Hunton Retail Law Resource

Your arbitration clause may be solid. But your screen flow needs to be clear if you want a court to enforce it. 

Courts continue to evaluate online arbitration agreements under ordinary state-law contract formation principles: did the customer receive reasonably conspicuous notice, and did the customer take the action the site said would constitute assent? 

In practice, this means courts are not just reading the clause – they are also scrutinizing the online user interface around it. They are looking at clutter, button placement, hyperlink visibility, font size, and whether the page clearly tells the user what clicking means.  

For retailers, the message is straightforward: a strong arbitration clause can still fail if the checkout or sign-up flow does not present it clearly. Retailers should expect courts to continue asking the same practical questions about notice and assent: 

• Is the page clean and easy to read, or crowded with distractions? 

• Is the notice directly above or below the button the customer actually clicks? 

• Does the hyperlink actually look like a hyperlink? 

• Does the text expressly say that by clicking, the user agrees to the terms? 

• Does the transaction look like the kind of relationship where users would expect governing terms—like a membership or subscription? 

Recent cases show that small differences in online flow and page design can make the difference between enforcement and no agreement at all. 

In Dahdah v. Rocket Mortgage, LLC, 166 F.4th 556 (6th Cir. 2026), the Sixth Circuit enforced an arbitration agreement where the site told users that “By clicking the button above,” they agreed or consented to the Terms of Use, and the user clicked the identified buttons. The court emphasized the simple page design, the notice directly below the action buttons, and the bright blue hyperlink, even though the text was small. The court also viewed the mortgage-referral service as more than a one-off interaction because users would expect continuing contact with lenders. 

And Tejon v. Zeus Networks, LLC, 174 F.4th 1322 (11th Cir. 2026), shows how small design choices can drive the outcome in online assent cases. There, the question was whether the subscription page gave reasonable notice, including whether the hyperlink to the terms containing the arbitration agreement—displayed in small, gray text beneath large red subscription buttons—was conspicuous enough to put a reasonable user on inquiry notice. The court found that it was not, and therefore that Tejon was not on inquiry notice of the terms of service or the arbitration agreement.  

Other circuits have applied similar factors and reached different results depending on the specific design features and surrounding facts. See, e.g., Domer v. Menard, Inc., 116 F.4th 686 (7th Cir. 2024); Chabolla v. ClassPass Inc., 129 F.4th 1147 (9th Cir. 2025). 

The takeaway is simple: arbitration language is not just a drafting issue. It is a presentation issue too. Inhouse counsel may need to work with web designers to ensure that terms are conspicuously disclosed. A cleaner flow—with clear language, clear placement, and clear visual cues—materially improves the odds that a court will find notice and assent.