Court Finds Pre-Checked Disclosure Acceptance Box Still “Clickwrap”; Compels Arbitration of TCPA Case

Dorsey’s TCPA team is already renowned for obtaining first-in-the-nation results.   

 Adding to that pile, Dorsey aided GoSmith, Inc. this week in obtaining a ruling compelling arbitration under facts that have long escaped direct judicial review.   

The setup is routine enough: the Plaintiff encounters a website containing a “click” button accompanied by a check box acknowledging the review and acceptance of certain terms and conditions. Among those terms and conditions is an arbitration provision. While a pile of cases say that checking the terms and conditions box and then “clicking” the registration button creates an enforceable “clickwrap” contract, what happens if the terms and conditions box is already checked by default when the user encounters the page?

That was the question before the Court in La Force v. Gosmith, Inc., No. 17-cv-05101-YGR, 2017 U.S. Dist. LEXIS 204500, at *8 (N.D. Cal. Dec. 12, 2017).  Despite the rather novel issue, the Court had no problem concluding that GoSmith’s website was perfectly “clickwrap” in nature. The terms and conditions were accepted by the user via a clear demonstration of assent—the clicking of a registration button—and was different than the “browsewrap” scenario where the user is deemed to have accepted terms and conditions merely by looking at the website. It mattered not that the terms and conditions box was already checked; the registration process still plainly demonstrated assent to the terms and conditions.  The Court, therefore, enforced the cyber contract and compelled the Plaintiff to arbitrate his claims.  No sweat.

Eric Troutman

Eric Troutman

Eric is one of the country’s prominent Telephone Consumer Protection Act (TCPA) defense attorneys, having served as lead defense counsel on over 30 nationwide TCPA class actions and having handled hundreds of individual TCPA cases. He also “wrote the book” on TCPA defense, having co-authored the nation’s first comprehensive practice guide on the subject. In addition, he has helped spearhead the banking industry’s push for TCPA clarity before the Federal Communications Commission and has assisted on numerous appeals addressing hot-button TCPA issues.

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