United States: Placement Of Checkbox Can Make Or Break A Clickwrap Agreement

Richard Raysman is a Partner in Holland & Knight's New York office

The enforceability of a wrap agreement (browsewrap, clickwrap and shrinkwrap) can often turn on what to the untrained eye may be mere minutiae. Such minutiae can include the nuances of the design of a website. For example, in Friedman v. Guthy-Renker LLC, No. 2:14-cv-06009-ODW, 2015 WL 857800 (C.D. Cal. Feb. 27, 2015), a recent case from the Central District of California, the court was faced with objections to a website's browsewrap agreement. As the decision ultimately illustrated, the enforceability of these agreements can depend at least in part on the location of text relative to a checkbox a customer must click in order to manifest the requisite assent.


In a putative class action, the plaintiffs, including Amy Friedman (Friedman) and Krystal Henry-McArthur (Henry-McArthur), sued Guthy-Renker, a "direct marketing" corporation for allegedly selling them conditioner (WEN) that caused each of the plaintiff's hair to fall out. Specifically, they alleged that the hair loss caused by WEN was the result of a design and/or manufacturing defect. According to these plaintiffs, such a defect raised seven causes of action, including, inter alia, breach of warranty, strict products liability, and failure to warn negligence.

Guthy-Renker responded in its Motion to Dismiss by averring that its website Terms and Conditions, and the binding arbitration and class action waiver clauses contained therein, precluded the sort of litigation attempted by Friedman, Henry-McArthur, and the other plaintiffs. Assent to such Terms and Conditions required customers to "click[] an interactive check box" on the final checkout screen. Neither Friedman nor Henry-McArthur disputed that they had (1) clicked the interactive check box, nor (2) that the Terms and Conditions included class action waiver and binding arbitration clauses. Rather, these plaintiffs alleged that clicking the interactive check box did not constitute a manifest of knowing assent to such clauses.

Ultimately, the court arrived at opposite conclusions for the two plaintiffs named above, largely premised on the differences in the structure and design of Guthy-Renker's website at the time each respective purchase was made. See Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014) (holding that often website design can dictate the validity of an online contract) Therefore, a detailed explanation of the design of the pages of the website accessed by the plaintiffs is warranted.

At the time of Friedman's purchase, the final checkout screen, titled "Your Shopping Cart," was where the Friedman imputed her contract, billing, and payment information. In close proximity to the bottom of that page, there were two lines of text and the interactive checkbox. The text was above the checkbox. The text read: "By checking this box, you are electronically signing your order and authorizing us to charge payments against credit card provided above." The interactive checkbox was labeled "Agree to terms," and notes that clicking the box is required to complete the purchase. There is a "Helpful Links" section in an offset frame, and the third is to the "Terms & Conditions" page.

Guthy-Renker changed its website in two material ways between Friedman and Henry-McArthur's purchases. First, when Henry-McArthur made her purchase, the language directly next to the interactive checkbox stated "Agree to Terms and Conditions." This language is bold, underlined, and hyperlinked. Second, the credit card authorization language is now below the checkbox, and the modified language included a reference both to customer's credit card approval and assent to the Terms and Conditions.

Legal Conclusions/Analysis

The differences between the website design at the respective times of purchase by Friedman and Henry-McArthur were dispositive, as Friedman's claims survived a motion to dismiss, whereas Henry-McArthur's did not.

In citing to Nguyen, the court characterized the agreement signed by both plaintiffs to be browsewrap agreements, as neither agreements included a list of terms and conditions alongside the interactive checkbox when completing the purchase, and therefore could not be classified as clickwrap agreements. 763 F.3d at 1176. Browsewrap agreements are enforced if either (a) the consumer had actual notice of the agreement, or (b) the browsewrap agreement "resembles a clickwrap agreement - that is, where the user is required to affirmatively acknowledge the agreement before proceeding with the use of the website." Id. Absent the fulfillment of either of these conditions, a browsewrap agreement will be enforced if the website puts a "reasonably prudent user on inquiry notice of the terms of the contract ... [This determination] depends on the design and content of the website and the agreement's webpage."

Friedman's Agreement

With respect to the layout in place at the time of Friedman's purchase, the court focused on whether the website design is a "browsewrap that resembles a clickwrap." Specifically, its conclusion was premised mostly on where the text purporting to consummate the agreement was placed with respect to the checkbox. As the lines of text above the interactive checkbox referred solely to credit card authorization, a reasonably prudent person would think that the checkbox is only an acknowledgment of credit card authorization, and not an assent to the Terms and Conditions. The design also did not create a browsewrap akin to a clickwrap since the text itself advised the customer only of his agreement to the aforementioned payment authorization, and not to anything else.

It then preceded to the question of whether the browsewrap agreement agreed to by Friedman constituted an agreement that, through the design and content of the website, would put a reasonable person on inquiry notice of its terms. According to the court, the design and content presented to Friedman was insufficient to establish inquiry notice. Again, the court cited to the placement of the checkbox and its proximity (that is, below) the credit card authorization language. In addition, the court faulted Guthy-Renker's choice of language in labeling the checkbox itself. The checkbox was labeled "Agree to terms," and the uncapitalized use of a common term could not engender constructive notice in a user that agreement to "terms" was tantamount to an agreement to the "Terms & Conditions" linked below. Rather, a user could just as easily believe that "terms" referred to the credit card authorization language situated directly above the check box.

Accordingly, Friedman had not assented to the Terms & Conditions and could thus not be bound by the arbitration provision therein.

Henry-McArthur's Agreement

By the time Henry-McArthur purchased WEN, Guthy-Renker had made material changes to its website, and such changes were sufficient to uphold the company's Terms and Conditions against purchasers. In fact, according to the court, this iteration of the website "fits neatly into the requirements of Nguyen." Each change vitiated "principal concerns" of the design of the website when Friedman made her purchase. The language directly abutting the checkbox replaced "Agree to terms" with "Agree to Terms and Conditions." "Terms and Conditions" is in bold, hyperlinked, and underlined. Therefore, the checkbox is now unquestionably referring to the "Terms and Conditions" text adjacent to the box that is also hyperlinked there and separately further down on the page. Perhaps more important, the credit card authorization text is below the checkbox, and the language is modified to include references to the Terms and Conditions. The change in placement and content of the language associated with the checkbox mitigates the potential confusion associated with the design and the content of the website when visited by Friedman. As the language no longer precedes the checkbox, and does not refer solely to the credit card authorization, the purchaser would not intuit that signing the checkbox manifests assent only to the credit card authorization. In sum, it's reasonable for a person to believe that language immediately above a checkbox is the language to which signing the checkbox affirms. The changes to the website detailed above remove such a conclusion from a reasonable person. Therefore, Guthy-Renker had assented to be bound to the terms within this browsewrap as a clickwrap agreement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions