11th Circuit Rejects TOS Formation–Tejon v. Zeus

Prior blog post. This 11th Circuit decision involves the following screen: In a split opinion, a majority says this TOS formation failed: Zeus chose to bury the page containing that agreement behind a hyperlink 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. * * * As usual, the majority starts with the wrap taxonomy. The majority says that there are only two wrap options: clickwrap or browsewrap. I wish there were zero nodes on the wrap taxonomy, but if we’re going to have a taxonomy, two nodes is too few to capture the diversity of TOS formation practices. Importantly, the majority doesn’t leave room to categorize the screen as a “sign-in-wrap,” which is how I think it would be how other circuits characterize it.…