Consent to Marketing ≠ Consent to Arbitrate: Eleventh Circuit Demands Conspicuous Terms and Explicit Assent for Online Arbitration Agreements

Introduction

In Heriberto Valiente v. NexGen Global, LLC (No. 23-13308), the Eleventh Circuit affirmed a district court order denying NexGen’s motion to compel arbitration in a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA) and the Florida Telephone Solicitation Act (FTSA). The dispute centers on whether Valiente’s visit to NexGen’s website—and his clicking of a checkout button that contained a marketing-consent disclosure—bound him to an arbitration clause embedded in the site’s “Terms of Use.”

NexGen advanced three theories of assent: (1) a browsewrap theory based on a footer “Terms of Use” hyperlink across the site; (2) a clickwrap theory anchored in the “Go To Step #2” button that purportedly indicated assent to a “Messaging Program” governed by the Terms; and (3) a post-purchase “double opt-in” email confirmation that NexGen said enrolled Valiente in that Messaging Program and thus the Terms (including arbitration). The district court found none of these theories sufficient to demonstrate an enforceable arbitration agreement, and the Eleventh Circuit agreed.

Summary of the Opinion

The Eleventh Circuit (per curiam, non-argument calendar) affirmed the denial of NexGen’s motion to compel arbitration. Applying both Florida and California law under a “false conflict” approach, the Court held:

• Browsewrap: The “Terms of Use” hyperlink was not sufficiently conspicuous to place a reasonably prudent user on inquiry notice. The site’s design was busy, the link was buried at the bottom in small, white font, and nothing advised that continued use constituted assent to the Terms.
• Clickwrap: The “Go To Step #2” button expressly obtained consent to receive emails, calls, and SMS messages but said nothing about the Terms of Use or arbitration. That explicit, narrow consent could not be stretched to encompass assent to an off-page arbitration clause.
• “Double Opt-In”: NexGen failed to support this argument with evidence. It did not submit the alleged email or content of the confirmation flow; therefore it did not carry its evidentiary burden to prove the existence and terms of any second assent.
• FAA Procedure: Under Federal Arbitration Act § 4, the movant bears the burden to show an enforceable agreement, and the Court analogized the posture to summary judgment—NexGen did not meet its initial burden.

Result: Affirmed. No enforceable arbitration agreement was formed under these facts.

Analysis

Precedents Cited and Their Influence

• Arbitration as consent:
  • Granite Rock Co. v. Int’l Bhd. of Teamsters: Arbitration is strictly a matter of consent; parties cannot be compelled absent agreement.
  • Chastain v. Robinson-Humphrey; First Options v. Kaplan: Reinforce the threshold formation inquiry and who decides it.
  • Bazemore v. Jefferson Capital; Dasher v. RBC Bank: No pro-arbitration presumption applies at the formation stage.
• FAA § 4 procedure and standard of review:
  • Lamonaco v. Experian: Section 4 procedure mirrors summary judgment; movant must establish no genuine dispute of material fact regarding the existence of an agreement.
  • Poer; Baker; Four Parcels; Celotex; Merritt Island Woodwerx: Outline movant’s burdens and appellate review standards.
• Online contract formation—Florida:
  • MetroPCS Commc’ns v. Porter; Vitacost.com v. McCants: Browsewrap enforceable only if the hyperlink is conspicuous enough to put a reasonably prudent user on notice, or the user has actual knowledge.
  • Massage Envy Franchising v. Doe: Clickwrap generally enforceable when the user is directed to terms and must affirmatively acknowledge them.
  • Miami Dolphins, Ltd. v. Engwiller: Florida imposes a heightened burden on agreements akin to browsewrap to avoid unfair enforcement of unseen terms.
• Online contract formation—California:
  • Nguyen v. Barnes & Noble; Long v. Provide Commerce; Berman v. Freedom Financial; Weeks v. Interactive Life Forms; Sellers v. JustAnswer: California courts are skeptical of browsewrap. Assent requires conspicuous notice and, typically, explicit action tied to the terms (clickwrap). Textual notice that continued use equals assent is key if browsewrap is claimed.
  • Windsor Mills; Commercial Factors; Iyere v. Wise Auto: A party is not bound without notice of the terms; an arbitration proponent should provide the agreement’s text or verbatim terms; essential terms must be sufficiently definite.
• Choice of law:
  • Juncadella v. Robinhood (In re January 2021 Short Squeeze); Tune v. Philip Morris: “False conflict”—no need to choose if both states’ laws yield the same outcome.
  • Klaxon; Fagin; Rodriguez: Federal courts apply state choice rules even in federal-question cases when the underlying issue is governed by state law; federal common-lawmaking is limited.
• Additional supports:
  • Specht v. Netscape: Terms placed below a button or at the page bottom without clear notice are not binding.
  • South Coast Corp. v. Sinclair Refining (expressio unius): Express inclusion of one form of consent (marketing messages) implies exclusion of others (like arbitration), absent contrary language.
  • Coinbase v. Bielski; Bess v. Check Express: Appellate jurisdiction and automatic stay during interlocutory arbitration appeals.

Legal Reasoning

The Court’s reasoning proceeds in three layers: choice of law, the FAA § 4 framework and burdens, and application to each of NexGen’s three assent theories.

1) Choice of Law: A “False Conflict” Between Florida and California

Because the formation question is governed by state contract law, the Court applied Florida’s choice-of-law rules and concluded there was a “false conflict”: Florida and California law would both yield the same result on these facts. The Court therefore referenced both bodies of law without resolving a choice between them.

2) FAA § 4 Framework: Movant’s Burden and Summary-Judgment Analogy

Under FAA § 4, the party seeking to compel arbitration bears the burden of proving a valid arbitration agreement. The Court analogized the posture to summary judgment: the movant must make an initial evidentiary showing that no genuine dispute exists about the existence of an agreement. Doubts about contract scope may be resolved in favor of arbitration, but there is no pro-arbitration presumption at the formation stage.

3) Application to NexGen’s Assent Theories

a) Browsewrap: Inconspicuous Link, No Notice of Assent by Use

Both Florida and California treat “browsewrap” with skepticism. A footer hyperlink is enforceable only if it is sufficiently conspicuous to put a reasonably prudent user on inquiry notice and, in California, if the site communicates that continued use equals assent.

NexGen’s “Terms of Use” link failed those standards. The link was at the very bottom of a long, visually busy page, in small white font, not in a contrasting color or otherwise highlighted, and lacked any notice that continued browsing or purchasing constituted assent. On this design, a reasonable user would not be expected to scroll to the bottom or recognize the link as binding terms. The Court therefore found no enforceable browsewrap agreement.

b) Clickwrap: Explicit Marketing Consent Does Not Incorporate Arbitration

Clickwrap typically works when the site presents the terms and requires a clear affirmative action—e.g., clicking “I agree”—in a manner proximate to the terms. NexGen relied on the “Go To Step #2” button, which was accompanied by language stating that, by clicking, the user “consent[s] to receive from Nexgen emails, calls, and SMS text messages at any time, which could result in wireless charges, at the number provided above.”

The Court read that provision narrowly and precisely. It obtained consent to marketing communications—nothing more. It did not mention “Terms of Use,” did not hyperlink to them, did not reference arbitration, and did not state that clicking constituted agreement to any off-page contractual terms. Applying the principle that the expression of one item implies the exclusion of others, the Court concluded that the explicit marketing-consent language undermined NexGen’s attempt to treat the click as an all-purpose assent to the Terms and their arbitration clause. Even assuming the button created some form of clickwrap, the only agreement reflected in that click was the marketing-consent disclosure—not an agreement to arbitrate.

c) “Double Opt-In”: No Evidence, No Agreement

NexGen argued that after purchase Valiente confirmed his identity and marketing enrollment via email, thereby “double opting in” to a Messaging Program “governed by” the Terms. But NexGen provided no copy of the email, no screenshot, and no description of the pages or prompts the user saw. Without record evidence of the alleged second exchange or its content, NexGen could not carry its initial burden to show the formation of any agreement, much less one incorporating arbitration. The Court cited California authority requiring proponents to provide the arbitration agreement verbatim or in copy, and Florida authority requiring essential terms to be specified.

Impact

While unpublished and therefore non-precedential, the decision is a clear, persuasive application of modern online contract-formation law with practical ramifications for consumer websites and arbitration enforcement:

• Conspicuousness and proximity govern: Footer “Terms” links—especially in small, low-contrast font amid busy designs—will rarely suffice without explicit, proximate textual notice that continued use constitutes consent.
• Express marketing consent is not a Trojan horse for arbitration: If a button expressly seeks consent to receive marketing messages, courts will not infer that the same click adopts the site’s Terms and an arbitration clause, absent clear reference and linkage.
• Evidence matters: Companies must submit the actual screens, emails, or flows they rely on to prove assent. Assertions about a “double opt-in” process, without the underlying communications, are insufficient under the FAA § 4 burden.
• Design and copywriting checklists:
  • Use explicit “I agree to the Terms of Use” language adjacent to the action button, with a working hyperlink to the Terms.
  • Make the hyperlink conspicuous (contrasting color, underline, legible font) and place it near the action that signals assent.
  • If relying on browsewrap, include clear textual notice that continued use constitutes assent (recognizing that Florida and California remain skeptical even then).
  • If arbitration is critical, reference it explicitly in the assent disclosure and ensure the clause is reasonably discoverable in the linked Terms.
  • Preserve and submit evidence of every assent step (screens, emails, timestamps, IP logs).
• Litigation posture under FAA § 4: Movants should anticipate a summary-judgment-like burden at the formation stage and ensure they can carry it with record materials.
• TCPA/FTSA class actions: Plaintiffs opposing arbitration can point to this decision as persuasive authority that marketing-consent flows are not automatically consent to arbitration.

Complex Concepts Simplified

• Browsewrap: The website posts a link to its terms (often in the footer), and claims that simply using the site binds users. Courts enforce this only if the link is conspicuous and the site alerts users that continued use equals agreement—standards often unmet.
• Clickwrap: The site presents terms (or links to them) and requires the user to click “I agree” or otherwise clearly accept. Courts usually enforce clickwrap because assent is explicit.
• Inquiry notice: The idea that a user is deemed aware of terms if the design and presentation would alert a reasonable person to their existence and prompt further review.
• Double opt-in: A two-step process (often via email or SMS) to confirm identity and consent. It can prove marketing consent, but it does not automatically prove assent to an arbitration clause unless the communications and flow clearly reference and link to the governing terms—and those materials are in the record.
• False conflict (choice of law): When two potentially applicable states’ laws would lead to the same result, courts need not choose between them.
• FAA § 4 burden: The party seeking arbitration must prove an agreement exists, akin to a summary judgment movant’s burden to show no genuine dispute of material fact as to formation.
• Expressio unius est exclusio alterius: If a contract term expressly lists one type of consent (e.g., marketing), courts infer that other consents (like arbitration) are excluded unless clearly stated.

Conclusion

The Eleventh Circuit’s opinion in Valiente v. NexGen Global underscores a simple but consequential rule for digital contracting: explicit means explicit. A small-font footer link in a visually busy page is not enough to bind users to arbitration, and a button that specifically secures consent to marketing communications cannot be repurposed as assent to an entire set of online Terms that includes an arbitration clause. Moreover, assertions about “double opt-in” must be backed by the actual communications.

For businesses, the message is practical: if you want arbitration, design for it. Place conspicuous, proximate links to Terms; require a clear “I agree” acknowledgement; call out arbitration in the assent language; and preserve the evidence. For courts and litigants, the opinion reaffirms that the pro-arbitration policy of the FAA does not relax the threshold requirement of mutual assent. On these facts, under either Florida or California law, there was no agreement to arbitrate—and the denial of NexGen’s motion was properly affirmed.