation conduct waived its right to arbitration. This was not the court’s decision to make. When contracts contain arbitration clauses with valid delegation provisions, courts must send all arbitrability disputes to arbitration. (Citing Coinbase, Inc. v Suski, 602 U.S. 143 (2024)).
Takeaways
- Arbitration agreements in clickwrap contracts may be valid and enforceable but require adequate proof that the parties agreed to be bound.
- Screenshots of online Terms and Conditions may be used as proof with an affidavit or declaration from a witness with personal knowledge of the process.
- If the arbitration agreement has a valid delegation clause, the arbitrator, not the court, decides the arbitration agreement’s validity as well as waiver issues.
Lamonaco v. Experian Information Solutions, Inc., (Case No: 24-11270, 11th Circuit, July 3, 2025) https://media.ca11.uscourts.gov/opinions/pub/files/202411270.pdf