Eleventh Circuit Affirms: Website Terms Must Be Clear and Conspicuous to Create Binding Arbitration Agreements
Valiente v. NexGen Global Highlights Critical Website Design Flaws in TCPA Defense
The Eleventh Circuit’s recent decision in Valiente v. NexGen Global, LLC, No. 23-13308 (11th Cir. Nov. 10, 2025), offers essential guidance for businesses using arbitration clauses to manage legal disputes. The court’s thorough analysis demonstrates how poor website design and unclear Terms of Service can undermine even the most carefully drafted arbitration provisions, particularly in TCPA litigation.
Case Background
Heriberto Valiente sued NexGen Global in August 2022, alleging violations of the Telephone Consumer Protection Act (TCPA) and Florida’s Telephone Solicitation Act. Valiente claimed NexGen sent unsolicited telemarketing messages to his phone number, which was registered on the National Do-Not-Call Registry, without obtaining prior express consent.
NexGen moved to compel arbitration under the Federal Arbitration Act, arguing that when Valiente purchased products from its website in February 2022, he agreed to Terms of Use containing an arbitration provision. The district court denied the motion, and NexGen appealed.
NexGen’s Three Theories of Agreement
NexGen advanced three distinct theories to establish that Valiente had agreed to arbitrate:
1. Browsewrap Agreement
NexGen argued its website created an enforceable browsewrap agreement through a “Terms of Use” hyperlink accessible on each page. The company contended the hyperlink was conspicuous enough to give Valiente “inquiry notice” of the terms.
The Court’s Analysis: The Eleventh Circuit rejected this theory, finding the Terms of Use hyperlink was:
- Located at the bottom of a crowded, busy webpage
- Displayed in small, white font that didn’t stand out
- Not underlined, blue, or otherwise visually distinguished as a clickable link
- Surrounded by distracting content, including large green call-to-action buttons
- Never accompanied by language explaining that using the website constituted agreement to the terms
The court emphasized that under both Florida and California law, browsewrap agreements face heightened enforceability burdens and are only valid when the hyperlink is conspicuous enough to put a reasonably prudent person on inquiry notice.
2. Clickwrap Agreement
NexGen also argued that Valiente entered a clickwrap agreement by clicking a “Go To Step #2” button at checkout. Below this button was text stating: “By clicking ‘Go To Step #2’ above, I consent to receive from Nexgen emails, calls, and SMS text messages at any time, which could result in wireless charges, at the number provided above. I understand that consent is not a condition of purchase.”
NexGen claimed this button represented consent to its “Messaging Program,” which was “governed by” the Terms of Use containing the arbitration clause.
The Court’s Analysis: The court found this theory failed because the button’s language only mentioned consent to receive marketing communications; it said nothing about arbitration or broader Terms of Use. The explicit mention of “emails, calls, and SMS text messages” without reference to arbitration actually suggested users were not agreeing to additional terms.
As the court noted, under both Florida and California law, clickwrap agreements require that users be directed to terms and acknowledge having read them, none of which occurred here.
3. Double Opt-In
Finally, NexGen argued Valiente “double-opted in” to the arbitration agreement by confirming his email address after purchase, which allegedly enrolled him in the Messaging Program governed by the Terms of Use.
The Court’s Analysis: The court rejected this theory because NexGen failed to provide the actual confirmation email or any documentation showing what Valiente agreed to during this process. Without evidence of the email’s contents, NexGen couldn’t prove Valiente was directed to or agreed to the arbitration provision.
Key Legal Principles
The Eleventh Circuit’s decision reinforces several fundamental principles about online contract formation:
Burden of Proof
Under both California and Florida law, the party seeking to compel arbitration bears the burden of proving an enforceable arbitration agreement exists. This burden is analogous to the summary judgment standard; the moving party must show that no genuine dispute of material fact exists regarding contract formation.
Mutual Assent Required
Arbitration is strictly a matter of consent, and parties cannot be forced to arbitrate disputes they haven’t agreed to submit to arbitration. The touchstone of contract formation remains mutual assent; both parties must manifest agreement to the same terms.
Heightened Scrutiny for Browsewrap
Florida law imposes a heightened burden on parties seeking to enforce browsewrap agreements compared to clickwrap agreements. Courts have uniformly declined to enforce browsewrap agreements when hyperlinks are buried at the bottom of webpages and sites never direct users to review them.
The Federal Trade Commission’s guidance on dark patterns similarly emphasizes that businesses must clearly and conspicuously disclose material terms.
California’s Skepticism of Constructive Notice
California courts have expressed particular skepticism about charging parties with knowledge they don’t actually possess, noting that even conspicuous hyperlinks may be insufficient because prudent internet users might not know to click them and review the terms.
Practical Takeaways for Businesses
The Valiente decision offers critical lessons for any business operating online, particularly those engaged in digital marketing or text message campaigns subject to TCPA compliance requirements:
1. Design Matters Profoundly
Website and app consent architecture must be carefully designed to create enforceable agreements. Consider:
- Visual prominence: Terms of Use links should be in contrasting colors, underlined, and clearly distinguished as hyperlinks
- Strategic placement: Place terms above and near action buttons, not buried at the bottom of pages
- Clear association: Explicitly connect user actions (button clicks, purchases) with agreement to terms (“by checking this box, I affirm that I have read and agree to…”)
- Reduced clutter: Minimize distracting elements that draw attention away from important disclosures
2. Explicit Language Is Essential
The “Go To Step #2” button in Valiente demonstrates a common mistake: mentioning some obligations (receiving marketing messages) while remaining silent about others (arbitration, broader terms). This approach can backfire under the expressio unius est exclusio alterius principle—expressing one thing implies exclusion of others.
Instead, language should explicitly state that proceeding constitutes agreement to all Terms of Use, including arbitration provisions. For example: “By clicking below, I agree to receive marketing communications AND accept the [Terms of Use] and [Privacy Policy], including the arbitration provision.”
3. Don’t Rely on Incorporation by Reference
NexGen’s attempt to incorporate Terms of Use through reference to a “Messaging Program” failed. The court found that clicking a button agreeing to receive text messages didn’t reasonably put users on notice they were also agreeing to arbitrate disputes.
When arbitration provisions are critically important (as they often are in TCPA litigation), they should be:
- Directly referenced in consent language
- Separately acknowledged through checkboxes
- Highlighted in confirmation emails
- Clearly disclosed before the transaction is completed
4. Document Everything
NexGen’s “double opt-in” theory failed partly because it didn’t provide copies of the confirmation email or documentation of the opt-in process. When defending contract formation, businesses need contemporaneous evidence showing:
- What users actually saw
- What they clicked or agreed to
- When agreements were made
- The exact terms presented
Maintaining screenshot archives, preserving email templates, and documenting website versions becomes essential evidence in litigation.
5. TCPA Compliance Requires Special Care
The Valiente case arose from TCPA claims, an area where proper consent documentation is particularly crucial. The TCPA and similar state laws require “prior express written consent” for marketing calls and texts to cell phones, with specific content and disclosure requirements outlined in FCC and relevant state regulations.
Businesses cannot simultaneously obtain consent for marketing communications and arbitration through vague or poorly designed website flows. Each type of consent has distinct legal requirements and should be obtained through clearly differentiated mechanisms.
6. Clickwrap Beats Browsewrap
Courts have reached consistent conclusions when evaluating enforceability, generally finding clickwrap agreements enforceable and browsewrap agreements unenforceable.
Businesses should implement true clickwrap mechanisms that:
- Present terms directly (not just as distant hyperlinks)
- Require affirmative action to accept (checking boxes, clicking “I Accept”)
- Block progression until acceptance is given
- Confirm what users are agreeing to
7. State Law Variations Matter
The Eleventh Circuit analyzed both Florida and California law, finding them aligned in this case. However, online contract formation law varies by jurisdiction. The Uniform Electronic Transactions Act provides a framework adopted by most states, but specific requirements differ.
The Intersection of TCPA, Arbitration, and Website Design
The Valiente case sits at a critical intersection: companies facing TCPA and related litigation often seek to enforce arbitration clauses to avoid class actions and reduce litigation costs (though arbitration is not always the right dispute resolution choice). However, this strategy only works if the arbitration agreement was properly formed.
The irony in Valiente is that NexGen allegedly obtained Valiente’s “consent” to receive marketing messages (the very issue in the TCPA case) through the same flawed website design that failed to establish consent to arbitrate. This highlights a broader problem: businesses sometimes focus intensely on one legal requirement (like TCPA consent language) while neglecting the contract formation principles that make any online agreement enforceable.
Moving Forward: Best Practices
In light of Valiente and similar decisions, businesses should:
- Audit existing websites and apps to identify contract formation weaknesses
- Implement layered consent that separates consent for regulatory compliance (TCPA, privacy laws) from contractual terms (arbitration, warranties, limitations of liability)
- Test user experience to ensure terms are actually noticed and understood
- Document the user journey with screenshots and preserved code as well as records of consent
- Regularly review terms presentation as website designs evolve
- Consult legal counsel before launching new consent flows or updating existing ones
Conclusion
Valiente v. NexGen Global serves as a cautionary tale: even sophisticated businesses with well-drafted arbitration provisions can find them unenforceable due to website design and disclosure failures. In an era where online commerce dominates and text message marketing proliferates, proper consent architecture isn’t just good practice; it’s essential legal protection.
For businesses engaged in digital marketing, e-commerce, or any activity potentially subject to TCPA claims, the message is clear: invest in properly designed, legally compliant Terms of Service presentation. The cost of getting it right pales in comparison to losing the ability to enforce critical arbitration provisions when litigation arises.
