There are many decisions addressing whether website interactions constitute a valid and binding contract–frequently, one to arbitrate. Under California law, “scrollwrap” or “clickwrap” offers, which require a user to affirmatively agree to terms and conditions after being presented with them, are are generally held to create enforceable contracts. On the other hand, “browsewrap” offers, where a website operator just somewhere indicates that merely using the website indicates assent to an agreement, are generally not enforceable. In Dahdah v. Rocket Mortgage, LLC, decided today, the Sixth Circuit attempted to distill general principles from case law addressing a third, in-between situation– the “hybrid” or “sign-in wrap” offer– complete with photos from websites addressed in other cases.
According to the Sixth Circuit, courts have largely identified four common questions:
- Did the website display the offer on an “uncluttered” page, or on a page filled with items that will “draw the user’s attention away from” the proposal?
- Did the website operator place the proposed offer close to—or away from—the button that a user must click to signal the user’s acceptance of the proposal?
- Did the website operator use a font size or color that would draw attention to the proposal?
- Did the website operator and users engage in the kind of interaction that one would expect to include contractual terms?
Analyzing the hybrid offer at issue under these factors, the Sixth Circuit found the website’s offer to be sufficiently conspicuous to create an offer, and the plaintiff’s clicking on a “Calculate” button constituted a valid acceptance under those terms.
The court also rejected the plaintiff’s arguments that the arbitration agreement was too vague about the details of arbitration to be enforceable, as well as other threshold arbitrability questions that it deemed committed to the arbitrator.
