Falcon v. TelevisaUnivision Dig.

1

INDIRA FALCON, individually and on behalf of all others similarly situated, Plaintiff, v. TELEVISAUNIVISION DIGITAL, INC., Defendant.

No. 8:23-cv-02340-TPB-UAM

United States District Court, M.D. Florida, Tampa Division

March 29, 2024

ORDER ON MOTION TO COMPEL ARBITRATION

TOM BARBER, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant TelevisaUnivision Digital, Inc.'s “Motion to Compel Arbitration and Stay Action,” filed on February 5, 2024. (Doc. 22). Plaintiff Indira Falcon filed a response in opposition on February 14, 2024. (Doc. 24). Defendant filed a reply on February 29, 2024. (Doc. 32). After reviewing the motion response, reply, court file, and record, the Court finds as follows:

Background^[1]

This case arises under the Video Privacy Protection Act (“VPPA”). Defendant TelevisaUnivsion Digital Inc. operates ViX.com, a Spanish-language streaming service. To view video content, Plaintiff Indira Falcon created a ViX.com account and then registered for a premium account on April 14, 2023. On each of these two occasions, Plaintiff “agreed” to the Terms of Use agreement requiring mandatory arbitration of most issues.

In her one-count purported class action complaint, Plaintiff alleges that Defendant violated the VPPA by disclosing her and other class members' ViX.com viewing history to Facebook via a “Meta pixel” embedded in the ViX.com website. Defendant has moved to compel arbitration of Plaintiff's claims, relying on the arbitration provision in the Terms of Use. Plaintiff argues that this arbitration agreement is unenforceable because Defendant's website did not conspicuously disclose to Plaintiff that she was agreeing to arbitration. Plaintiff therefore believes that she lacked inquiry notice of the arbitration agreement.

Legal Standard

The Federal Arbitration Act (“FAA”), 9 U.S.C §§ 1 et seq., “embodies a liberal federal policy favoring arbitration agreements.” Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005) (internal quotation omitted). In fact, the Eleventh Circuit Court of Appeals has “recognized that the FAA creates a presumption of arbitrability such that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 2016) (internal quotations omitted). In addition, “Florida public policy favors arbitration, and any doubts concerning the scope of an arbitration agreement should be resolved in favor of arbitration.” Dye v. Tamko Bldg. Prods., Inc., 275 F.Supp.3d 1314, 1317 (M.D. Fla. 2017) (quoting BKD Twenty-One Mgmt. Co., Inc. v. Delsordo, 127 So.3d 527, 530 (Fla. 4th DCA 2012)), aff'd, 908 F.3d 675 (11th Cir. 2018).

“Under the FAA, a party seeking to compel arbitration must demonstrate that (a) the plaintiff entered into a written arbitration agreement that is enforceable under ordinary state-law contract principles and (b) the claims before the court fall within the scope of that agreement.” Garcia v. Church of Scientology Flag Serv. Org., Inc., No. 8:13-cv-220-T-27TBM, 2015 WL 10844160, at *3 (M.D. Fla. Mar. 13, 2015) (internal quotations omitted).

Analysis

The Court must determine whether, considering these particular facts, there is a valid agreement to arbitrate. See Adams v. Lashify, Inc., No. 6:23-cv-243-PGB-DCI, 2023 WL 5573822, at *2 (M.D. Fla. Aug. 29, 2023) (“The existence of a valid arbitration agreement is a threshold issue for determining the propriety of a motion to compel arbitration.”). When analyzing this issue, a federal court must “‘apply ordinary state-law principles that govern the formation of contracts' to determine whether there is a valid agreement to arbitrate under the FAA.”^[2] Id. (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).

“In Florida, an enforceable contract requires offer, acceptance consideration, and sufficient specification of essential terms.” Id. (citing St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004)). For a contract to be formed, there must be “mutual assent to certain and definite contractual terms. Without a meeting of the minds on all essential terms, no enforceable contract arises.” Id. (quoting Matter of T&B Gen. Contracting, Inc., 833 F.2 1455, 1459 (11th Cir. 1987))

“Contracts available on the internet come in different forms[,]” including “clickwrap” and “browsewrap” agreements. Temple v. Best Rate Holdings LLC, 360 F.Supp.3d 1289, 1302 (M.D. Fla. 2018) (citing Berkson v. Gogo LLC, 97 F.Supp.3d 359, 396-98 (E.D.N.Y. 2015)). Clickwrap agreements “require a user to affirmatively click a box on a website acknowledging awareness of and agreement to the terms of service before he or she is allowed to proceed with further utilization of the website.” Id. (quoting Berkson, 97 F.Supp. at 397). Courts generally find these agreements enforceable because they “require the user to physically manifest assent,” putting the user “on inquiry notice of the terms assented to.” Id. (quoting Berkson, 97 F.Supp.3d at 397).

In contrast, a browsewrap agreement “consists of a notice on a website stating that the user is agreeing to and is bound by the website's terms of service by merely using the website.” Id. (citing Berkson, 97 F.Supp.3d at 395). This notice contains hyperlinks that, when clicked, bring the user to a separate browser or window containing the full terms of the agreement. See Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014). Although courts examine browsewrap agreements more closely, a browsewrap agreement may be valid even if the user never opens the terms or sees the full agreement, as long as the browsewrap agreement “give[s] at least reasonable, constructive, or inquiry notice of the website's terms to the user, and the user [ ] exhibit[s] ‘unambiguous assent' to the terms.” Temple, 360 F.Supp.3d at 1302 (quoting Berkson, 97 F.Supp.3d at 39596). Courts employ a fact-based analysis to determine whether a user had reasonable notice of the website's terms. Id. “The ‘conspicuousness and placement' of hyperlinks to terms, notices of the terms, ‘and the website's general design all contribute to whether' an individual would have reasonable notice of a browsewrap agreement.” Id. (quoting Nguyen, 763 F.3d at 1177).

Some courts, including courts in this District, have enforced “hybrid browsewrap agreements,” described as “browsewrap agreements that resemble clickwrap agreements in that they require the user ‘to affirmatively acknowledge the agreement before proceeding with the use of the website,” often by clicking a button to create an account, sign up for a subscription, or complete an order. Id. at 1303-04. These hybrid agreements “weigh[] in favor of valid notice” because a user must “affirmatively acknowledge the agreement before proceeding with use of the website.” Id. at 1303 (quoting Nguyen, 763 F.3d at 1176-77).

The agreements at issue here appear to be hybrid browsewrap agreements. To create an account on ViX.com, a user must enter his or her e-mail address and create a password. The following statement appears immediately between the password field and a button labeled “Create account:”

By clicking ‘Create account,' I agree to the Terms of Use and acknowledge that my personal information will be used in accordance with ViX's Privacy Policy.

Users who register for a premium account must enter their billing information and click “Subscribe.” The following statement appears immediately below the billing information section and above the “Subscribe” button:

By clicking ‘Subscribe,' you agree to the terms above and additional subscription terms in our Terms of Use.

Both statements are in white font against a black background. The phrases “Terms of Use” and “Privacy Policy” are bolded but not underlined and contain hyperlinks to the respective policies. The “Create account” and “Subscribe” buttons are bright orange. Users cannot register for accounts or premium accounts without clicking the orange buttons to complete this process.

The “Terms of Use” hyperlinks linked to ViX's Terms of Use agreement. This Terms of Use agreement was in effect when Plaintiff created her account and registered for a premium subscription in April 2023. The first page of the Terms of Use agreement states in all capital letters that the agreement contains a mandatory arbitration provision. Section 21 contains the full arbitration agreement, also written in all capital letters.

In this case, Plaintiff opposes arbitration by arguing that she was not on inquiry notice of the arbitration provision. In her response, Plaintiff narrowly focuses on the font characteristics and hyperlinks to argue that the text does not sufficiently contrast with the rest of the website. As previously noted, browsewrap agreements are enforceable where the hyperlinks to a terms of use agreement are sufficiently conspicuous. Defendant, citing several cases but relying primarily on Adams, argues that the ViX “Terms of Use” hyperlinks were conspicuous enough to provide Plaintiff with inquiry notice because they were placed “approximately atop and contrasting with” the orange completion buttons that Plaintiff needed to click to continue using the website.

Plaintiff argues that the cases cited by Defendant, such as Adams, are distinguishable from the present case because the hyperlinks were underlined, colored blue, or both. She argues Defendant “buried” the “Terms of Use” hyperlinks on its website, making this case more analogous to Johnson v. Whaleco, No 5:23-cv-403-GAP-PRL (M.D. Fla. Oct. 13, 2023), Fridman v. 1-800 Contacts, Inc., 554 F.Supp.3d 1252 (S.D. Fla. 2021), and Valiente v. Nexgen Global, LLC, No. 22-cv-22480-ALTMAN/Reid, 2023 WL 6213583 (S.D. Fla. Sep....