Hybrid “Click-to-Consent” Webpages Form Binding Arbitration Contracts Under California Law When Notice Is Conspicuous and Coupled to the Action Button

Introduction

In Michael Dahdah v. Rocket Mortgage, LLC, the Sixth Circuit confronted a modern contract-formation problem: when a website tells users that clicking a button signifies agreement to hyperlinked terms—including an arbitration clause—what counts as a valid online “offer” and “acceptance”? The case arose after Michael Dahdah used his cellphone to submit information on LowerMyBills.com (a mortgage-referral site affiliated with Rocket Mortgage) and clicked “Calculate”/“Calculate your FREE results” buttons positioned above small-font disclosures stating that clicking constituted consent to LowerMyBills’ “Terms of Use.”

After Dahdah later received allegedly unlawful telemarketing calls from Rocket, he filed a putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Rocket moved to compel arbitration based on LowerMyBills’ Terms of Use, which included a broad arbitration clause and a delegation clause assigning arbitrability questions to the arbitrator. The district court denied arbitration, concluding Dahdah’s clicks did not create an enforceable agreement. The Sixth Circuit reversed.

The key legal issues were: (1) whether LowerMyBills presented “reasonably conspicuous” notice of contract terms on a hybrid (“sign-in wrap”) interface under California law; (2) whether Dahdah manifested assent by clicking; and (3) whether asserted defects (missing arbitral procedures, time gap, alleged termination of consent) defeated or limited arbitration.

Summary of the Opinion

The Sixth Circuit held that LowerMyBills’ webpages (at least on Dahdah’s first and third visits) provided reasonably conspicuous notice that clicking the relevant buttons would constitute assent to the hyperlinked Terms of Use, including the arbitration provision. Because Dahdah clicked the specified buttons, he accepted the offer by the invited conduct and formed a binding arbitration agreement under California contract law. The court further held that: (a) the agreement was not unenforceable merely because it lacked procedural details about the arbitration, because the FAA supplies gap-fillers (notably 9 U.S.C. § 5); and (b) disputes about the scope of the clause and alleged termination were delegated to the arbitrator by explicit delegation language. The court reversed and remanded for proceedings consistent with compelling arbitration.

Analysis

Precedents Cited

1) FAA “equal-treatment” and state-law formation rules

  • Morgan v. Sundance, Inc., 596 U.S. 411 (2022): The court invoked Morgan for the principle that arbitration agreements are evaluated using ordinary contract rules—no special arbitration-specific hurdles. This framed the Sixth Circuit’s insistence on applying standard California assent principles rather than demanding heightened “knowing” assent.
  • Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and Sixth Circuit applications such as Talley v. State Farm Fire & Cas. Co., 223 F.3d 323 (6th Cir. 2000) and Equitable Life Assurance Soc'y of U.S. v. Poe, 143 F.3d 1013 (6th Cir. 1998): Cited to ground the use of state contract law to decide formation.
  • Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967 (6th Cir. 2007), and Floss v. Ryan's Fam. Steak Houses, Inc., 211 F.3d 306 (6th Cir. 2000): Reinforced that contract formation is governed by state law and that denial of a motion to compel arbitration is reviewed de novo.
  • AtriCure, Inc. v. Meng, 12 F.4th 516 (6th Cir. 2021): Used for the proposition that the court may assume an agreed-upon choice-of-law.

2) California assent doctrine (objective manifestation; conspicuousness)

  • Sellers v. JustAnswer LLC, 289 Cal. Rptr. 3d 1 (Ct. App. 2021), and Donovan v. RRL Corp., 27 P.3d 702 (Cal. 2001): Provided the baseline rule of mutual assent (“same thing in the same sense”) and the focus on outward manifestations.
  • B.D. v. Blizzard Ent., Inc., 292 Cal. Rptr. 3d 47 (Ct. App. 2022): Central to the opinion. It supplied (i) the objective test for assent; (ii) the online-contract continuity with offline principles; and (iii) California’s approach that, when historical facts about interface design are undisputed, the conspicuousness/assent determination is for the court.
  • Windsor Mills, Inc. v. Collins & Aikman Corp., 101 Cal. Rptr. 347 (Ct. App. 1972): The doctrinal anchor for the “inconspicuous terms in a non-obvious contractual document” warning. The Sixth Circuit used Windsor Mills both ways: (a) to explain enforceability even without reading when an offer is apparent, and (b) to mark the line where hidden terms cannot bind.
  • Marin Storage & Trucking, Inc. v. Benco Contracting & Eng'g, Inc., 107 Cal. Rptr. 2d 645 (Ct. App. 2001), and Cunningham v. Int'l Comm. of Y.M.C.A., 197 P. 140 (Cal. Ct. App. 1921): Used to illustrate enforcement despite failure to read where the contractual nature is evident.
  • Long v. Provide Commerce, Inc., 200 Cal. Rptr. 3d 117 (Ct. App. 2016): Cited for the browsewrap problem and, like Blizzard, for treating conspicuousness as a judicial issue when facts are not disputed.
  • Meyer v. Benko, 127 Cal. Rptr. 846 (Ct. App. 1976): Contributed the “reasonable person” perspective for offers.
  • Mar v. Perkins, 321 Cal. Rptr. 3d 268 (Ct. App. 2024): Supported acceptance-by-conduct principles (the offer can specify acceptance by performing a specified act).

3) Online “wrap” taxonomies and the conspicuousness factors

  • Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022): The Sixth Circuit used Berman as both a statement of the controlling test for hybrid offers (“reasonably conspicuous” notice + manifested assent) and as a contrast case where clutter, tiny gray font, and ambiguous assent language defeated formation.
  • Oberstein v. Live Nation Ent., Inc., 60 F.4th 505 (9th Cir. 2023): A major comparator. Oberstein validated notice where the disclosure was directly above/below the action button and the page design supported visibility; it also supported the proposition that judges can decide the issue where design facts are undisputed.
  • Chabolla v. ClassPass Inc., 129 F.4th 1147 (9th Cir. 2025): Used chiefly as a cautionary example about placement—ClassPass’s disclosure was below a different button (Facebook) such that email sign-ups might never see it.
  • Selden v. Airbnb, Inc., 4 F.4th 148 (D.C. Cir. 2021): Reinforced that simple layouts and visually distinct hyperlinks (e.g., colored text) favor conspicuousness.
  • Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017): Another key comparator. Uber’s small-font disclosure on an uncluttered screen with a conspicuous hyperlink was deemed sufficient under California law; the Sixth Circuit relied on that reasoning heavily.
  • Keebaugh v. Warner Bros. Ent., Inc., 100 F.4th 1005 (9th Cir. 2024): Supported enforcing app-based hybrid assent where tapping “Play” signaled agreement; also informed the “expected ongoing relationship” factor.
  • Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014): Cited as a browsewrap authority illustrating why merely placing a hyperlink to terms without meaningful notice often fails.
  • Additional Ninth Circuit comparators: Patrick v. Running Warehouse, LLC, 93 F.4th 468 (9th Cir. 2024); Dohrmann v. Intuit, Inc., 823 F. App'x 482 (9th Cir. 2020) (memorandum); Cullors v. Cerebral, Inc., 2024 WL 3385530 (9th Cir. July 12, 2024) (memorandum); and Seneca v. Homeaglow, Inc., 2025 WL 852896 (9th Cir. Mar. 19, 2025) (memorandum), which the Sixth Circuit distinguished because Seneca involved inconsistent terms across pages and post-payment presentation.
  • Inter-circuit “hybrid offer” collection: Dhruva v. CuriosityStream, Inc., 131 F.4th 146 (4th Cir. 2025); and the Sixth Circuit’s recognition that many circuits converge on a totality-of-circumstances test.

4) Who decides: court vs. jury; Erie characterization

  • Hana Fin., Inc. v. Hana Bank, 574 U.S. 418 (2015): Invoked to acknowledge that “ordinary person” standards often suggest jury resolution—yet the panel concluded California law assigns the interface-conspicuousness issue to the court when facts are undisputed.
  • Competing Erie views: Encompass Ins. Co. v. Coast Nat'l Ins. Co., 764 F.3d 981 (9th Cir. 2014) and Beckner v. Maxim Crane Works, L.P., 109 F.4th 968 (7th Cir. 2024) (per curiam). The Sixth Circuit flagged but did not resolve whether law/fact classification is substantive (state) or procedural (federal), proceeding on the parties’ assumption that California law controlled.

5) “Detail-free” arbitration clauses and FAA gap-filling

  • Green v. U.S. Cash Advance Ill., LLC, 724 F.3d 787 (7th Cir. 2013), and Arabian Motors Grp. W.L.L. v. Ford Motor Co., 19 F.4th 938 (6th Cir. 2021): Supported the proposition that missing procedural details (administrator, number of arbitrators, selection method) do not invalidate an arbitration clause because 9 U.S.C. § 5 provides default mechanisms (including court appointment and the default of a single arbitrator).
  • The court rejected Dahdah’s reliance on “effective vindication” concerns, distinguishing cases such as Morrison v. Cir. City Stores, Inc., 317 F.3d 646 (6th Cir. 2003) and Heckman v. Live Nation Ent., Inc., 120 F.4th 670 (9th Cir. 2024), because Dahdah did not show why FAA gap-filling would impair TCPA remedies.

6) Delegation of arbitrability and threshold issues

  • Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019); Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010); and First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995): The doctrinal basis for enforcing clear delegation clauses and requiring courts to send arbitrability disputes to arbitrators.
  • Berkeley Cnty. Sch. Dist. v. Hub Int'l Ltd., 130 F.4th 396 (4th Cir. 2025): Cited for the proposition that questions like termination can be “threshold arbitrability” issues subject to delegation.

Legal Reasoning

  1. Identify the governing law and formation framework. The court began with the FAA’s equal-treatment rule (9 U.S.C. § 2; Morgan v. Sundance, Inc.) and applied California contract law (objective manifestation of assent; B.D. v. Blizzard Ent., Inc.; Windsor Mills, Inc. v. Collins & Aikman Corp.).
  2. Classify the interface as “hybrid,” not clickwrap or browsewrap. LowerMyBills did not present a scrollwrap/clickwrap “I agree” screen, nor did it rely on mere browsing. Instead, it used a “click-to-consent” disclosure near an action button with hyperlinked terms—placing it in the “hybrid” (sign-in wrap) category analyzed under a totality-of-circumstances conspicuousness test (drawing heavily from Berman v. Freedom Fin. Network, LLC, Oberstein v. Live Nation Ent., Inc., Meyer v. Uber Techs., Inc., and Keebaugh v. Warner Bros. Ent., Inc.).
  3. Hold that conspicuousness is a question for the court on undisputed interface facts (California rule). Despite noting that “ordinary person” inquiries can suggest juries (Hana Fin., Inc. v. Hana Bank), the panel followed California intermediate appellate authority (B.D. v. Blizzard Ent., Inc.; Long v. Provide Commerce, Inc.) treating the issue as legal when the “historical facts” about design are undisputed.
  4. Apply a multi-factor “reasonable internet user” test to the first/third visits. The court evaluated the interface against recurring factors in the wrap-contract caselaw:
    • Clutter vs. streamlined design: The fourth page was “simple” and “uncluttered,” more like Uber/Airbnb than the promotional clutter in Berman v. Freedom Fin. Network, LLC.
    • Proximity to the action button: The disclosure sat directly below the button the user had to click, aligning with Oberstein v. Live Nation Ent., Inc. and avoiding the “periphery” problem found in Chabolla v. ClassPass Inc..
    • Visual salience (color/hyperlinks): Although the font was small, the “Terms of Use” hyperlink appeared in bright blue against a white background (as in Meyer v. Uber Techs., Inc.), unlike the tiny gray, barely legible text in Berman v. Freedom Fin. Network, LLC.
    • Context and expected relationship: Because LowerMyBills’ function is to match users with lenders who will contact them, a reasonable user would anticipate an ongoing relationship (akin to Keebaugh v. Warner Bros. Ent., Inc.), rather than a one-off transaction (contrast Sellers v. JustAnswer LLC in its specific statutory context).
    The Sixth Circuit also emphasized that the disclosure appeared twice (on consecutive pages), treating the later page as “belt-and-suspenders” reinforcement.
  5. Find acceptance by the invited conduct. Once conspicuous notice was established, acceptance was “straightforward” (Oberstein v. Live Nation Ent., Inc.): LowerMyBills specified that clicking the buttons constituted consent, and Dahdah clicked them. Under objective-manifestation rules, his claimed lack of actual knowledge was immaterial (B.D. v. Blizzard Ent., Inc.; Windsor Mills, Inc. v. Collins & Aikman Corp.).
  6. Reject “missing arbitration details” as a formation defect. The panel treated the absence of administrator/selection rules as non-fatal because the FAA supplies default mechanisms (9 U.S.C. § 5), consistent with Green v. U.S. Cash Advance Ill., LLC and Arabian Motors Grp. W.L.L. v. Ford Motor Co..
  7. Enforce delegation of arbitrability (scope/termination) to the arbitrator. The Terms of Use expressly assigned “arbitrability” questions to the arbitrator; under Henry Schein, Inc. v. Archer & White Sales, Inc. and related precedents, the court held Dahdah’s timing/scope and termination arguments must be presented to the arbitrator rather than litigated in court.

Impact

This decision strengthens enforceability of “hybrid” click-to-consent designs—especially where (i) the disclosure is directly adjacent to the action button, (ii) the page is relatively uncluttered, and (iii) the terms are linked in a visually distinct manner (e.g., bright-blue hyperlink). In practical effect, the Sixth Circuit aligned itself with the dominant federal trend (exemplified by Meyer v. Uber Techs., Inc., Oberstein v. Live Nation Ent., Inc., and Keebaugh v. Warner Bros. Ent., Inc.) that does not require a dedicated “I agree” checkbox if the interface provides sufficiently conspicuous notice and ties assent to a clear user action.

Two features are particularly consequential for future litigation:

  • Judicial resolution of conspicuousness (when facts are undisputed): By treating conspicuousness as a question of law under California authorities, the decision may reduce the ability of plaintiffs to force jury trials on interface-design disputes where screenshots and layout facts are fixed.
  • Delegation clauses as “second-layer” protection: Even where plaintiffs raise plausible arguments that claims are too remote in time (or consent has ended), a clear delegation clause can shift those disputes to arbitration at the outset, limiting judicial gatekeeping.

The opinion also implicitly signals that “borderline” designs invite litigation risk (echoing concerns noted in Oberstein v. Live Nation Ent., Inc.): small fonts and dense disclosures can still pass muster, but they invite “second-guessing,” so businesses seeking predictability should gravitate toward clearer clickwrap/scrollwrap implementations.

Complex Concepts Simplified

FAA (Federal Arbitration Act)
A federal statute that makes arbitration clauses enforceable like any other contract term (9 U.S.C. § 2). It also contains “gap-fillers,” such as 9 U.S.C. § 5, allowing courts to appoint an arbitrator if the contract does not specify a method.
Objective manifestation of assent
Contract formation depends on what a reasonable person would think your actions communicated—not what you privately intended. If the website clearly says “by clicking you agree,” and you click, courts often treat that as acceptance even if you did not read the terms.
Browsewrap vs. clickwrap vs. hybrid (“sign-in wrap”)
  • Browsewrap: terms are linked somewhere; using the site supposedly equals agreement. Often unenforceable if users aren’t clearly alerted.
  • Clickwrap: users must click “I agree” after being presented with terms (or a clear prompt). Usually enforceable.
  • Hybrid/sign-in wrap: users are told that taking another action (e.g., “Register,” “Continue,” “Play,” “Calculate”) indicates agreement to linked terms. Enforceability depends on how conspicuous the notice is.
Delegation clause (who decides arbitrability)
A contract term that assigns to the arbitrator, not the court, the power to decide whether a dispute is covered by the arbitration clause (e.g., whether the clause applies given timing or alleged termination). If unmistakably clear, courts must send those threshold questions to arbitration.

Conclusion

The Sixth Circuit’s core holding is that, under California law, a user can form a binding arbitration agreement on a hybrid click-to-consent webpage when the site provides reasonably conspicuous notice—especially when the notice is placed directly next to the action button and uses visually distinct hyperlinks—and the user then clicks the specified button. The decision also underscores that “detail-free” arbitration clauses are not invalid merely for omitting procedural minutiae (the FAA can supply defaults), and that clear delegation language will route scope and termination disputes to the arbitrator. In the broader landscape of online contracting, the case reinforces that interface design is contract law: placement, readability, and contextual expectations can determine whether “a click” is legally decisive.