Eleventh Circuit Refuses To Enforce Arbitration Of TCPA And FTSA Claims

Not all online agreements are created equal, especially when it comes to enforceable arbitration clauses. In Valiente v. NexGen Global, LLC, 2025 WL 3140480 (11th Cir. Nov. 10, 2025), the Eleventh Circuit upheld the district court's decision to decline enforcement of an arbitration clause contained within NexGen's website terms and conditions, leaving it open to a potentially costly Telephone Consumer Protection Act (TCPA) and Florida Telephone Solicitation Act (FTSA) class action in federal court.

The case focused on whether NexGen's browsewrap, clickwrap, or double opt-in methods of consent on its website could establish mutual assent to arbitration of the TCPA and FTSA dispute. The court examined each approach and found deficiencies across the board. Notably, the "Terms of Use" hyperlink was located at the bottom of a long, cluttered, visually distracting webpage in small, white font — hardly sufficient to provide reasonable notice of contractual obligations, including arbitration clauses. The court also noted that when the consumer clicked through the website before checking out, the arbitration provision was never properly referenced in a manner that would have put the consumer on notice of that clause's existence.

This ruling highlights a critical lesson for companies: When relying on online contracts, the design and messaging must clearly indicate that users are agreeing to specific terms, including arbitration provisions. Clear, conspicuous notices and straightforward language are essential. Courts remain wary of agreements hidden in fine print or obscured by webpage clutter. Ultimately, mutual assent depends on unmistakable conduct and transparent communication — especially in today's digital landscape where the line between consent and costly litigation can easily blur.

At Buchanan, our team provides guidance on TCPA compliance and offers robust defense strategies against TCPA-related litigation, including advising companies on how to effectively enforce online agreements and craft clear and enforceable website terms of service. Contact us with any questions regarding TCPA compliance or defense strategies your company may be facing.

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.