Hidden E-Statement Addenda Do Not Create Assent to Opt-Out Arbitration Under Florida Contract Law

I. Introduction

In Melissa Ransom v. VyStar Credit Union (11th Cir. Mar. 10, 2026) (unpublished), VyStar Credit Union sought to compel arbitration of overdraft-fee and Regulation E claims brought by account members Melissa Ransom and All Jakd Up Motorsports, Inc. The dispute turned on contract formation: whether Plaintiffs assented to an “Arbitration Provision and Class Action Waiver” that VyStar unilaterally added to its Membership Agreements effective July 1, 2021.

The key issue was notice-and-assent in an electronic banking context. VyStar provided the arbitration terms only as a “change in terms” attachment embedded after the final page of monthly e-statements (within a single PDF). VyStar did not otherwise flag the change in emails, the online-banking interface, or on the face of the statement. Plaintiffs did not see the notice and did not opt out.

II. Summary of the Opinion

The Eleventh Circuit affirmed the district court’s refusal to compel arbitration. Applying Florida contract law, the court held that VyStar failed to prove formation of an arbitration agreement because it did not establish that Plaintiffs had adequate notice of VyStar’s offer to arbitrate (and waive class remedies) such that their silence, failure to opt out, and continued account use could be treated as assent.

Central to the affirmance was the court’s reading of (1) the Membership Agreements’ duty to review “statements” as referring to the account transaction statement itself, not undisclosed “notices” appended behind it, and (2) the E-Statement Agreement’s express distinction between “statements” and “notices,” coupled with VyStar’s failure to provide “instruction on how to access” the arbitration “notice.”

III. Analysis

A. Precedents Cited

  • Reiterman v. Abid, 26 F.4th 1226 (11th Cir. 2022): Supplied the standard of review (de novo for denial of a motion to compel arbitration; clear error for factfinding) and confirmed that when contract formation is disputed and no jury trial is requested, a district court may resolve formation through a bench trial under 9 U.S.C. § 4. This procedural frame mattered because the appeal rose from a formation-focused bench trial rather than a merits dispute.
  • Bazemore v. Jeffer- son Capital Sys., LLC, 827 F.3d 1325 (11th Cir. 2016): Anchored the “threshold question” principle—whether an arbitration agreement exists is a contract question governed by state law, and no presumption of arbitrability applies to the existence of an agreement. The court used this to resist any drift toward pro-arbitration presumptions when the dispute is about assent in the first place.
  • UATP Mgmt., LLC v. Barnes, 320 So. 3d 851 (Fla. 2d DCA 2021): Allocated the burden of proof. As the proponent of arbitration, VyStar had to prove the agreement’s existence. The opinion repeatedly returns to this burden allocation in rejecting invitations to infer assent from “accessibility” alone.
  • Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999): Provided the foundational Florida arbitration principle: no party may be compelled to arbitrate absent intent and agreement. The court used this as a normative backstop for strict insistence on formation.
  • Miami Dolphins, Ltd. v. Engwiller, 410 So. 3d 685 (Fla. 3d DCA 2025): Supplied Florida’s “notice and assent” contract-formation framing and the Restatement-based rule that conduct manifests assent only if the actor knows or has reason to know the other party may infer assent. The court also cited its online-terms reasoning (“conspicuous enough to put a reasonably prudent person on inquiry notice”) to emphasize that “accessible” is not the same as “noticed.”
  • Steve Owren, Inc. v. Connolly, 877 So. 2d 918 (Fla. 4th DCA 2004): Reinforced that the proponent must prove acceptance of arbitration as a contractual remedy—again underscoring that VyStar needed evidence of acceptance, not just evidence that the terms existed somewhere.
  • Kolodziej v. Mason, 774 F.3d 736 (11th Cir. 2014): Supplied the offer-and-acceptance analytic structure for assent, which the panel used to frame the “key question” as whether Plaintiffs had adequate notice of the offer to arbitrate.
  • Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359 (11th Cir. 2005): Served as the contrasting example where continued conduct (employment) manifested assent because employees received “clear notice” that continued employment meant acceptance. The court used Caley to show what was missing here: clear notice that non–opt-out would be treated as assent to arbitration.
  • Land. v. IU Credit Union, 218 N.E.3d 1282 (Ind. 2023): Cited as a comparative case where a statement itself “clearly referenced” an addendum; the Eleventh Circuit used it to highlight the absence of any such referencing or flagging on VyStar’s statement face or delivery path.

B. Legal Reasoning

  1. Formation—not enforceability—controlled. The panel treated the dispute as purely whether an arbitration contract was formed. That stance foreclosed arguments about the FAA’s general favorability toward arbitration because the FAA’s policy applies to enforcing existing arbitration agreements, not conjuring assent.
  2. VyStar’s “notice” was effectively invisible in the parties’ agreed channel. The court accepted the undisputed operational facts: the Arbitration CIT appeared only after the last page of the statement in a combined PDF; the “statement available” emails looked routine; nothing in the online system or statement alerted users to a contract change or an opt-out right. The opinion treats these facts as fatal to VyStar’s effort to infer assent from silence.
  3. Contract text mattered: “statements” vs. “notices.” The Membership Agreements required prompt review of periodic account statements for transaction errors—language aimed at fraud detection and statement accuracy, not at imposing a duty to hunt for contract amendments embedded behind the statement. The E-Statement Agreement’s definition split (“statements” versus “notices”) supported the court’s conclusion that receiving an email about “statements” did not equate to receiving notice of a separate “notice,” especially where VyStar did not provide “instruction on how to access” it.
  4. The opt-out feature made this an “offer” requiring meaningful notice. The district court (affirmed) viewed the Arbitration CIT as more than a passive amendment: it presented a choice (opt out without loss of benefits), i.e., an offer to enter a new arbitration arrangement. Under Florida principles cited in Miami Dolphins, Ltd. v. Engwiller, conduct can indicate assent only when the offeree knows or has reason to know assent will be inferred. Without adequate notice of the offer itself, silence and continued account use could not reasonably be treated as acceptance.
  5. “Accessible” is not “assented.” VyStar argued it was easy to scroll and see the CIT. The court rejected that as insufficient: mere availability on a platform does not create inquiry notice absent some conspicuous prompt that would lead a reasonably prudent person to look.
  6. No “heightened notice” rule was imposed. The panel addressed VyStar’s FAA preemption-style objection and concluded the district court’s reasoning rested on ordinary Florida formation law. Even if stray comments suggested a higher standard, any error was harmless because the appellate review of the legal question was de novo under Reiterman v. Abid.

C. Impact

Although unpublished, the decision is a clear warning to financial institutions using e-statements as a vehicle for contract change: an arbitration clause (especially one presented with an opt-out mechanism) will not be formed by “silent” posting or unflagged embedding. Future litigants can be expected to cite this case—together with Florida’s modern “inquiry notice” reasoning from Miami Dolphins, Ltd. v. Engwiller— to challenge arbitration provisions delivered through passive electronic methods that do not conspicuously alert the consumer or business member.

Operationally, institutions will likely adjust by: adding prominent statement-face banners, dedicated “change in terms” emails, in-platform alerts requiring acknowledgment, or clear instructions linking directly to the new terms and opt-out process. The opinion suggests that courts will scrutinize the delivery path of notice, not merely the formatting of the arbitration text once found.

IV. Complex Concepts Simplified

  • “Motion to compel arbitration”: a request asking the court to send the dispute out of court and into arbitration because the parties supposedly agreed to arbitrate.
  • “Contract formation”: whether a binding contract term was actually agreed to (offer + acceptance + notice/assent), as distinct from whether an agreed term is enforceable.
  • “Inquiry notice”: the idea that a person can be bound to terms they did not read if the presentation was sufficiently conspicuous that a reasonably prudent person would realize terms existed and would investigate.
  • “Assent by conduct”: acceptance shown by actions (like continuing to use an account), but only when the person knows or has reason to know their conduct will be treated as acceptance.
  • “Opt-out arbitration”: an arbitration clause that becomes effective unless the customer takes specified steps by a deadline to reject it. This structure increases the importance of clear notice of both the new term and the opt-out right.

V. Conclusion

The Eleventh Circuit affirmed that, under Florida contract law, VyStar could not carry its burden to prove assent to an opt-out arbitration provision when the only “notice” was an unflagged attachment buried behind e-statements. The opinion’s core lesson is practical and doctrinal: arbitration requires agreement, and agreement requires meaningful notice—mere electronic accessibility, without a conspicuous prompt in the delivery process, will not convert silence and continued account use into acceptance.