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Florida Fourth DCA affirms trial court's denial of defendant's motion to compel arbitration based on "browsewrap" link to arbitration agreement on defendant's website

On February 15, 2017, in v. McCants, No. 4D16-3384, affirmed the trial court’s denial of the motion of the defendant, a seller of dietary supplements being sued in a product liability action by an internet purchaser, to compel arbitration based on a “browsewrap” link to an arbitration agreement on the defendant’s website. The 4th DCA noted that there at least two types of agreements found in internet sales: “clickwrap” agreements, which direct a purchaser to the terms and conditions of the sale and require the purchaser to click that they have read those terms and conditions; and “browsewrap” agreements, which merely provide a link to the terms and conditions without requiring the purchaser to acknowledge that he or she has read the terms and conditions prior to completing the sale. The Court noted that clickwrap agreements are generally enforceable, but that browsewrap agreements have only been enforced “when 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 reasonably prudent person on inquiry notice.” The Court additionally noted that “[u]niformly, courts have declined to enforce “browsewrap” agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them.”