Tejon v. Zeus Networks: Small, Gray Browsewrap Hyperlinks Beneath Prominent Action Buttons Do Not Create Inquiry Notice of Arbitration Under Florida Law

I. Introduction

In Roger Tejon v. Zeus Networks, LLC (11th Cir. May 1, 2026), Zeus sought to compel arbitration based on a mandatory arbitration clause housed in its online “Terms of Service.” The “Terms of Service” were accessible only through a hyperlink on Zeus’s iOS subscription page titled “Choose your plan.” The page presented two large, red subscription buttons (annual and monthly). Beneath them appeared much smaller, gray text including an underlined hyperlink labeled “Terms of Service.”

After subscribing, Tejon sued Zeus under the Video Privacy Protection Act, 18 U.S.C. § 2710, alleging Zeus disclosed his viewing history and personally identifiable information to a social media company without consent. Zeus moved to compel arbitration. The district court denied the motion, finding the hyperlink insufficiently conspicuous to place a reasonably prudent user on notice of the arbitration provision. The Eleventh Circuit affirmed.

The central legal issue was contract formation: whether, under Florida law, Zeus’s interface design provided inquiry notice sufficient to bind a consumer to arbitration through a browsewrap-style presentation.

II. Summary of the Opinion

The Eleventh Circuit held that Zeus failed to show Tejon was on inquiry notice of the “Terms of Service” (and thus the arbitration clause within them). Because the hyperlink was visually buried—small, gray, and placed beneath prominent red action buttons amid other competing text—the page did not reasonably communicate that clicking the subscription buttons would bind the user to additional terms.

The court therefore affirmed the denial of Zeus’s motion to compel arbitration and did not reach Zeus’s alternative argument that the subscription transaction incorporated the hyperlinked terms by reference.

III. Analysis

A. Precedents Cited

  • JPay, Inc. v. Kobel, 904 F.3d 923 (11th Cir. 2018)
    Cited for the standard of review: denial of a motion to compel arbitration is reviewed de novo. This framing mattered because the Eleventh Circuit independently assessed the interface and notice question rather than deferring to the district court.
  • AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), and Morgan v. Sundance, Inc., 596 U.S. 411 (2022)
    These FAA cases set the backdrop. Concepcion recognizes a strong federal policy favoring arbitration, while Morgan clarifies that the policy is not pro-arbitration at all costs; arbitration contracts must be treated like any other contract. The court used these cases to emphasize that the FAA does not relax ordinary contract formation requirements.
  • Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325 (11th Cir. 2016)
    Cited for the principle that state law controls whether an arbitration agreement exists. Here, both sides agreed Florida law governed formation and notice.
  • MetroPCS Commc'ns, Inc. v. Porter, 273 So. 3d 1025 (Fla. Dist. Ct. App. 2018), and Vitacost.com, Inc. v. McCants, 210 So. 3d 761 (Fla. Dist. Ct. App. 2017)
    These Florida decisions supply the controlling framework distinguishing clickwrap from browsewrap agreements and setting the enforceability rule for browsewrap: Florida enforces browsewrap terms only if the consumer has actual knowledge or the hyperlink is conspicuous enough to place a reasonably prudent person on inquiry notice. The majority relied on Vitacost.com in particular for the idea that burying terms where a user is unlikely to look undermines inquiry notice.
  • Mia. Dolphins, Ltd. v. Engwiller, 410 So. 3d 685 (Fla. Dist. Ct. App. 2025)
    This recent Florida case provided a contrast example where notice was sufficient: the hyperlink was bolded, brightly colored, and displayed at the center of the page. The Eleventh Circuit used Mia. Dolphins for the proposition that users need not “ferret out” hyperlinks and that design must make the hyperlink’s existence readily apparent.
  • Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022) (persuasive authority)
    Though not Florida law, the Eleventh Circuit found Berman a useful articulation consistent with Florida’s inquiry notice principles—especially regarding “tiny gray font,” the limits of underlining alone, and the need for design tailored to the “reasonably prudent Internet user.” The court also noted Florida’s adoption/usage of Berman reasoning in Mia. Dolphins.
  • Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014); Specht v. Netscape Commc'ns. Corp., 306 F.3d 17 (2d Cir. 2002); and Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (persuasive authority)
    These cases were used as comparative illustrations: Specht supports the idea that placing notice below a download/action button may not reasonably communicate assent. Meyer illustrates an enforceable design where notice was clearer (blue/underlined hyperlinks and an uncluttered screen with an explicit assent warning). Nguyen was cited through Berman to emphasize that inquiry notice must target ordinary users rather than expert ones.
  • First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995) (in the dissent)
    Cited by the dissent for the general contract-formation proposition that whether parties agreed to arbitrate is determined under ordinary state-law principles.
  • Eglin Fed. Credit Union v. Baird, 400 So. 3d 643 (Fla. 1st DCA 2024) (in the dissent)
    Used to emphasize that conspicuousness is a fact-intensive inquiry in Florida and that Florida courts often assess interface design holistically.
  • Derriman v. Mizzen & Main LLC, Kravets v. Anthropologie, Inc., and Bell v. Royal Seas Cruises, Inc. (in the dissent)
    These district court decisions were invoked (through Mia. Dolphins) to support the dissent’s view that hyperlinks placed near action buttons can be conspicuous.

B. Legal Reasoning

The court treated Zeus’s presentation as a browsewrap arrangement because the user did not have to click an “I agree” box or similar acknowledgement. Under Florida law, the dispositive question became whether the hyperlink’s presentation was conspicuous enough to place a reasonably prudent user on inquiry notice.

The Eleventh Circuit focused on the overall design and content of the “Choose your plan” page, emphasizing several interface considerations (without declaring any one of them mandatory):

  • Placement relative to required action: The hyperlink was beneath large, prominent red subscription buttons the user had to click. The court reasoned it is not reasonable to assume users will move past a highly conspicuous action button to notice less prominent terms below—analogizing to Vitacost.com (buried links) and Specht (notice below a download button).
  • Font size and visual hierarchy: The hyperlink was in a small font on the bottom half of the page and was easy to miss compared to larger text and bold colors around it. Borrowing from Berman, the court stressed the notice must be displayed such that a court can fairly assume an ordinary user would have seen it.
  • Color and hyperlink signaling: The hyperlink was dim gray and not in a contrasting color (like blue) or all caps. Underlining alone, the court said (again echoing Berman), may be insufficient—especially when surrounding text is similar in size/color and the page contains other “clutter” (age restrictions, auto-renewal/payment information).
  • Explicit assent language: The page did not explicitly tell the user that clicking the subscription buttons would constitute agreement to the terms, nor did it mention arbitration. The court noted Zeus could have plainly stated that clicking would subject disputes to binding arbitration or labeled the link “ARBITRATION AGREEMENT.”

Importantly, the court described these features as tools to evaluate whether the design created inquiry notice—not as a rigid checklist. Still, the combination of Zeus’s choices (small, gray link; overshadowed by prominent buttons; no clear “by clicking you agree” warning; no arbitration cue) led the court to the conclusion that Tejon did not assent.

Because Zeus failed at the notice stage, the court declined to address Zeus’s separate incorporation argument (i.e., that the subscription action incorporated the hyperlinked terms by reference).

C. Impact

1. Interface design becomes outcome-determinative in FAA cases applying Florida law.
The opinion reinforces that the FAA’s pro-arbitration policy does not rescue poorly presented online terms. Companies must satisfy ordinary Florida formation doctrines, with conspicuousness assessed through real-world visual design and user flow.

2. Practical constraint on “quiet” browsewrap arbitration in consumer sign-ups.
The decision signals that merely including an underlined “Terms of Service” link is risky when (a) the link is visually de-emphasized and (b) the page does not clearly connect the user’s click to assent. Many subscription funnels that prioritize conversion-oriented buttons while minimizing legal text may now face heightened vulnerability to challenges in Florida-governed contracts (and potentially elsewhere through persuasive influence).

3. Strong incentive to use clickwrap (or at least explicit click-through notice).
While the court did not require clickwrap, it explicitly noted that “Even better, the owner could use a clickwrap agreement.” Future litigants will likely treat this as guidance: a clear “By clicking [button], you agree…” disclosure and affirmative assent mechanism can reduce litigation risk.

4. Litigation posture in privacy claims.
Substantively, the underlying claim arises under the VPPA, a statute frequently litigated in data-sharing contexts. The decision may increase the number of VPPA (and other privacy) cases that remain in court rather than being diverted to arbitration—depending on how platforms present their terms.

5. Doctrinal development within Florida browsewrap analysis.
The dissent criticized the majority for importing out-of-state factors and for treating “below the button” placement as a negative. That split may encourage future Florida appellate decisions to clarify whether Florida’s approach is best viewed as “holistic” (as the dissent argued) or whether certain design features (explicit assent language, contrastive hyperlink styling, avoidance of being visually overshadowed) are effectively becoming baseline expectations in consumer flows.

IV. Complex Concepts Simplified

  • FAA (Federal Arbitration Act): A federal law that generally requires courts to enforce arbitration agreements, but only if a valid arbitration agreement was actually formed under applicable state contract law.
  • Arbitration clause: A contract term requiring disputes to be resolved privately by an arbitrator instead of in court.
  • Clickwrap vs. browsewrap: Clickwrap requires an affirmative action showing agreement (e.g., checking “I agree”). Browsewrap posts terms via hyperlink and claims the user agrees through use of the site or completion of a transaction—often without an explicit “I agree.”
  • Inquiry notice: Even if the user did not read the terms, the law may treat the user as bound if the website gave reasonable notice that terms exist and that a given action manifests assent. The question is what a reasonably prudent user would notice on that page.
  • Incorporation by reference: A doctrine allowing one document to become part of a contract if the contract clearly refers to it and the user is on adequate notice of it. The court did not reach this because it found no inquiry notice in the first place.
  • De novo review: The appellate court decides the issue anew, without deference to the district court’s conclusions.

V. Conclusion

The Eleventh Circuit’s decision establishes a clear, design-focused rule for Florida-governed browsewrap arbitration in consumer subscription flows: when the terms hyperlink is visually de-emphasized—such as small, gray text placed beneath prominent action buttons without clear assent language—users are not on inquiry notice and cannot be bound to arbitration.

The opinion’s broader significance lies in its insistence that arbitration’s favored status under federal law does not dilute ordinary state-law requirements of mutual assent. For online platforms, the case is a roadmap of what not to do—and a strong nudge toward clickwrap or, at minimum, conspicuous, explicit “by clicking you agree” disclosures that a reasonably prudent user cannot miss.