Two Florida Cases: When Is an Arbitration Clause Visible Enough to Bind a User?
In 2022, the Florida Supreme Court enforced Airbnb’s online arbitration agreement in Airbnb v. Doe, 336 So. 3d 698 (Fla. 2022) (available at https://bit.ly/4cWgeWJ), holding that Airbnb’s Terms of Service clearly and unmistakably delegated questions of arbitrability to an arbitrator by incorporating American Arbitration Association consumer arbitration rules.
The case strongly backed so-called clickwrap agreements sending complaints to ADR rather than courts, and seemed to settle the validity of mandatory online arbitration contracts.
But a recent Eleventh U.S. Circuit Court of Appeals decision, Tejon v. Zeus Networks LLC, No. 24-11114, 2026 WL 1194722 at *2 (11th Cir. May 1, 2026) (available at https://bit.ly/4dh7NUN), went the other way.
The appeals panel declined to enforce an arbitration clause in the online Terms of Service for Zeus Networks LLC, a streaming platform, reasoning that the terms’ notice was not conspicuous.
A clickwrap agreement prompts the user to assent affirmatively by checking or clicking a box, which then confirms acknowledgment of the terms and conditions of the contract. Tejon, 2026 WL 1194722 at *2. A browsewrap agreement makes the terms and conditions available via hyperlink, and assent is inferred by the user’s continued use of the website. Id.
The Eleventh Circuit drew this distinction directly in Tejon: “Florida recognizes two categories of internet agreements: clickwrap agreements and browsewrap agreements,” and the parties did not dispute that Zeus’s arbitration agreement was contained in a browsewrap agreement.
Zeus's subscription page, according to the 2-1 panel opinion written by Circuit Judge Embry Kidd, presented users with two large red buttons for plan selection, annual or monthly, beneath which was a small gray hyperlinked text linking to the Terms of Service, which contained an arbitration clause.
The Florida Southern U.S. District Court determined that Zeus had failed to adequately bring the terms to the user’s attention. The Eleventh Circuit considered a variety of factors in making its own assessment:
None of the things that we have discussed—location on the page, font size, contrasting color, capital letters, underlining, informational content, and so forth—is individually required to pass a conspicuousness assessment. The point of these design elements is to place a reasonably prudent internet user on notice of the agreement at issue. The internet site owner may utilize some combination of these elements, or perhaps something else entirely, to bring attention to the agreement. Even better, the owner could use a clickwrap agreement. But Zeus chose to do none of this.
The panel then affirmed the district court: “We find that Tejon was not on inquiry notice of the terms of service or the arbitration agreement.”
There’s more in Tejon, and it could point to more litigation: Circuit Judge Elizabeth L. Branch dissented. Her 15-page opinion that was five pages longer than the majority’s.
Branch analyzed the Zeus web presentation in detail using charts, and disputed the majority analysis on two points—that it “relies heavily on non-precedential, out-of-state caselaw that distorts its analysis; and second, . . . concludes that the hyperlink’s location immediately beneath the action buttons is a flaw, not a feature, of its design.”
Branch concludes:
Given the hyperlink’s conspicuous position, size, color, and emphasis, placed in the overall context of the minimalist page de-sign, I would find that Tejon was on inquiry notice of the terms and conditions to which the hyperlink connects, including the mandatory arbitration clause.
Under Eleventh Circuit rules, Zeus has until May 15 to file a petition for rehearing en banc. As of this posting, no petition has been filed.
In Airbnb, by contrast, the users accepted the Terms of Service through a clickwrap agreement, and the majority held that “incorporation by reference of the AAA Rules that expressly delegate arbitrability determinations to an arbitrator clearly and unmistakably evidences the parties’ intent to empower an arbitrator to resolve questions of arbitrability.”
The contrast becomes more interesting in light of Justice Jorge Labarga’s dissent in Airbnb, a 6-1 decision which was not cited by the Eleventh Circuit in Tejon. Labarga objected that the clickwrap agreement was “entirely silent on the question of who determines arbitrability” and that the relevant delegation provision was “buried in the AAA rules, amidst more than 100 pages of policies, rules, and conditions incorporated by reference in the clickwrap agreement.”
In both Tejon and the Airbnb dissent, the underlying concern is the same: a user had no realistic way of knowing that clicking through would bind them to arbitration. The difference is only in the sequence in which the visibility problem occurred: at the assent stage in Tejon, and at the delegation stage in the Airbnb dissent.
Together, these cases suggest that conspicuousness is not a one-time hurdle cleared at the moment of assent, but rather that it runs through the entire sequence of online arbitration enforcement. A company that clears the assent threshold with a proper clickwrap may still face scrutiny over whether arbitration-related consequences buried in incorporated rules were visible enough to bind the user.
But as Airbnb shows, that hurdle can be cleared. A company that uses a browsewrap agreement may never get that far.
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The author, who just completed her first year at the Northeastern University School of Law in Boston, is a 2026 CPR summer intern.
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