Roger Tejon v. Zeus Networks, LLC

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11114
____________________
ROGER TEJON,
individually and on behalf of,
all others similarly situated,
Plaintiff-Appellee,
versus
ZEUS NETWORKS, LLC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:24-cv-20498-PCH
____________________
Before R OSENBAUM , BRANCH, and K IDD, Circuit Judges.
K IDD, Circuit Judge:
Zeus Networks, LLC, wants to bind Roger Tejon to an arbi-
tration agreement found on its internet-based platform. But Zeus
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2 Opinion of the Court 24-11114
chose to bury the page containing that agreement behind a hyper-
link that itself was written in small, gray text that Tejon did not have
to click. This text was located beneath large, red action buttons that
Tejon did have to click. Was the hyperlink text enough to put Tejon
on notice that clicking on the large, red buttons would subject him
to binding arbitration? We find that it was not.
I. BACKGROUND
Zeus operates an internet-based platform that offers prere-
corded video programming to those who subscribe to its services.
Roger Tejon visited Zeus’s platform using an Apple iOS device and
subscribed to Zeus’s services.
When Tejon registered for the account with Zeus, he had to
go to a subscription page titled “Choose your plan.” That page pre-
sented the user with two large, red buttons: one for an annual sub-
scription and the other for a monthly subscription. Beneath those
large, red buttons was much smaller, gray, hyperlinked text for
“Terms of Service.” The page looked like this:
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24-11114 Opinion of the Court 3
Notably, the terms of service hyperlink was among the smallest
and least visible text on the page, which also set forth the age re-
striction and the auto-renewal payment structure of the subscrip-
tion. The terms of service hyperlink led to a different page with a
mandatory arbitration clause.
After he subscribed, Tejon used his digital subscription to
view programming on Zeus’s platform while logged into a social
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4 Opinion of the Court 24-11114
media account. Tejon alleges that Zeus shared his viewing history
and personally identifiable information with the social media com-
pany without his consent. Tejon then sued Zeus for violating the
Video Privacy Protection Act, 18 U.S.C. § 2710.
Zeus moved to compel arbitration pursuant to its terms of
service, and it argued that Tejon consented to the terms of service
when he signed up for a Zeus account. After reviewing Zeus’s sub-
scription page, the district court denied Zeus’s motion to compel
arbitration. It concluded that Zeus’s agreement was not conspicu-
ous enough to put a reasonably prudent person on inquiry notice
of the arbitration provision at issue. We review that decision on
appeal.
II. STANDARD OF REVIEW
We review de novo a district court’s denial of a motion to
compel arbitration. JPay, Inc. v. Kobel, 904 F.3d 923, 928 (11th Cir.
2018).
III. DISCUSSION
A. Inquiry Notice
The Federal Arbitration Act (“FAA”) reflects a “liberal fed-
eral policy favoring arbitration.” AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 339 (2011) (citation omitted). But “[t]he federal policy
is about treating arbitration contracts like all others, not about fos-
tering arbitration.” Morgan v. Sundance, Inc., 596 U.S. 411, 418 (2022).
Under the FAA, state law determines whether an arbitration agree-
ment exists. Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d 1325, 1330
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24-11114 Opinion of the Court 5
(11th Cir. 2016). The parties agree that Florida law applies to this
case.
Florida recognizes two categories of internet agreements:
clickwrap agreements and browsewrap agreements. MetroPCS
Commc’ns, Inc. v. Porter, 273 So. 3d 1025, 1028 (Fla. Dist. Ct. App.
2018) (citing Vitacost.com, Inc. v. McCants, 210 So. 3d 761, 762 (Fla.
Dist. Ct. App. 2017)). A clickwrap agreement requires a user to
check a box or click a button to acknowledge acceptance of the
agreement’s terms and conditions. Id. By contrast, a browsewrap
agreement contains hyperlinked terms, and the user’s consent is
implied by continued use of the website. See id. The parties do not
dispute that the arbitration agreement at issue was contained
within a browsewrap agreement on Zeus’s subscription page.
Browsewrap agreements can be problematic because “con-
sumers are frequently left unaware that contractual terms were
even offered, much less that continued use of the website will be
deemed to manifest acceptance of those terms.” Berman v. Freedom
Fin. Network, LLC, 30 F.4th 849, 856 (9th Cir. 2022).1 Florida courts
will enforce such agreements only if the “purchaser has actual
knowledge of the terms and conditions, or when the hyperlink to
the terms and conditions is conspicuous enough to put a
1 Berman is a Ninth Circuit decision that applies either New York or California
law. Still, it is a good articulation of the same principles that Florida law em-
bodies. For example, Florida’s Third District Court of Appeal in Miami Dol-
phins applied Berman when assessing conspicuousness. Mia. Dolphins, Ltd. v.
Engwiller, 410 So. 3d 685, 689–90 (Fla. Dist. Ct. App. 2025). Plus, Berman applies
similar law to closely analogous facts.
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6 Opinion of the Court 24-11114
reasonably prudent person on inquiry notice.” MetroPCS Commc’ns,
273 So. 3d at 1028 (quoting Vitacost.com, 210 So. 3d at 762). The
parties in this case focus on whether Tejon had inquiry notice of
the arbitration clause.
To determine whether a hyperlink is sufficiently conspicu-
ous, Florida law requires an evaluation of the general design and
content of the page containing the hyperlink. See, e.g., Vitacost.com,
210 So. 3d at 763–64, 766 (finding hyperlink was not sufficiently
conspicuous where purchaser had to scroll through multiple pages
before the hyperlink appeared at the very bottom of the seller’s
webpage); Mia. Dolphins, Ltd. v. Engwiller, 410 So. 3d 685, 689–90
(Fla. Dist. Ct. App. 2025) (holding hyperlink was sufficiently con-
spicuous to place a reasonable user on inquiry notice where the hy-
perlink was bolded, appeared in a brightly colored ink, and was dis-
played at the center of the page).
Anyone who seeks to enforce an arbitration clause through
a browsewrap agreement must prominently display the hyperlink
that leads to the clause. “Consumers cannot be required to hover
their mouse over otherwise plain-looking text or aimlessly click on
words on a page in an effort to ferret out hyperlinks.” Mia. Dolphins,
410 So. 3d at 689 (citation modified). In other words, the “inquiry
notice standard demands conspicuousness tailored to the reasona-
bly prudent Internet user, not to the expert user, [so] the design of
the hyperlinks must put such a user on notice of their existence.”
Berman, 30 F.4th at 857 (citing Nguyen v. Barnes & Noble Inc., 763 F.3d
1171, 1177, 1179 (9th Cir. 2014)).
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24-11114 Opinion of the Court 7
Relevant design elements include the location of the hyper-
link on the page, its proximity to buttons the user must click, and
its font size, format, and color. See Mia. Dolphins, 410 So. 3d at 689–
90. Also relevant is whether the page provided an explicit textual
notice that taking a certain action would constitute acceptance of
the website’s terms. See Berman, 30 F.4th at 858 (finding the notice
“I understand and agree to the Terms & Conditions” failed to ex-
plicitly notify users of the action they must take to consent to those
terms and conditions because it lacked language such as, “By click-
ing the Continue >> button, you agree to the Terms & Condi-
tions”).
Zeus’s hyperlink was not conspicuous. First, Zeus placed it
beneath two large, red action buttons that were prominently fea-
tured at the center of the page. When important terms are placed
below a highly conspicuous action button, it is not reasonable to
assume that users will continue scrolling past the action button. See
Vitacost.com, 210 So. 3d at 765 (“Uniformly, courts have declined to
enforce browsewrap agreements when the hyperlink to the terms
and conditions is buried at the bottom of the page . . . .” (citation
modified)); Specht v. Netscape Commc’ns. Corp., 306 F.3d 17, 31–32 (2d
Cir. 2002) (finding that placement of a notice of license terms be-
low a download button was “not sufficient to [put] consumers on
inquiry . . . notice of those terms”).
We next examine the font size of the notice. The critical text
“must be displayed in a font size and format such that the court can
fairly assume that a reasonably prudent Internet user would have
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8 Opinion of the Court 24-11114
seen it.” Berman, 30 F.4th at 856; see, e.g., Mia. Dolphins, 410 So. 3d
at 689–90. Zeus’s terms of service hyperlink is printed in a small
font on the bottom half of the page. It is easy to overlook given the
larger font sizes and bolder colors of other elements on the page.
Berman, 30 F.4th at 857 (“The comparatively larger font used in all
of the surrounding text naturally directs the user’s attention every-
where else.”). Although “Terms of Service” is underlined, indicat-
ing the presence of a hyperlink, it is otherwise indistinguishable
from the informational text of the same size and color surrounding
it.
As to color, all the text below the red action buttons, includ-
ing the hyperlinked terms, appears in a dim, gray color. In Berman,
the Ninth Circuit also considered whether a hyperlink appearing
“in a tiny gray font,” without more, sufficiently drew a user’s atten-
tion. Berman, 30 F.4th at 854. The court found that it did not. Id. at
856–57. The Ninth Circuit opined, “[W]hile it is permissible to dis-
close terms and conditions through a hyperlink, the fact that a hy-
perlink is present must be readily apparent.” Id. at 857. “Simply un-
derscoring words or phrases . . . will often be insufficient to alert a
reasonably prudent user that a clickable link exists.” Id. The court
noted that customary design elements that signal the existence of
a hyperlink, such as “the use of a contrasting font color (typically
blue) and the use of all capital letters,” could indicate to users that
the text is not ordinary but instead provides a clickable pathway to
another page. Id.; see, e.g., Mia. Dolphins, 410 So. 3d at 689–90.
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24-11114 Opinion of the Court 9
As in Berman, Zeus’s hyperlink is not highlighted in a differ-
ent color and is not in all capital letters. The surrounding clutter
regarding payment details and age requirements competes for the
user’s attention and further obscures the terms. Cf. Meyer v. Uber
Techs., Inc., 868 F.3d 66, 78 (2d Cir. 2017) (finding a browsewrap
agreement that was hyperlinked in a blue color and underlined pro-
vided reasonably conspicuous notice where the payment screen
was “uncluttered, with only fields for the user to enter his or her
credit card details, buttons to register for a user account . . . , and
the warning that ‘By creating an . . . account, you agree to the
TERMS OF SERVICE & PRIVACY POLICY’”).
Finally, and notably, Zeus’s terms of service notice simply
does not say anything about arbitration. It would have been simple
enough for Zeus to state plainly that clicking on one of the red
buttons would subject any dispute between the user and Zeus to
binding arbitration. Zeus’s hyperlink text also could have said
“ARBITRATION AGREEMENT.” Zeus chose instead to place the
provision on a separate terms of service page. Having made that
choice, it was required to design its website to ensure that a reason-
able user would know to click to view the terms of service page,
and it failed to do so.
None of the things that we have discussed—location on the
page, font size, contrasting color, capital letters, underlining, infor-
mational 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
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10 Opinion of the Court 24-11114
agreement at issue. The internet site owner may utilize some com-
bination 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.
We find that Tejon was not on inquiry notice of the terms
of service or the arbitration agreement.
B. Incorporation
Zeus also urges us to find that Tejon’s subscription agree-
ment, via the hyperlinked terms of service, incorporated the clause
requiring disputes to be arbitrated. Because we find that Tejon was
not on inquiry notice of the terms of service, we need not reach
Zeus’s incorporation argument.
IV. CONCLUSION
We AFFIRM the district court’s order denying the motion
to compel arbitration.
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24-11114 B RANCH, J., Dissenting 1
B RANCH, Circuit Judge, dissenting:
In 2023, Roger Tejon subscribed to Zeus Networks, LLC’s
subscription video platform by clicking on a button in the center of
Zeus’s subscription webpage. Directly under that button was a hy-
perlink leading prospective customers to Zeus’s terms of service,
including a mandatory arbitration clause. Was that hyperlink con-
spicuous enough to put Tejon on inquiry notice of the terms and
conditions—including the compulsory arbitration clause therein—
such that Tejon agreed to be bound by those terms when he sub-
scribed to Zeus’s service? The Majority, affirming the district
court, concludes not; I disagree.
Tejon was on notice of the conspicuous hyperlink to the
terms of service. The hyperlink was centrally positioned directly
beneath the action buttons, where the user’s attention is easily
drawn; colored in light gray to contrast with the black background;
underlined; appeared the same size as most of the text on the page;
and set apart from a block of text below. A reasonably prudent
person would not have missed it. Thus, I would reverse the district
court and compel Tejon to participate in arbitration pursuant to
Zeus’s terms of service. Accordingly, I respectfully dissent.
I. BACKGROUND
In November 2023, Tejon visited Zeus’s website and sub-
scribed using an iOS device. Zeus’s subscription page appeared as
follows:
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24-11114 B RANCH, J., Dissenting 3
neither party alleges that Tejon in fact clicked the “Terms of Ser-
vice” hyperlink, located just beneath the red subscription buttons,
and viewed its contents. Had Tejon clicked the “Terms of Service”
hyperlink, he would have navigated to a page containing Zeus’s
terms of service, including a mandatory arbitration clause requir-
ing users to arbitrate “any dispute with [Zeus] arising out of or re-
lating to [their] purchase or viewing of [Zeus’s] Program or sub-
scription channel.”
After subscribing, Tejon sued Zeus alleging that it misused
his personal data by sharing it with third parties without authoriza-
tion. Zeus moved to compel arbitration based on the mandatory
arbitration clause in its terms of service.
The district court denied Zeus’s motion to compel arbitra-
tion. It found that the “color, size, positioning, language, and de-
sign of the hyperlink and its accompanying text” “weigh[ed] in fa-
vor of finding that the hyperlink and related text fail[ed] to provide
inquiry notice” of the arbitration provision, “rendering the provi-
sion unenforceable.” According to the district court, “Zeus did not
sufficiently bold, enlarge, or display its hyperlinks in the usual blue
font,” and thus the hyperlink was “overshadowed by large, bright
red action buttons above [it].”
Zeus timely appealed.
II. STANDARD OF REVIEW
“We review de novo a district court’s denial of a motion to
compel arbitration.” Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d
1325, 1328 (11th Cir. 2016).
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4 B RANCH, J., Dissenting 24-11114
III. DISCUSSION
The contract formation issue in this case concerns an elec-
tronic contract. Under Florida law,2 courts treat the issue of mu-
tual assent (i.e., offer and acceptance) differently depending on
whether the user agreement is a clickwrap or browsewrap agree-
ment. Vitacost.com, Inc. v. McCants, 210 So. 3d 761, 762 (Fla. 4th
DCA 2017).
Clickwrap agreements require a purchaser to affirmatively
acknowledge acceptance of the sale’s terms and conditions before
completing a transaction. Id. Browsewrap agreements, on the
other hand, are websites that “merely provide[] a link to the terms
and conditions and do[] not require the purchaser to click an
acknowledgement during the checkout process.” Id. The parties
agree that Zeus’s subscription page is a browsewrap agreement.
In Florida, browsewrap agreements are enforceable only
“when the purchaser has actual knowledge of the terms and condi-
tions, or when the hyperlink to the terms and conditions is conspic-
uous enough to put a reasonably prudent person on inquiry notice”
of the terms and conditions. Id.; see also MetroPCS Commc’ns Inc. v.
Porter, 273 So. 3d 1025, 1028 (Fla. 3d DCA 2018). The parties do
not dispute that Tejon did not have actual knowledge of Zeus’s
terms of service in general or the arbitration clause specifically.
2 Whether a party to a contract has entered an agreement to arbitrate is deter-
mined under “ordinary state-law principles that govern” contract formation.
First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Here, the parties
do not dispute that Florida law applies.
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24-11114 B RANCH, J., Dissenting 5
Thus, I focus on whether Zeus’s terms of service hyperlink with
the arbitration provision was “conspicuous enough to place a rea-
sonably prudent person on inquiry notice.” Vitacost.com, 210 So.
3d at 762.3
Whether a hyperlink is conspicuous enough to put a reason-
ably prudent person on inquiry notice is a “fact-intensive inquiry”
under which “the design and content of the relevant interface are
especially relevant.” Eglin Fed. Credit Union v. Baird, 400 So. 3d 643,
647 (Fla. 1st DCA 2024) (quotation omitted), jurisdiction accepted on
other grounds, No. 2025-0221, 2025 WL 2555729 (Fla. Sept. 4, 2025)
(mem.). Florida courts have looked to a variety of webpage fea-
tures in analyzing browsewrap agreements. See id. at 647–48; see
also Miami Dolphins, Ltd. v. Engwiller, 410 So. 3d 685, 689–90 (Fla. 3d
DCA 2025); Vitacost.com, 210 So. 3d at 762–65. While certain fea-
tures like webpage and hyperlink design, size, and positioning may
emerge from the cases as aspects that courts analyze when deter-
mining inquiry notice, no Florida court has yet broken down the
3 Florida courts have handled few cases concerning the conspicuousness of hy-
perlinks in the context of browsewrap-type webpages. Of these, only two
cases, Miami Dolphins and Vitacost.com, involve analogous fact scenarios in-
volving webpages. See Miami Dolphins, 410 So. 3d at 689–90; Vitacost.com, 210
So.3d at 762–65. Other Florida cases involve text and e-mail messages, which
are meaningfully different. See e.g., Eglin Fed. Credit Union, 400 So. 3d at 645-
46 (email notice); MetroPCS Commc’ns Inc., 273 So. 3d at 1026-27 (text mes-
sages). As such, my analysis relies heavily on Vitacost.com and Miami Dolphins
and cites to other cases only to the extent that they stand for generally appli-
cable principles.
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6 B RANCH, J., Dissenting 24-11114
analysis into distinct factors for courts to consider separately.4 See
Miami Dolphins, 410 So. 3d at 689–90; Vitacost.com, 210 So. 3d at
762–65; MetroPCS, 273 So. 3d at 1028–29; Eglin Fed. Credit Union, 400
So. 3d at 648. As such, I decline to follow the Majority’s approach,
and instead follow the Florida courts’ holistic method.
i. Zeus’s Hyperlink was Conspicuous
I begin with the two principal browsewrap webpage cases
decided by Florida courts, Miami Dolphins and Vitacost.com, each
providing an example of conspicuous and inconspicuous hyperlink
designs, respectively. In Miami Dolphins, the Third District Court
of Appeal of Florida (“DCA”) found the terms of use hyperlink in
the image below conspicuous because it “was displayed on the cen-
ter of the page” and was “offset” from the few other features on the
page—log-in fields, a sign-in button, and a temporary account up-
date notice:
4 The Majority uses five separate factors as guardrails for its analysis: hyperlink
location and proximity to action buttons; font size, format, and color; and
whether the page provides an explicit textual notice that taking an action con-
stitutes acceptance of the hyperlinked terms. While Florida courts have cer-
tainly looked to those factors in substance, they have not expressly identified
them such that we can state, definitively, that they reflect the Florida courts’
chosen analytical structure.
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8 B RANCH, J., Dissenting 24-11114
Id. at 689. Finally, the hyperlink was “prominently placed” “be-
tween the two log-in fields—username and password—and the
sign-in button.” Id. Put simply, it was placed in direct proximity
to the page features which unavoidably drew the user’s attention.
See id., at 689–90; see also Derriman v. Mizzen & Main LLC, 710 F.
Supp. 3d 1129, 1140 (M.D. Fla. 2023) (concluding that hyperlink
was conspicuous when “prominently placed” next to a “‘GET 15%
OFF’ button”); Kravets v. Anthropologie, Inc., 2022 WL 1978712, at
*4–5 (S.D. Fla. June 6, 2022) (holding that hyperlinks were conspic-
uous when located directly above a “GET FREE SHIPPING
NOW” button); Bell v. Royal Seas Cruises, Inc., 2020 WL 5639947, at
*6 (S.D. Fla. Sept. 21, 2020) (concluding that hyperlink was conspic-
uous when placed directly above a “Continue” button that the user
had to click).6
In contrast, the court in Vitacost.com found Vitacost’s terms
of service hyperlink to be inconspicuously located on the webpages
at issue in that case. 210 So. 3d at 762–66. The locations of Vita-
cost’s terms of service hyperlink on the webpages are shown in the
following two images. The first image is a screenshot of the bot-
tom of Vitacost’s product page, where its standard terms of service
hyperlink could be located after scrolling a significant distance:
6 I rely on these three district court cases because the specific analogous facts I
cite here were quoted with approval by the DCA in Miami Dolphins in reaching
its conclusion that the hyperlink at issue there was conspicuous.
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10 B RANCH, J., Dissenting 24-11114
Id. at 764. As the images above show, the terms of service hyper-
link was placed far from the action points that would draw the rea-
sonably prudent user’s attention and appeared in small text, at the
bottom of pages filled with extensive, larger text and multiple im-
ages. Vitacost.com, 210 So. 3d at 763–64.
The first image is particularly illustrative—it shows the hy-
perlink “buried at the bottom of the page” which a user could only
reach if he “scroll[ed] through multiple pages of products before
reaching the bottom [of the page] where the link [was] located.”
Id. at 763, 765; see also MetroPCS Commc’ns, 273 So. 3d at 1028–29
(noting that a hyperlink “buried in pages of information or hidden
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24-11114 B RANCH, J., Dissenting 11
at the foot of a webpage” is not conspicuous enough to give rise to
inquiry notice).
Even in the second image, which is a single webpage (no
scrolling necessary) with the hyperlink appearing (per affidavits) in
“bright blue font,” the hyperlink is buried in the bottom right cor-
ner of the screen, far from the features likely to draw attention.
Vitacost.com, 210 So. 3d at 763–64 (quotations omitted). As such, it
is no surprise that the DCA concluded that Vitacost’s terms of ser-
vice hyperlink was inconspicuously positioned such that a reason-
ably prudent person would not be on inquiry notice. Id. at 765–66.
In this case, the design of Zeus’s webpage is closely analo-
gous to the one in Miami Dolphins, and quite unlike the one in Vit-
acost.com. Like the webpage in Miami Dolphins, Zeus’s webpage
had few features, centrally located in a basic contrasting color
scheme with text and no images, making the hyperlink easy for a
reasonably prudent person to locate. Unlike in Vitacost.com, Zeus
has not cluttered its webpage with a slew of extraneous infor-
mation—only what is necessary is included—all of which is availa-
ble on a single page, no scrolling required. The hyperlink’s color,
while the same light gray as the other text, nonetheless starkly con-
trasted with the black background, making the hyperlink visible
and readable. Furthermore, the hyperlink was underlined which,
as the Majority notes, commonly indicates that the underlined web
text is hyperlinked, further drawing the user’s attention. See Miami
Dolphins, 410 So. 3d at 689 (indicating that the hyperlink was
bolded); see also id. at 690 (noting that hyperlinks are made more
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12 B RANCH, J., Dissenting 24-11114
conspicuous when they are “bold and underlined” (citing Kravets,
2022 WL 1978712, at *4–5)). Finally, the hyperlink is positioned
next to the bright red action buttons—which unavoidably attract
the user’s attention—increasing the hyperlink’s prominence.
Thus, Zeus’s terms of service hyperlink is conspicuous to the rea-
sonably prudent person.
ii. The Majority’s Errors
Despite the facts and caselaw explained above, the Majority
concludes that the hyperlink is inconspicuous. Its analysis, how-
ever, suffers from two flaws: first, it relies heavily on non-preceden-
tial, out-of-state caselaw that distorts its analysis; and second, the
Majority concludes that the hyperlink’s location immediately be-
neath the action buttons is a flaw, not a feature, of its design. I
address each error in turn.
The first error is that the Majority unnecessarily rests signif-
icant portions of its analysis on out-of-state cases. These are Berman
v. Freedom Financial Network, LLC, 30 F.4th 849 (9th Cir. 2022), a
Ninth Circuit case applying New York and California law; as well
as Meyer v. Uber Technologies, Inc., 868 F.3d 66 (2d Cir. 2017) and
Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002),
two Second Circuit cases applying California law. But even though
Florida courts have cited to some parts of these cases, Florida
caselaw—like Miami Dolphins and Vitacost.com—remains the bind-
ing authority governing this analysis, whereas the analyses of these
out of state cases are merely persuasive except to the extent a Flor-
ida court has squarely adopted them. Only Berman can claim that
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24-11114 B RANCH, J., Dissenting 13
distinction—the Florida courts merely referenced the other two
cases for broad, general principles of contract formation law rather
than adopting any part of their dispositive reasoning. See Eglin, 400
So. 3d at 647 (citing Meyer for the proposition that the conspicuous-
ness analysis is a fact-intensive inquiry); Vitacost.com, 210 So. 3d at
762 (citing Specht within a quote of another case, Nguyen v. Barnes
& Noble, Inc., 763 F.3d 1171, 1175–76 (9th Cir. 2014), for the prop-
osition that mutual assent is the “touchstone of contract,” even
online (quotations omitted)).
As for Berman, while the court in Miami Dolphins quoted two
parts of the Ninth Circuit’s reasoning, both are consistent with my
analysis above. First, the DCA adopted the proposition that “con-
sumers cannot be required to hover their mouse over otherwise
plain-looking text or aimlessly click on words on a page in an effort
to ferret out hyperlinks.” Miami Dolphins, 410 So. 3d at 689 (quot-
ing Berman, 30 F.4th at 857) (quotation omitted and alterations
adopted). No issue here, as Zeus’s terms of service hyperlink was
underlined, marking it as different from surrounding text. Second,
in concluding that the hyperlink in question was sufficiently con-
spicuous to give a user proper notice, the DCA cited Berman, ex-
plaining in a parenthetical that
A web designer must do more than simply un-
derscore the hyperlinked text in order to ensure
that it is sufficiently set apart from the surround-
ing text. Customary design elements denoting
the existence of a hyperlink include the use of a
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14 B RANCH, J., Dissenting 24-11114
contrasting font color (typically blue) and the
use of all capital letters, both of which can alert
a user that the particular text differs from other
plain text in that it provides a clickable pathway
to another webpage.
Miami Dolphins, 410 So. 3d at 689–90 (quoting Berman, 30 F.4th at
857). Again, no issue here. As I explained above, Florida takes a
holistic approach to determining if a webpage has done enough to
make a hyperlink conspicuous—no single “customary design ele-
ment” is the sine qua non of conspicuousness. Id. True, Zeus’s hy-
perlink did not use all caps or a font color that contrasted from the
color of the other text on the page; but for all the reasons I set out
above, Zeus did more than enough to make the terms of service
hyperlink easy to identify and conspicuously located within an un-
cluttered webpage, consistent with controlling Florida caselaw.
The second error of the Majority is in concluding that Zeus
made the hyperlink inconspicuous by placing the “[terms of ser-
vice] hyperlink . . . beneath two large, red action buttons that were
prominently featured at the center of the page” (emphasis added).
But I can find no Florida case announcing a rule that placing a hy-
perlink below a webpage’s action points, regardless of proximity,
always decreases its conspicuousness. Rather, Florida caselaw sug-
gests the opposite conclusion: that proximity to action buttons,
whether above or below, is a feature, not a flaw. For instance,
while the hyperlink in Miami Dolphins was placed just above the
action “Sign In” button, nothing in the DCA’s analysis suggests that
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24-11114 B RANCH, J., Dissenting 15
the placement of the hyperlink above, and not below, the action
button was of any significance. See Miami Dolphins, 410 So. 3d at
689–90. Instead, the DCA emphasizes that the general placement
of the hyperlink among the action features enhanced its conspicu-
ousness, id., just as the court in Vitacost.com frowned on the hyper-
link’s position far from the action points. See Vitacost.com, 210 So.
3d at 763–65. Thus, what matters is not whether a hyperlink like
Zeus’s is above or below action buttons, but whether its position
attracts a user’s attention in the context of its surrounding
webpage. Here, Zeus’s hyperlink is prominently placed in an at-
tention-grabbing location next to the action buttons that draw a
user’s attention. That design is enough to place a reasonably pru-
dent person on inquiry notice under Florida law.
IV. CONCLUSION
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 man-
datory arbitration clause, and would reverse the district court. I
respectfully dissent.
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